• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – burglary – theft – breach of good behaviour order – prospects of rehabilitation – meaning of sentencing practice – drug and alcohol treatment order made

Legislation Cited: Crimes Act 1900 (ACT) s 116(3) Crimes (Sentence Administration) Act 2005 (ACT) ss 107(1), 108 Crimes (Sentencing) Act 2005 (ACT) ss 7, 12A, 33(1)(za), 46K, 62, 63, 80W, 80Y Criminal Code 2002 (ACT) ss 308, 311 Sentencing Act 1991 (VIC) s 5(2)(b)

Cases Cited: Beniamini v Craig [2017] ACTSC 30 Dawson v The Queen [2019] ACTCA 9 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 Fusimalohi v The Queen [2012] ACTCA 49 Hili v The Queen [2010] HCA 45; 242 CLR 520 Kelly v Ashby [2015] ACTSC 346 R v BC [2019] ACTSC 233 R v Carberry [2020] ACTSC 96 R v Crawford (No 1) [2020] ACTSC 245 R v Forrest (No 2) [2017] ACTSC 83 R v Hawkins [2015] ACTSC 333 R v Horan [2020] ACTSC 189 R v Horne [2017] ACTSC 36 R v Kaihea [2020] ACTSC 17 R v Mathews [2019] ACTSC 262 R v McMahon [2014] ACTSC 280 R v McMahon (No 2) [2017] ACTSC 299 R v Pahl [2017] ACTSC 68 R v Sila [2015] ACTSC 64 R v Taylor (No 2) [2019] ACTSC 377 R v Tracey [2020] ACTSC 28 R v Tran [1999] NSWCCA 109 Rees v The Queen [2012] ACTCA 6 Sampson v De Haan [2016] ACTSC 327 Simonds v The Queen [2013] ACTCA 13 Tracey v The Queen [2020] ACTCA 51 Parties: The Queen (Crown) Joshua James Mathews (Offender)

Representation: Counsel E Wren (Crown) J Campbell (Offender)

Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)

File Number: SCC 151 of 2020

REFSHAUGE AJ:

Introduction

1. Sentencing is now a more complicated exercise than merely identifying the offence and applying a sentence to it, so as to mete out stern punishment. Justice is now seen as requiring a range of factors to be considered and a range of purposes to be addressed. In that context, Joshua Mathews has pleaded guilty to offences of burglary and theft and now stands for sentence for these crimes.

Facts

2. The facts tendered before me were admitted without objection, and without challenge to its contents was a Statement of Facts and some photographs of the stolen property. From them, I make the following findings.

3. On 1 June 2020, Mr Mathews jumped the side fence of a property in O’Connor, to which he had no permission or authority to enter.

4. He then went inside the residence on the property and proceeded to take a number of items that did not belong to him. A neighbour who saw Mr Mathews going to the property, and knew that he was not a resident, went to the front door and knocked several times. He went around to the side fence and Mr Mathews ran out of the front door onto the footpath. Other neighbours chased him and caught him in a laneway and, a short time later, police arrived and arrested him.

5. Police located a number of items on the road nearby which the neighbour told them Mr Mathews had dropped when he ran from the residence. They included an Apple MacBook laptop, a charger and accessories, some medications and a prescription, five pairs of sunglasses, some mixed Australian coins, a box of cufflinks, a portable power bank, various wallets and other miscellaneous items. There was no evidence before me as to the value of these items. It was clear from the photographs that one of the wallets contained some American bank notes and some medication. Another contained a card.

6. The owner of the premises later identified the property as his, which had been in the master bedroom of the residence. He stated that he had not given any permission to Mr Mathews to be on the premises or take the property. These facts constituted the offences of burglary and theft.

7. A woman, who was located by police in a motor vehicle parked in the driveway of the premises, later informed police that Mr Mathews had committed the burglary. At the time of his arrest, police assessed Mr Matthews as too intoxicated to be interviewed.

The Proceedings

8. After his arrest, Mr Mathews was brought before the ACT Magistrates Court on 2 June 2020 where he was charged with the burglary and theft offences. He did not apply for bail and was remanded in custody.

9. After one further adjournment, Mr Mathews entered a plea of guilty to the charges on 8 July 2020. On 22 July 2020 he was committed to this Court for sentence. It was indicated that he was seeking a referral to the Drug and Alcohol Sentencing List. He appeared first in this Court on 29 July 2020 and was listed for sentence before Loukas-Karlsson J on a date to be fixed.

10. Later, he appeared before Loukas-Karlsson J on 4 November 2020. Her Honour requested an assessment of Mr Mathews’ eligibility for Drug and Alcohol Treatment Suitability Assessments. He was found eligible, and on 6 November 2020, he maintained his plea of guilty and was convicted by her Honour of the two offences and then referred to me. I then ordered those Drug and Alcohol Treatment Suitability Assessments and listed the matter for sentence.

