[2017] ACTSC 292

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentence - aggravated burglary - attempt to take motor vehicle without consent - damage property - significant criminal history - history of drug addiction - alcohol use - good prospects for rehabilitation - degree of remorse - offending and alcohol use whilst on Intensive Correction Order - conviction requires cancellation of Intensive Correction Order - term of imprisonment imposed

Crimes (Sentence Administration) Act 2005 (ACT) s 65

SCC 62 of 2015; SCC 81 of 2015; SCC 110 of 2017; SCC 247 of 2017; SCC 249 of 2017

1. Thor Kristiansen, you appear before me today to be sentenced with regard to one offence of aggravated burglary, one offence of attempting to take a motor vehicle without consent and one offence of damaging property. All of these offences occurred on 22 April 2017. At that time, you were subject to an Intensive Correction Order imposed by myself on 31 January 2017 for an offence of trafficking in methylamphetamine. At that time, I sentenced you to four years imprisonment to be served by way of an Intensive Correction Order.

2. The offence of aggravated burglary, contrary to s 312 of the Criminal Code 2002 (ACT) (the Criminal Code), carries a maximum penalty of 20 years imprisonment, a fine of $300,000, or both. The offence of attempting to dishonestly take a motor vehicle, contrary to s 318 of the Criminal Code by virtue of s 44 of the Code, carries a maximum penalty of five years imprisonment, a fine of $75,000, or both. The maximum penalty for the offence of damaging property, contrary to s 116(3) of the Crimes Act 1900 (ACT), is two years imprisonment, a fine of $7,500, or both.

3. By virtue of the provisions of s 65 of the Crimes (Sentence Administration) Act 2005 (ACT), upon recording a conviction against you with respect to any of these offences I am obliged to cancel your Intensive Correction Order and order that the remainder of your sentence be served in full or in part by fulltime detention unless it is not in the interests of justice to do so.

4. With regard to the offence of aggravated burglary, at about 8.35 pm on Saturday 22 April 2017, you and your cooffender broke into residential premises in Griffith through a front window and stole property, including an electronic device, house and car keys, clothing and food items. The value of the property taken was approximately $1,050.

5. At the time of this offence the male resident of the premises was present together with a male friend. The occupants of the premises were alerted to the offence by a noise and confronted you and your cooffender outside the premises. You both denied any involvement. When the occupants returned to the house they noticed that the property was missing and they called police. Police attended at about 8.45 pm. They located blood on a windowsill at the front of the house as well as in other locations.

6. While investigating, police heard a rustle from bushes located across the road from the house and saw you and your cooffender walking away from the bushes. You were stopped by police and you were observed to have a cut on your hand which was wrapped in a bloodstained cloth and your clothing was also observed to be bloodstained. The stolen property was subsequently located in the bushes from which you had emerged.

7. You were arrested by police at the scene on 22 April 2017 and you have remained in custody since that time. On 8 May 2017, you pleaded guilty to the charge of aggravated burglary in the Magistrates Court and you were committed to this court for sentence. While the prosecution case against you is very strong, your plea of guilty nevertheless had a significant utilitarian value and was entered at an early time. I will reduce by approximately 25 per cent the otherwise appropriate sentence with respect to this offence in order to mark your plea of guilty.

8. Sometime between 3 pm and 10 pm on Saturday 22 April 2017, you attempted to take a blue Honda Civic from the car park of the Manuka Child Care Centre and in the course of doing so the ignition barrel and plastic surround were damaged. This is the basis of the charges of attempting to take a motor vehicle without consent and damaging property. Police were notified of the commission of this offence by the owner of the vehicle at about 11 pm on 22 April 2017.

9. I note that the prosecution Statement of Facts refers to the owner discovering the vehicle having been broken into at 11 am on 22 April 2017, but this is clearly an error. The Statement of Facts states that the owner did not park his vehicle at that location until 3 pm on that date. I further note that the Australian Federal Police Statement of Facts refers to the owner of the vehicle having discovered the break-in at 11 pm on 22 April 2017.

10. There is also evidence that a significant amount of your blood was found in the vehicle. The almost inevitable inference is that you suffered a cut to your hand during the commission of the offence of aggravated burglary at about 8.45 pm on 22 April 2017, leading to the further inference that the offence of attempting to dishonestly take a motor vehicle occurred sometime after 8.45 pm and before 10 pm that evening.

