CRIMINAL LAW - Sentence - early guilty plea - aggravated burglary - armed with an offensive weapon - significant criminal history - discount of 25% for early plea of guilty

Crimes (Sentencing) Act 2005 ss 7, 35

Crimes Act 1900 (ACT) s 116

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

R v Rubino (Unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 16 December 2013)

Legal Aid ACT (Offender)

1. The offender adheres to a plea of guilty entered at the earliest reasonable opportunity to the offence that, on 27 February 2014, he committed an aggravated burglary in that he remained within a building with intent to cause harm (s 312 of the Criminal Code 2002 (ACT)). The aggravating feature is that he was armed with a knife. The offence carries a maximum available penalty of 20 years' imprisonment.

2. I take into account on sentence an additional offence of destroying or damaging property (s 116(3) of the Crimes Act 1900 (ACT)). This offence carries a maximum available penalty of two years' imprisonment.

3. The offender has been in custody since his arrest on the day of the offence and the sentence should date from that day.

4. At about 12.20 pm on Thursday, 27 February 2014, the offender was at his residence which was close to that of the complainant. The offender knew the complainant and the complainant's adult son.

5. The offender awoke in the middle of the day and formed the opinion that the complainant's son had stolen his shoulder bag. It contained money and Xanax tablets. He became very upset.

6. He went to the premises of the complainant and his son. From the backyard, he began to yell, demanding the return of $500 and his Xanax tablets.

7. He then bashed on a security screen door at least a dozen times, yelling out comments such as, "Come out. Come out. We can work something out." When the door would not yield to him, he said that he was coming in through the window. He proceeded to do so, smashing the kitchen window and entering the premises.

8. The complainant armed himself with a large walking stick. The offender entered the living room, where the complainant was located. By that stage, the offender had armed himself by picking up a kitchen knife. He must have obtained it when he passed through the kitchen in order to enter the living room. The knife in question had a blade about 20 or 25 centimetres in length. The offender threatened to harm the complainant. The complainant held up his walking stick to protect himself against the knife. In fact, the offender's intention seems to have been to get past the complainant and reach the complainant's son, whom the offender believed to be elsewhere in the house.

9. When the complainant held up his walking stick, the offender fled from the living room to the laundry, shutting the laundry door behind him. The complainant warned the offender to do himself a favour and leave because the police were coming, but the offender said that he would not leave without his money and drugs.

10. Soon after, the police arrived and observed damage to the window and to the door through which the offender had attempted to enter the premises. When police were present the offender opened the laundry door and yelled, "Give me the money and the drugs." The offender also said to police, "They broke into my house. You should go and see what they did to it." The police arrested the offender, who yelled a parting shot at the complainant when he was being conveyed from the scene: "See you when I get back." The police searched the laundry and found the kitchen knife in question, which had been placed in a bucket.

11. The offence is of reasonably low objective seriousness when compared to the range of offences that fall within s 312 of the Criminal Code 2002 (ACT).

12. It is true that the offence occurred at residential premises when someone was at home and known to be at home by the offender. However, it was in the middle of the day and the offender was known to the complainant and the intended victim, his son. It could be characterised as a very unpleasant altercation between neighbours.

13. The offender made a spontaneous decision to approach the complainant's son and, in effect, to force him to return property that the offender believed had been stolen from him. It was an entirely impulsive incident. However, the offender was quite persistent, yelling from the backyard and then, when attempts to break in through a door failed, he broke in through a window. He did not arm himself until after he gained entry, when he impulsively seized a knife from the kitchen. There was a confrontation between the offender and the complainant. There was a direct threat to the complainant although no actual violence was used. The incident was of a relatively short duration. When the complainant defended himself by holding up his stick, the offender removed himself to the laundry but he did not leave the house. He continued to demand his money and drugs. I accept that it would have been frightening for the complainant, but not to the same degree that occurs in many such offences.

14. The Crown has characterised the objective seriousness of this matter as somewhere in the middle range, perhaps towards the lower end of the middle range. I see the matter differently. In my view it is an unusual case of aggravated burglary. It is difficult to assess its seriousness against other cases. It is of significant seriousness but, in all the circumstances, it is towards the lower end of objective seriousness.