The Offences

11. Burglary is an offence contrary to s 311 of the Criminal Code 2002 (ACT) and attracts a maximum sentence of 14 years' imprisonment or a fine of $224,000, or both.

12. The seriousness of any particular offence is to be assessed by reference to a number of factors that the courts have identified over time. Apart from matters personal to the offender such as the age or criminal history of the offender, or whether they were offending while on conditional liberty, they include other matters such as whether damage was done in the course of burglary, unless separately charged, whether the offence was committed on residential premises, and whether any occupant was present. See, for example, Simonds v The Queen [2013] ACTCA 13, R v Forrest (No 2) [2017] ACTSC 83, R v Pahl [2017] ACTSC 68 and R v McMahon (No 2) [2017] ACTSC 299.

13. In this case, there were few of these characteristics, other than that the offence was committed at residential premises. It was otherwise an unremarkable version of the offence.

14. Theft is prohibited by s 308 of the Criminal Code and attracts a maximum penalty of 10 years' imprisonment or a fine of $160,000, or both. Judged by the maximum penalty, both offences are serious offences, with burglary being obviously more serious.

15. In relation to the theft, the nature and value of the property is important in assessing the seriousness of the particular offence. In addition, the inconvenience caused by the loss of particular property might be relevant as may also their sentimental value, in contradistinction to their monetary value (see, for example, R v Forrest (No 2) [2017] ACTSC 83, Sampson v De Haan [2016] ACTSC 327 and Rees v The Queen [2012] ACTCA 6).

16. In this case, the loss of the prescription medication could well have been, at least, of some considerable inconvenience as would the loss of the wallets, especially the one containing the medication and the card. That wallet also contained a photograph of a young girl likely the owner's daughter, obviously of some sentimental value. While possibly replaceable, I cannot assume that or the contrary without evidence. They do, however, show how disturbing such theft can be to the owners of the stolen property, quite apart from the feelings of violation of the home effected by the burglary.

17. Further, it must be noted that such offences are a blight on our community. People work hard for the property they acquire and the deprivation of such property is a significant matter. People also should be able to feel safe in their own homes. Many, though not all people, are insured against such events, but claims, while recompensing for damage or loss, nevertheless cause inconvenience and, of course, inevitably lead to increases in premiums for everyone (see R v Hawkins [2015] ACTSC 333).

18. As there was no objection to them or challenge to their contents, I admitted the following documents:

(a) a Pre-Sentence Report dated 6 November 2020;

(b) a Drug and Alcohol Treatment Assessment dated 7 December 2020;

(c) a Drug and Alcohol Sentencing List Suitability Assessment Report dated 7 December 2020;

(d) a Criminal History for Mr Mathews; and

(e) some letters of support for him, two from his mother, one from a close friend and one from the mother of Mr Mathews' son.

19. I make the following findings from this material.

20. Mr Mathews is 28 years old. He was born in Tamworth, New South Wales. He has three siblings. He has been in some conflict with his younger brother but is close to his sister. His older brother has a significant brain injury and Mr Mathews has provided him with great support. It is said that his older brother “idolises him”. Within the family, Mr Mathews' mother and father have maintained strong support for Mr Mathews, though his ongoing use of illicit drugs has caused many arguments.

21. The family relocated to Canberra when he was 13 years old, as a result of a tragic accident to his mother's brother who needed assistance. Mr Mathews played a significant part in providing that assistance. Indeed, it is clear that he has provided significant assistance and support to his family.

22. Mr Mathews left school at about Year 10 but without completing his Year 10 Certificate. His behaviour in school was poor and he was bullied. This led to him truanting and he was expelled. In part, these problems appear to have been aggravated by the Scheuermann's disease and Chronic Fatigue Syndrome with which he was diagnosed.

23. Since leaving school he does not appear to have had any further formal education or training apart from some recent programs while in custody. His employment history is unclear. It appears that after leaving school he worked at two jobs as a Disability Support Worker and as an employee at a supermarket. He later worked as a Disability Support Worker for the family business for about three years until his imprisonment in 2017. His mother described him as a “gifted” Disability Support Worker. Regrettably, this is not a job he can presently pursue as his criminal record has lost him his Working with Vulnerable People Approval and he is unlikely to have it returned in the near future. Most recently, when released on bail in 2018, he obtained employment almost immediately as a removalist at which he worked for five or six months.

24. Mr Mathews entered his first relationship when he was 18. Two years later he met another woman and they began a relationship which resulted in the birth of his son, now six years old. He is also regarded as a father to the other step-children of his son's mother. The relationship was a difficult one and ultimately ended. He is devoted to his son nevertheless, who appears also devoted to him. His son's mother describes him as a great father.