11. You were charged by way of summons with the offence of attempting to take a motor vehicle without consent, or with the offences of attempting to take a motor vehicle without consent and damaging property. You first appeared in the Magistrates Court on 28 August 2017 with respect those charges and entered pleas of guilty on the next mention date on 8 September 2017.

12. The prosecution case against you with respect to these charges was again quite strong, but I again accept that your pleas had significant utilitarian value and were entered at an early opportunity. I will also reduce the otherwise appropriate sentences for these offences by approximately 25 per cent to reflect your pleas of guilty.

13. You have a very lengthy criminal history, which disentitles you to leniency in the present proceedings. A PreSentence Report was prepared for the purposes of the sentence proceedings. It was noted that whilst previously your response to community supervision had been considered poor, after you were sentenced to the Intensive Correction Order in January this year your compliance with that order was considered satisfactory. In addition, unlike previous periods in custody, during your present remand there have been no recorded disciplinary incidents.

14. Your childhood was dysfunctional due to neglect by your mother and the fact that your father was often in prison. Your father was a violent alcoholic. You apparently witnessed many incidents of violence in your childhood and you yourself were also the subject of violence by your father. I accept that the effects of your childhood continue to negatively affect you to the present day. In that regard, at age 12 you were placed in foster care, but you absconded on a regular basis. Your childhood appears to have been unstable except for a period in your mid to late teenage years when you experienced a period of stability residing with your paternal grandmother.

15. You told the author of the PreSentence Report that you believed your grandmother's death in 2006 was a trigger for you increasing your consumption of illicit substances and engaging in criminal behaviour. You told the author of the report that you have minimal family support within the ACT. You have two children from a previous relationship. However, [redacted for legal reasons].

16. You reported that you are currently in a relationship with the mother of your two youngest children. This relationship commenced approximately six years ago and your partner continues to support you and has confirmed that you can return to her accommodation when you are released.

17. Your numeracy and literacy skills are limited as you left school after you completed year 7. You have a limited employment history, primarily casual or parttime labouring. Your employment history has been adversely affected by your antisocial behaviours and the periods that you have spent in custody. You told the author of the PreSentence Report that you commenced your consumption of alcohol and cannabis at approximately 13 years of age. At 18 years of age you commenced the use of methylamphetamine, which escalated to problematic levels.

18. You attended and completed alcohol and other drug interventions in the past, including residential programs in 2005 and 2009 and also other programs whilst serving periods of imprisonment. You completed the Solaris program in custody in January 2012. You entered the Karralika residential rehabilitation program during June 2015 after being granted bail by Refshauge J. You completed that program in or about March 2016, following which you transferred to the Nexus program which provided a structured day through a halfway house environment. During the period in which you were assessed for an Intensive Correction Order through to 24 April 2007 you were subject to regular drug screening. The results of the drug tests did not detect any illicit substance use during this period.

19. During your present custodial episode you have regularly engaged in individual counselling with an organisation called EveryMan Australia. You have also completed a number of programs within the Alexander Maconochie Centre (AMC). You told the author of the PreSentence Report you accepted responsibility for your offending behaviour, which you attributed to your alcohol intoxication. You claim to have no memory of committing these offences. I note in that regard that a blood alcohol test administered after you were arrested on 22 April 2017 showed a reading of .150. I am prepared to accept that you were significantly affected by alcohol at the time that you committed the present offences.

20. It was the opinion of the author of the PreSentence Report that you have made considerable gains since your completion of the residential rehabilitation program in 2016 but that your associations within the community remain a concern as most of your associates have a criminal background. The author stated that should you limit your contact with negative influences and remain abstinent from the consumption of alcohol and illicit substances you could add to your considerable gains. You were assessed as at medium to highrisk of general offending, but if you continue to engage with oneonone counselling and other appropriate interventions to address your identified risk factors this assessed risk could be reduced.

21. I note that it is apparently your intention, when you are released from custody and when you are able to, to reside with your partner, probably in Queensland in order to try and make a fresh start. I accept the opinion of the author of the Pre-Sentence Report that you have made significant gains since you were granted bail by Refshauge J. It is a matter of significance to my mind that there has been no use of substances which you previously abused, such as methylamphetamine, cocaine, benzodiazepines and cannabis since you were granted bail in June 2015.