15. The offender is 45 years of age. He has an unenviable criminal history, extending back several decades. It includes many matters of dishonesty and violence. Probably the most serious matter is one of wounding with the intent to cause grievous bodily harm, for which he was sentenced in 1999. It was originally charged as a more serious matter. It resulted in a significant sentence of imprisonment. Prior to that, the offender had been sentenced in Queensland for numerous matters of assault and dishonesty, as well as drug matters.

16. The offender came to the ACT in 2001. Since then, he has come before the courts on several occasions in relation to matters of dishonesty, violence and the possession of drugs. Most recently, in 2012 he came before Penfold J and was sentenced for offences of burglary and theft that occurred in 2011. Her Honour imposed an 18 months' sentence which was suspended after ten months upon the offender entering into a good behaviour order for a period of 12 months. He was not on conditional liberty at the time that he committed the offence before me.

17. The offender comes from a deprived background. The circumstances of his upbringing have not been fully fleshed out. However, we do know that he was raised in Queensland and is one of five or six children. His parents separated when he was nine years of age. His mother was an alcoholic. He is said to have been the victim of physical abuse as a child. After the separation, his mother formed a new relationship and had two further children. The offender felt rejected by her. The offender has little ongoing contact with his family in Queensland. He has had several failed relationships, one of which ended when he stabbed his partner. He completed Year 10.

18. He has a longstanding history of polysubstance abuse. He abused alcohol until about 2001, when he was approximately 30 years of age, and thereafter he abused amphetamines. He maintains that, of more recent times, he has used amphetamines on a limited basis only. He has abused prescription medication. When he was drug tested on admission to the Alexander Maconochie Centre, methylamphetamines and benzodiazepines were detected.

19. Since moving to Canberra in 2001, the offender has undertaken part-time employment as a labourer. When he arrived, he was living with a female friend who also had mental health issues, but that relationship faltered.

20. The offender has been on antidepressant medication. Unfortunately the nature of the offender's psychological problems is not the subject of detailed evidence. The offender has told his legal representative that he suffers from post-traumatic stress disorder. It is therefore difficult to know whether and to what extent the offender's psychological problems may have impacted upon his culpability for the subject offence and on the utility of using him as a vehicle for a message of general deterrence. It is also difficult to know whether his psychological problems will make his time in custody more difficult; there is no evidence to support such a proposition. I am informed that he is on strict protection. Consequently, there is limited opportunity for him to engage in drug and alcohol programs while in custody.

21. The sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT) relevantly include; punishment, general and specific deterrence, accountability and denunciation.

22. Rehabilitation is difficult to assess. The presentence report says that the offender is at medium to high risk of reoffending. His criminal history would support that assessment. However, he suffers from problems of polysubstance abuse and possibly from psychological issues and I infer that, if those matters were addressed, the risk of reoffending would be lower. As I have mentioned, it will be difficult to address substance dependence while he is in custody if he remains in strict protection. I am not aware of any steps that have been taken to diagnose or treat his psychological problems.

23. In considering sentencing patterns, I have had regard to the sentencing database. It is of limited use, but it indicates that, in this jurisdiction, sentences exceeding three or four years are uncommon despite the maximum penalty of 20 years' imprisonment.

24. Decisions that I delivered in R v Rubino (unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 16 December 2013) (Rubino) and R v Minnis [2014] ACTSC 268, concern much more objectively serious situations and five years' imprisonment was the starting point in relation to those matters (although I note that Rubino is subject to an appeal on the basis that the sentence is manifestly excessive). The High Court in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357, has made it quite plain that the maximum available penalty is a critical parameter in relation to any sentencing exercise.

25. The starting point for the sentence is three years' imprisonment, less 25% for the utilitarian value and other s 35 matters associated with the plea. The offender is convicted and sentenced to 25 months' imprisonment. I fix a nonparole period of 14 months from 27 February 2014 to 26 April 2015. The offender is eligible for release to parole on 26 April 2015. The balance of the term of the sentence is 11 months and the sentence will therefore expire on 26 March 2016.

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