25. He later met another woman and, after some time, also entered into a relationship with her. Unfortunately, she had a heavy drug dependency and soon Mr Mathews was significantly involved with drugs. This led him into an antisocial drug-using peer group and he ended up in a very problematic lifestyle. As to the illicit substances, Mr Mathews has had extensive use. The accounts he gave to the various reporters differed somewhat, so it is not entirely clear what his usages of some substances were.

26. He first drank alcohol at age 12 and progressed to binge drinking in his teenage years. He reduced his consumption at about age 23 but still consumed about six to eight drinks, once a week. Whilst in the Alexander Maconochie Centre he attempted to brew alcohol for the football grand final leading to him being disciplined.

27. He commenced smoking cannabis when he was about 12 in reaction to being bullied at school, joining a group of older students who called themselves the “stoners group”. He progressed to being a dealer and consumer, but it seems he reduced smoking at about age 24, though he last admitted to its use about a few months ago.

28. When he was 24, however, he had difficulty in gaining access to his son and this emotional setback led him to try almost all the illicit drugs he could. He experimented with heroin which gave him such an intense enjoyment that he felt it would lead to addiction and he stopped consuming. He experimented with amphetamines, MDMA or ecstasy, cocaine, LSD, ketamine and GHB. He continued using many of these drugs for some time but gradually reduced the use of some, though he seems to have continued the use of most of them.

29. He has continued to use cocaine, consuming a few grams every other day before his th recent incarceration. He first used methamphetamines on his 24 birthday and immediately progressed to daily use. He used it initially by smoking but after a few years, progressed to consuming intravenously. He, most recently, was using three and a half to seven grams daily, especially during his recent offending.

30. [Redacted for legal reasons]. Since 2016, he has committed 38 offences.

31. They are all either traffic offences, mostly of a regulatory kind, except for two offences of drug driving, and apart from an offence of failing to answer his bail, four offences of possessing a knife, an offence of damaging property and an offence of trespass, they were all drug offences or dishonesty offences often associated with drug dependence. Thus, he has 13 convictions for drug possession or similar, one for drug supply and 12 offences for possessing goods suspected of being stolen, as well as one offence of receiving and obtaining property by deception.

32. He has been sentenced to a number of suspended terms of imprisonment and he was sentenced to an Intensive Correction Order in September 2019. While he has served a term of immediate imprisonment, he appears to have been remanded in custody from time to time. Since his arrest on 1 June 2020, however, he has remained in custody for a period of 196 days. During that time, he has completed a number of courses including the First Steps Alcohol and Drug Program, a number of booklet-based programs and a Hepatitis Education and Prevention Program.

33. He has had limited drug treatment of any kind. There were some limited attempts to engage in counselling under the Intensive Correction Order which seemed to cease when the government restrictions to address the COVID-19 pandemic made it difficult. While, for some of this, he could be criticised for not being as proactive as his asserted motivation would suggest, his attendance and assiduity at programs while on remand is perhaps some more recent indication of his current attitude and commitment.

34. Mr Mathews is currently in fair physical health. As noted earlier, he was, as a child, diagnosed with Scheuermann's disease which results in a rounding of the spine and causes him some back pain. He was also diagnosed with Chronic Fatigue Syndrome. He has some dental issues which require attention. He has had some contact with ACT Mental Health Services during crisis presentations. He also reported an overdose at age 12 which he described as intentional, as a way to get out of trouble. Otherwise, he is in reasonable mental health. His parents are happy to have him living with them as long as he engages genuinely in drug rehabilitation. They live in the ACT.

Conditional Liberty

35. On 23 January 2020, Mr Mathews was sentenced for offences of damaging property not exceeding the value of $5,000 and trespass. He was fined $300 for the trespass offence. The property damage offence, contrary to s 116(3) of the Crimes Act 1900 (ACT), attracts a maximum sentence of two years' imprisonment, a fine of $8,000 or both. He was sentenced to six months' imprisonment to be suspended after 2 months and 28 days on the condition that he provide a security of $1,000 to be of good behaviour for 12 months.

36. The current offences clearly breach that Good Behaviour Order. This has not been challenged and he admits the breach. I find the breach to have been made out. This raises two matters. In the first place, the Good Behaviour Order was a form of conditional liberty to which he was subjected at the time of the current offending. Secondly, he must be sentenced for the breach of it.

37. As to the first matter, it is clear that committing an offence while on conditional liberty is an aggravating feature, and it is relevant to the sentence to be imposed for the offence. It is, however, not a matter that is relevant to the objective seriousness of the offence (see R v Forrest (No 2) [2017] ACTSC 83, Sampson v De Haan [2016] ACTSC 327 and Beniamini v Craig [2017] ACTSC 30). It is important, however, that any part of the sentence that is required because of this aggravating factor does not result in double punishment for the original offence (see Kelly v Ashby [2015] ACTSC 346).