22. I accept that you relapsed into alcohol use at the time of these offences, but the fact that you relapsed into alcohol use does not excuse or even adequately explain your commission of these offences. It may be, as you say, that you have no recollection of these offences, but there is nothing in the material before me to suggest that you were so intoxicated at the time that you committed these offences that you did not know what you were doing. Many people recovering from drug or alcohol addiction will relapse during the course of their recovery, but there is a difference between relapsing into substance abuse and relapsing into criminal behaviour.

23. If you had merely breached the terms of your Intensive Correction Order by using alcohol some argument may have been mounted before the Sentence Administration Board that your Intensive Correction Order should not be cancelled. The commission of the present serious offences so soon after the Intensive Correction Order was imposed makes it inevitable to my mind that the order must be cancelled and that you must serve the remainder of the sentence by way of fulltime imprisonment.

24. While sentences of imprisonment are the only sentences that can satisfy the requirements of sentencing for these offences, I do not suggest that you have not made gains in dealing with substance abuse and criminal offending since being released on bail in June 2015. You are clearly still capable of rehabilitation if you choose to maintain the commitment that you demonstrated from June 2015 until April 2017. It is important that you maintain your commitment to addressing substance abuse while you are in the AMC.

25. I take into account the contents of the CADAS assessment. I note that you expressed remorse to the author of the report, stating that you were disappointed and ashamed with yourself and that you felt that you had let people down. You reported a desire to move forward and to learn from your mistakes. You told the author of that report that you had drunk alcohol with a mate on 22 April 2017 after having an argument with your wife. You said that you recognised that next time you are having personal problems in your life you needed to reach out for help.

26. You also expressed remorse for your actions in a letter which you wrote to me and which was tendered during the sentence hearing. I accept that your remorse is genuine. I also take into account the evidence which you gave at the sentence hearing.

27. You were arrested on 22 April 2017, as I have already said, and you have been in custody since that date. I was advised by your counsel that you served 80 days presentence custody before the Intensive Correction Order was imposed in January this year. I will backdate the sentence to be imposed upon cancellation of the Intensive Correction Order to take into account those 80 days. In my opinion, the offences of 22 April 2017 should be seen as a single series of offences such that concurrency of sentences is appropriate. The principle of totality also calls for some concurrency of sentences for the offence of trafficking in methylamphetamine and the offences committed on 22 April 2017.

28. I will acknowledge the gains that you have made over the last two years and your improved prospects for rehabilitation by imposing a shorter than usual nonparole period. Ordinarily, with an offender with a criminal history like yours, I would have imposed a nonparole period of about 70 per cent of the total sentence. I will set your nonparole period at approximately 40 per cent and I will recommend that the Sentence Administration Board carefully consider your progress within the AMC when considering any application for parole. As such, it is important for you in achieving your expressed objective of returning to your family that you maintain your commitment to avoiding drugs, which you have demonstrated over the last two years.

29. I record a conviction for the offence of aggravated burglary. The recording of that conviction means I must cancel your Intensive Correction Order, which I do. I am not satisfied that it is not in the interests of justice that the remainder of your sentence be served by way of fulltime imprisonment, and accordingly I order that you serve the fouryear sentence by way of fulltime imprisonment commencing on 1 February 2017 and expiring on 31 January 2021.

30. I impose a sentence of 22 months imprisonment for the offence of aggravated burglary, which I have reduced from two years and six months in order to reflect your plea of guilty. I record convictions for the offences of attempting to take a motor vehicle without consent and damaging property and impose sentences of six months and three months imprisonment respectively with respect to those offences, which I have respectively reduced from sentences of eight months and four months in order to reflect your pleas of guilty.

31. Those sentences will be served concurrently with the sentence imposed for the offence of aggravated burglary. All of the sentences for offences committed on 22 April 2017 will commence on 1 February 2020 and expire on 30 November 2021. The aggregate sentence is therefore one of four years 10 months imprisonment commencing on 1 February 2017 and expiring on 30 November 2021. I set a nonparole period of two years commencing on 1 February 2017 and expiring on 31 January 2019.

I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.