38. Such a breach is in the nature of a betrayal of the privilege granted to an offender to be in the community and not in custody, often for rehabilitation or retaining employment which is relevant also to rehabilitation, for their reintegration into the community, or for other matters (see R v Tran [1999] NSWCCA 109 that has been accepted and applied in this jurisdiction in R v BC [2019] ACTSC 233). I am not aware in this case of any particular matters of this kind that was part of the basis on which the sentence of imprisonment was suspended.

39. The second matter is that I am required to deal with the breach. Despite the fact that the Good Behaviour Order was made by the Magistrates Court, the terms of s 107(1) of the Crimes (Sentence Administration) Act 2005 (ACT) are wide enough to authorise me to deal with a breach of a Good Behaviour Order imposed by the Magistrates Court (see R v Taylor (No 2) [2019] ACTSC 377; R v Kaihea [2020] ACTSC 17). That breach is constituted by an offence of which I find Mr Mathews guilty.

40. I have a range of options set out in s 108 of that Act. They include taking no further action, ordering payment of the security under the Order, or amending the Order. If I order payment of the security, then I can cancel the Order on that payment. I can also cancel the Order and re-sentence Mr Mathews. In order to consider the appropriate option, it is necessary to have information about the offence for which the Good Behaviour Order was imposed. I was provided, without objection or challenge to its contents, a Statement of Facts for the offence.

41. In summary, I find from that Statement that Mr Mathews entered residential premises in Hawker, ACT and approached the front door of the residence. He damaged the door and the adjoining screen door by snapping a connecting rod and tearing the material near the handle lock. He then entered the backyard and used an instrument to damage the back door near the deadlock. He then pulled out and damaged all the fly screens on the rear windows.

42. It appears that he did not manage to get into the premises. Mr Mathews had no permission to enter the premises or damage any of the property on it. Unfortunately, I had no evidence about the value of the damage done, though the fact that he was charged with a particular offence, of which he was found guilty, meant that the value was less than $5,000.

43. In addition, on 27 September 2019, this Court sentenced Mr Mathews to imprisonment to be served by an Intensive Corrections Order for possessing a drug of dependence. These offences also breached that Order which, of course, is also a form of conditional liberty. While this has the same effects as the first issue referred to above at [37], it does not have the second, for Loukas-Karlsson J dealt with that breach on 4 November 2020 and took no further action.

Sentencing Practice

44. When sentencing offenders in the Territory, it is necessary, in accordance with s 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), to take into account current sentencing practice. This provision is relevantly similar to s 5(2)(b) of the Sentencing Act 1991 (VIC), which was the subject of consideration by Gageler and Gordon JJ in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 where, at 453-4: [82]-[83], their Honours said:

Section 5(2)(b) does not in terms provide that current sentencing practices set boundaries on what a court may reasonably impose as a sentence. The court must have regard to current sentencing practices, as well as every other matter listed in s 5(2). Current sentencing practices stand in the same position as every other matter listed in s 5(2). There is nothing to suggest that current sentencing practices should be treated in a conceptually different manner from any of the other listed matters. Of course, an express purpose of the Sentencing Act is to promote consistency of approach in the sentencing of offenders, to which the requirement in s 5(2)(b) may contribute. But that purpose, which reflects the well-recognised importance of consistency in the application of sentencing principles, provides no basis for treating s 5(2)(b) as though it were a statutory command to sentence within a “band” derived from current sentencing practices. Sentences are not binding precedents, but are merely “historical statements of what has happened in the past”. As was said in Hili v The Queen, “that history does not establish that the range is the correct range or that the upper or lower limits to the range are the correct upper or lower limits” (emphasis added). Examination of sentences imposed in comparable cases may inform the task of sentencing but such examination goes beyond its rationale when it is used to fix boundaries that, as a matter of practical reality, bind the court. (Citations omitted).

45. I do not read that as meaning that a sentencing court cannot have regard to the range of sentences that have been imposed before, including by reference to sentencing statistics. Such material, however, neither binds the court nor provides limits either lower or higher, behind which a sentence may not go. Six of the seven Justices of the High Court said of information about prior sentences in Hili v The Queen [2010] HCA 45; 242 CLR 520 at 537: [54]-[55]:

In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have been imposed. That history does not establish that the range is the correct range or that the upper or lower limits to the range are correct upper and lower limits. As her Honour said, “Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.” But the range of sentences that have been imposed in the past does not fix “the boundaries within which future judges must, or even ought, to sentence”. Past sentences “are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence” (emphasis added). When considering past sentences, “it is only by examination of the whole of the circumstances that have given rise to the sentence that ‘unifying principles’ may be discerned”. As the plurality said in Wong: “[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were.” (Citations omitted).

46. In the Crown’s submissions, reference was made to what I had said about the range of sentences for burglary in Fusimalohi v The Queen [2012] ACTCA 49. This has been cited in a number of cases with approval, including by the Court of Appeal in Dawson v The Queen [2019] ACTCA 9. It was, it appears, subsequently criticised by the Court of Appeal in Tracey v The Queen [2020] ACTCA 51. In my view, the Court of Appeal, with respect, misunderstood the purpose of my reference to those sentences, particularly as, at later paragraphs, I conducted exactly the analysis required by a sentencing practice. In R v Horne [2017] ACTSC 36, I explain, at [49]-[53]:

There is no tariff for burglary or aggravated burglary, as explained by Burns and Lander JJ in Fusimalohi v The Queen. Nevertheless, I pointed out in the same decision, without contradiction, that the sentences in this Court for burglary of residential premises generally range from imprisonment for one year to two years and six months. This, of course, is not for the offence of aggravated burglary, which is a more serious offence. Although it is important to bear in mind that sentencing statistics can only give a very general picture of the “collective wisdom of … judges” (R v Ellis), and must be viewed with care, they can, as noted in Ashdown v The Queen “throw some light on sentencing patterns for a particular offence, and thus provide some window on the accumulated experience of sentencing judges”. The ACT Sentencing Database has captured, to date, 93 sentences for the offence of aggravated burglary. Of these, 49.5 per cent were sentences of full-time imprisonment, 29 per cent were sentences of imprisonment that were fully suspended, and 5.4 per cent were simply Good Behaviour Orders. The terms of imprisonment ranged from six months (22 per cent) to four years and six months (6.5 per cent) with most sentences in the range of two years to two years and six months (39.2 per cent). A brief inspection of the sentencing remarks for those offenders receiving a sentence of less than two years show particular circumstances, such as being a young offender or experiencing restrictive conditions while in custody. See, for example, R v Fleet and R v TM. These do not provide the range of sentences that may be appropriate for the offences, but do provide helpful information on sentencing practice to which the Court is required by statute to have regard. (Citations omitted).

47. Thus the principles need to be identified and many of these, as shown by recent decisions, will be set out in the assessment of the seriousness of the offences which are assessed by courts, by noting the maximum penalty and by identifying aggravating and mitigating factors, the factors personal to the offender such as their age, criminal history, drug dependence and childhood deprivation, as well as other matters such as whether the offence was a repetition of the same offence or was committed while the offender was on conditional liberty.

48. These provide many, but not all of the considerations that inform the sentence to be imposed. Nowhere does the High Court, in my view, say that such information, as I set out in Fusimalohi v The Queen [2012] ACTCA 49, or elsewhere, should not be considered. It may be that it is a little misleading to refer to this as sentencing practice, although this is where I usually also consider comparable cases. Of course, all the other matters are relevant to a correct assessment of the principles and the instinctive synthesis which informs the actual sentence.

49. For completeness, I set out the relevant material from the ACT Sentencing Database which, for sentences of burglary in the ACT Supreme Court, shows that approximately 96 per cent of sentences recorded were of imprisonment. Just over 72 per cent were given sentences of full-time custody. Of those, 21 per cent were of between 7 and 12 months and 35 per cent were of 13 to 18 months duration. Two sentences were of 4 years and 6 months and one each of 4 years and 10 months and 5 years and 10 months.

50. A perusal of the sentencing remarks of the sentence for 4 years and 10 months, R v Sila [2015] ACTSC 64, does not make it clear why that particular length of sentence was imposed. The offence for which Mr Sila was sentenced was a trespass on premises to commit violence, which is obviously more serious than to do so for the theft of property, unless it is of very valuable property. He entered an early plea of guilty and had a limited Criminal History. He was diagnosed with schizophrenia. The offence was committed in a context of family violence, which, of course, makes the matter more serious, and he also committed an offence of sexual intercourse without consent. There was a high degree of concurrency between the sentences for this and the other offences.

51. I have no access to the sentencing remarks for the other sentence of 5 years and 10 months.

52. As to the offence of theft, the ACT Sentencing Database shows that, in the ACT Supreme Court, nearly 93 percent of the sentences were to imprisonment. A little over 67 percent were to full-time custody, the vast majority of which were sentenced to between 6 months and 12 months’ imprisonment, though 45 of 287 were of between 13 and 18 months. Two were of periods of more than 4 years and 6 months but the sentencing remarks for those were not available.

53. The Crown referred to decisions of this year that were said to be comparable. R v Horan [2020] ACTSC 189 was the first. Mr Horan forced entry into a residence, stole goods of a “significant monetary value” and also “of considerable sentimental value”. The value of the damage was unspecified, but it involved ransacking the house and the cost of that was also unquantified in the judgment. But the ransacking was “calculated to heighten the sense of violation created by the burglary”, which was referred to in the Victim Impact Statement tendered.

54. Mr Horan was 20 years old with a “not … significant criminal history”. He had a disadvantaged upbringing with some employment. He had used cannabis from age 9 and methamphetamine since age 13. He had some mental health problems. He was sentenced to 18 months' imprisonment for the burglary and 9 months' imprisonment for the theft, with 6 months cumulative. The offences were more serious than those of Mr Mathews’ but perhaps the subjective features were somewhat more significant.

55. In R v Carberry [2020] ACTSC 96, Ms Carberry was sentenced for offences of burglary, possessing a knife and possessing drugs, to which she had pleaded guilty in the Magistrates Court. The burglary was of a residence while the occupants were there. The male occupant saw her, followed her out and confronted her. The victim managed to recover some of the property that was stolen. He questioned her as to why she had been in the house. When police later arrived, she was in possession of a knife and the drugs.

56. Ms Carberry was 41 years old with a disadvantaged childhood, though happy. She completed Year 9 at school but had limited work history. She had a significant history of drug dependency but had undertaken some rehabilitation programs and mental health programs. She had a substantial criminal history. She was on bail for other offences at the time of the offending. She was sentenced for the burglary to 18 months' imprisonment. The offence was objectively more serious than that of Mr Mathews’ and her subjective circumstances gave some claim to leniency.

57. In R v Tracey [2020] ACTSC 28, Mr Tracey pleaded guilty in the Magistrates Court to two counts of burglary, two counts of theft, one count of aggravated burglary and other offences not presently relevant. The first burglary occurred in a residence while the owner was on holiday. Mr Tracey had entered it by prying a door open, splintering it in the process. He took some jewellery and the contents of drawers and cupboards were strewn about. The stolen items were not recovered.

58. The second burglary was of a residence while the residents were out shopping, though they returned home while he was still in the house. One of the residents confronted Mr Tracey, but was threatened by him with a knife, for the possession of which he was separately charged. He had entered the house through the bathroom and also ransacked the house too. He also stole jewellery and a backpack.

59. Mr Tracey was 47 years old with a dysfunctional upbringing and was made a ward of the state and placed in foster care. His criminal activities began when he was young. He left school at Year 9 and had a limited employment history. He was a long-time user of methamphetamine but only began at age 28. He had a mental health condition and had incurred various disciplinary proceedings while in custody, though more recently it had improved. He completed some drug and alcohol programs while in custody. He has a disability from a head injury that resulted from a motor vehicle accident, alcohol abuse and some assaults. He has a substantial criminal history.

60. He was sentenced to 29 months' imprisonment for the first burglary and to 35 months' imprisonment for the second. For the first theft he was sentenced to 10 months' imprisonment with 2 months cumulative, and for the second theft to 10 months' imprisonment with also 2 months cumulative.

61. In my view, the first burglary was more serious because of the damage and the disturbance to property in the house. The second burglary was more serious because of the possession of the knife. The thefts were similar. Mr Tracey's subjective circumstances were more complicated and more significant than those of Mr Mathews’.

Consideration

62. The purposes of sentencing in this Territory are set out in s 7 of the Sentencing Act and every sentencer should have regard to them. In this case, the seriousness of the offences demands that punishment be relevant, as is general deterrence, as the effect such offences have on the community requires some element of deterrence to keep the community safe.

63. The criminal history of Mr Mathews especially requires a level of specific deterrence, though his realisation of the need for reform and his limited steps towards it already shows the relevance of the requirement to give weight to rehabilitation. Though I did not have Victim Impact Statements, these offences do, to the Court's knowledge, impact on the victims and this must be recognised.

64. Mr Mathews entered the pleas of guilty at any early stage, though the Crown case was very strong. Mr Mathews was affected by drugs at the time. He also had a long drug history. This is a difficult matter. I summed up the position in R v Forrest (No 2) [2017] ACTSC 83 at [130]-[133], as follows:

It is a clear sentencing principle that, when drug addiction causes or contributes to offending behaviour, the addiction is generally of itself not a matter of mitigation. This was held by the Full Court of the Federal Court of Australia on appeal from this Court in Talbot v The Queen. That general position, however, masks a degree of complexity about how the sentencing courts treat those with an addiction. For example, addiction may lead to a lesser sentence compared to that imposed for the same offence committed by a person not addicted as in Cicciarello v The Queen. Indeed, in R v Henry, Wood CJ at CL summarised some principles which show a more nuanced and, perhaps, more constructive approach to the issue. In particular, the circumstances under which a person became an addict, such as by initial medical treatment (Talbot v The Queen), or at a very young age before he or she could make an informed choice (Douglas v The Queen), are very relevant and provide mitigation. These are, however, not part of the principles articulated by R v Verdins… (Citations omitted).

65. Mr Mathews has been in custody since his arrest and this must be taken into account. There is no reason why I should not backdate the term of imprisonment in accordance with ss 62 and 63 of the Sentencing Act. The fact that the offence of theft involved some items that would have likely inconvenienced the owner, such as the laptop, card and medications, including the prescription, requires some level of cumulation, the ordinary approach recognising the overlapping element and that the offences are part of a course of conduct justifies substantial concurrence (see R v McMahon [2014] ACTSC 280).

66. In my view, no sentence but a sentence of imprisonment is appropriate for these offences. I note that on 4 December 2020, Loukas-Karlsson J convicted Mr Mathews for the two offences.

His Honour then spoke to the accused:

67. Mr Matthews, please stand.

68. I confirm the conviction for the offence of burglary on 1 June 2020.

69. I sentence you for that burglary to 18 months' imprisonment, to commence on 1 June 2020. Had you not pleaded guilty, I would have sentenced you to 21 months' imprisonment.

70. I confirm the conviction for theft of property on 1 June 2020.

71. I sentence you to 10 months' imprisonment, to commence on 30 November 2021. That is to be cumulative as to two months on the sentence for the burglary. Had you not pleaded guilty, I would have sentenced you to 12 months' imprisonment.

72. I find that you have breached the Good Behaviour Order made on 23 January 2020.

73. I cancel the Good Behaviour Order and confirm the conviction for damaging property.

74. I sentence you to 3 months' imprisonment, to commence on 31 January 2022, having regard to the period of 2 months and 28 days already spent in custody.

75. The total sentence is 22 months' imprisonment.

76. Mr Mathews you may be seated.

77. I note that Mr Mathews is not subject to any other sentencing order within the meaning of s 12A of the Sentencing Act. I am satisfied that he will live in the ACT for the period of 22 months. Accordingly, he is eligible for a Drug and Alcohol Treatment Order (a Treatment Order). I have carefully read the Pre-Sentence Report, the Drug and Alcohol Treatment Assessment and the Drug and Alcohol Sentencing List Suitability Assessment referred to above in [18]. I have carefully considered the recommendations in them, especially that Mr Mathews is suitable for a Treatment Order.

78. I am satisfied that Mr Mathews is dependent on illicit drugs and that the dependency substantially contributed to the commission of the offence of burglary. I have not identified any indicator as to unsuitability for a Treatment Order listed in Table 46K of the Sentencing Act. The Crown raised the question of whether Mr Mathews is sufficiently committed to his reform to justify making a Treatment Order. This, it would appear, refers to the indication of unsuitability in item 1 of Table 46K, namely “major problem with alcohol or a controlled drug unlikely to change under drug and alcohol treatment order”.

79. The Crown pointed to the assessment by Loukas-Karlsson J of his prospects of rehabilitation which, when imposing the Intensive Corrections Order, her Honour described as “guarded” (see R v Mathews [2019] ACTSC 262 at [26]). Her Honour made the Order over the objection of the Crown and, indeed, the recommendation of the assessment that he was not suitable. This recommendation was made in the light of his prior non-compliance with community-based orders, including breaches (see R v Mathews [2019] ACTSC 262). The Crown also pointed out that Mr Mathews has not really engaged in any drug related counselling whilst under the Intensive Corrections Order.

80. Ms Campbell, who appeared for Mr Mathews, pointed out that he had, in fact, not been released from custody until 16 December 2019. The evidence was that he had made contact with the designated counselling provider and that he had attended as required, but the government restrictions in response to the COVID-19 pandemic had meant that continuing counselling was problematic from March 2020. He had, as noted above, undertaken courses including drug and alcohol related courses whilst in custody.

81. His mother, in the latest reference, had noted that he was now different in his attitude. He acknowledged that he could not address his drug dependency on his own. He has changed and matured also in that he has taken responsibility for his poor decision-making instead of making excuses. He has spoken of this fear that unless he addresses his drug dependency, he will be stuck in the cycle of being in and out of prison. A significant motivation is the need for contact with his son and his son's mother is prepared to facilitate that if he addresses his dependency on drugs.

82. He is exercising regularly, has kept himself motivated and had helped others while he was in custody. His friend also confirmed that he appears to be ready for a change so long as he gets help. He did arrange before to become abstinent, though he did relapse. She said that she “truly believe[s] [Mr Mathews] is ready to make the change and stick with it this time”.

83. Accordingly, I am, not without some hesitation, satisfied that Mr Mathews is suitable for a Treatment Order. I accept the recommendation that the Treatment Order should be extended for the balance of the sentence.

84. Finally, I note that although I have commenced the sentence of imprisonment from 1 June 2020, the period from that date until today has been served and the sentence must now be suspended. This does not prevent Mr Mathews from being subject to a Treatment Order for the reasons set out in R v Crawford (No 1) [2020] ACTSC 245.

His Honour spoke to the accused:

85. Mr Mathews, please stand.

86. I make a Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT). for 1 year 3 months and 18 days, from today, 14 December 2020, until 31 March 2022, for the offence of burglary, the primary offence.

87. I extend the Drug and Alcohol Treatment Order to the offences of theft on 1 June 2020 and damaging property on 4 April 2019, both of which are associated offences of the primary offence.

88. I note that I have confirmed convictions for the primary offence and the associated offences and have imposed sentences for them. Those convictions and sentences are hereby incorporated into the Drug and Alcohol Treatment Order, for the custodial part of the Drug and Alcohol Treatment Order.

89. I suspend the total sentence of 22 months, being the sentence for the primary offence and associated offences, from today, 14 December 2020, until 31 March 2022, under s 80W of the Crimes (Sentencing) Act 2005 (ACT).

90. For the treatment and supervision part of the Drug and Alcohol Treatment Order, I require you to comply with the core conditions set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) for the term of the Order, including such case management and programs as may be required by the Treatment Order Team from time to time, or by order of the Court, including as to counselling, medical treatment, urinalysis or such other treatment or programs as may be required from time to time.

91. I direct that you comply with any directions that the Court may make from time to time about attendance at Court in person or by electronic means.

92. I direct that you attend Court on 18 December 2020 at 11:30 am.

93. Mr Mathews, that is the formal matters that I need to set out and the Orders that I have made and the sentence that has been imposed. I now am required to explain those to you, and I will try to do that simply, but your counsel, no doubt, will explain them in more detail.

94. I have said that this criminality, which is completely unacceptable and a continuation of bad behaviour that you have committed for some time, justifies 22 months' imprisonment. You have, however, already served now a period since 1 June 2020, and I do not require you to serve any further imprisonment unless you misbehave further by committing further offences or by not complying with any Orders of the Court.

95. I have made a Drug and Alcohol Treatment Order, sometimes called a “DATO”. That Order requires you to be under the supervision of a range of people, of not only Corrective Services, which you have probably been under the supervision of in the past, but also by people from Canberra Health Services. The Treatment Order will require you to undergo programs, attend counselling, attend case management, provide urine for analysis to determine whether you are using drugs or not, and will also require you to come back to Court from time to time.

96. This is intended to do what you say you are motivated to do, and that is to get your life back in order so that you can be a father to your son, so that you can participate as a sensible human being in our community and enjoy your life by not being in and out of prison and in and out of drug using, which, I hope you are realising now, is a road to nowhere. You will have to attend Court in the first instance, almost monthly. In the holiday period it will not be quite that often, but you are to attend Court on Friday.

97. You will see quite a lot of me in the future. I will have reports of what you have done in the meantime and if it is going well, we will have a good chat and I will congratulate you and formally give you encouragement. If things are not going well, then I will sanction you and that can be the imposition of some penalty points and, if they accumulate, then you can spend some time in custody again. That is the stick, but hopefully you will not need that.

98. You need to understand that the rehabilitation from drug dependency is a tough matter. It is not easy. You are under this Order until 30 April 2022, so there is still some time to go, more than just 12 months, nearly two years. You are required to participate in those reform and rehabilitation arrangements for that period. If you relapse, then obviously things need to be done. If it is very serious, the Treatment Order can be cancelled and then you will have to spend the rest of that time in custody in the ordinary way. If it is not so serious, we may be able to fix it.

99. The most important thing is to be honest. It is also really important to be motivated and to be conscientious about addressing issues, which also means coming and telling me if there are troubles. I can try and fix them. Sometimes I can, sometimes I cannot. Sometimes they are so bad that you need to spend some time in custody, sometimes they are really bad and you will need to have your Treatment Order cancelled and be re-sentenced.

100. But if you are honest, if you come and ask for help, then there is a real chance that that will be helpful. People who just get into trouble and then run away and try and put their head in the sand do not succeed and they then are treated more harshly, and then there is no alternative option than to arrest you, and I can assure you, you will be found. Ten years later, we will find you, and by that time, the last thing you want is to go back into custody, so just take this seriously. This is a privileged opportunity for you. You are now released from custody.

101. You will need to attend to counselling and so on in this week and I will get a report on Friday. Come back here on Friday and we will see how it is going. I hope in the first week it is going to go very well, but we can only do our best. I wish you well and will see you on Friday. Good luck.

I certify that the preceding one hundred and one [101] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge.

Associate: Samuel Xiang

Date: Tuesday 9 February 2021