R v McCarthy [2016] ACTSC 12

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - sentence - theft of Commonwealth property - guilty plea - bailed to attend drug rehabilitation program

Crimes Act 1914 _(_Cth) ss 16A, 17A(1), 19AC(3)

Cameron v The Queen (2002) 209 CLR 339

1. On 29 September 2015, the offender pleaded guilty to the offence that, on 1 November 2014, he dishonestly appropriated 64 brass drain covers belonging to the National Library of Australia with the intention of permanently depriving the Commonwealth of that property, contrary to s 131.11 of the Criminal Code 1995 (Cth).

2. This offence carries a maximum available penalty of 10 years' imprisonment. A plea of guilty was entered on the third appearance in the Magistrates Court, in the face of a very strong Crown case.

3. The offender has spent no time in custody in relation to this matter.

4. Prior to 5.40 am on Saturday, 1 November 2014, the offender and his then partner, Ms Allard, were detected by a CCTV camera removing heritage brass drain grating from the front of the National Library and stacking the grating near the Library car park. A car registered to the offender's partner was driven to the scene and the offender and his partner loaded the grating into the car. They walked away. Police were called and they intercepted the offender and his partner near the Library car park. Later, the offender's wallet, containing numerous forms of identification, was located in the car. Police seized the car. The property was recovered. The Library valued the grating at $22,400. The replacement cost would have been $57,220.

5. The alleged co-offender, Ms Allard, has entered a plea of not guilty in the Magistrates Court and is yet to be committed for trial to the Supreme Court.

6. The offence was planned, although the planning may have occurred shortly before the commission of the offence and the plan was unsophisticated. The brass drain grating was of moderate value. Had replacement been necessary, it would have been expensive to purchase the heritage grating and installation would have required specialist tradespersons. On the other hand, the offence did not occur on private property, did not involve items that were unique, or of sentimental value and did not occur in the presence of any person, or in circumstances where any person was likely to be present. The property was recovered.

7. The offender is 44 years old; he was 43 years old at the date of the offence. He had a stable childhood, although his parents separated when he was five years old. The offender completed Year 9 at school. He completed an apprenticeship as a stonemason and has worked in the retail waste management and construction industries. Since 2013, he has been in receipt of Centrelink benefits.

8. The offender had a 15-year relationship, which ended in 2007. The offender has shared custody of the two children of that relationship.

9. The offender commenced cannabis use at 14 years of age and was a heavy user for a significant period prior to October 2015. Between 24 and 36 years of age he was a daily heroin user. However, in 2007-2008, he successfully completed the Karralika residential rehabilitation program. Thereafter, he was abstinent from heroin for six or seven years.

10. The offender has a lengthy criminal history, including numerous driving and dishonesty offences. Currently, he is before the Magistrates Court for sentence in relation to a minor theft and driving matters. The most recent conviction for an offence of dishonesty occurred in 2008 when the offender received a 12-month suspended sentence for a burglary offence committed in 2007.

11. The offender has never served a sentence of full-time imprisonment, but he has received a number of suspended sentences.

12. Although his criminal history extends over several decades, it discloses no offences between 2007 and 2013. This period of good behaviour coincides with a period when the offender was also abstinent from illicit substances. However, the author of the Karralika report states that, in 2013, the offender "became involved in a destructive relationship and started to associate with old acquaintances" and then relapsed into drug abuse. I infer that this is a reference to the commencement of his relationship with Ms Allard.

13. At the time of the offence, the offender was subject to good behaviour orders for property damage offences and an offence of driving with a prescribed drug, methylamphetamine, in his oral fluid or blood. The good behaviour orders were made in July and August 2014. Between September 2014 and October 2015, the offender's response to Corrective Services supervision was poor. Since October 2015, it has been satisfactory.

14. In late 2015, the offender completed a six-day detoxification program at the Canberra Hospital. On 14 December 2015, he entered the Karralika Program and he has almost completed the first eight weeks of the first part of that Program, which is known as the Karuna Program.

15. Mr Johnson, from Karralika, gave evidence about the further stages of treatment which the offender will undertake if he continues with the Karralika Program. Treatment phases one and two are likely to take 12 months and involve full-time residence at Karralika. The offender would then move to the commitment and re-entry stages, which would, at some point, involve the offender moving into community housing controlled by Karralika.

16. Mr Johnson explained the strict conditions with which Karralika residents must comply, including, in effect, undertaking treatment seven days a week. In the treatment phases they are allowed visits only once a month and can make personal calls only once a week. The calls are listed and monitored in a manner similar to that which applies in a prison environment.

17. If the offender continues on the Karralika Program he will be subject to strict requirements and his personal liberty will be severely curtailed for more than 12 months. At the end of the Program, he will gradually re-enter the community in a manner designed to ensure he is able to remain drug free in the long term. In 2007-2008, the Program was successful for the offender; having completed the Program, he re-entered the community and remained drug and crime free for six to seven years.

18. The offender is currently being treated with methadone and it is proposed that this treatment will continue. This is a good thing because it will stabilise the offender during his treatment at Karralika and thereafter upon his re-entry into the community. Of course I defer to medical opinion about what is best for the offender.

19. As at October 2015, the offender remained in a relationship with Ms Allard, who was said to be a trigger for him using drugs and who had allegedly been instrumental in the offender relapsing into drug abuse in 2013, after six years of abstinence. The offender asserts that he has terminated his relationship with Ms Allard and has no intention of recommencing it.

20. The Court is required to impose a sentence that is of a severity appropriate in all the circumstances of the offence, considering the relevant matters set out in s 16A(2) of the Crimes Act 1914 (Cth) (Crimes Act). I accept the Crown's submission that relevant matters are set out in s 16A(2): (a) the nature and circumstances of the offending; (e) loss or damage; (g) a plea of guilty; (j) specific deterrence; (ja) general deterrence; (m) character, antecedents, age, means and physical or mental condition of the person; and (n) rehabilitation. I have referred to these matters above or will refer to below.

21. Contrary to the Crown's written submissions, I find that the offender has reasonable, perhaps good, prospects of rehabilitation. His criminality is clearly linked to drug abuse. The fact that he is currently engaged with an intensive drug treatment program that has been successful for the offender in the past strongly indicates a capacity to rehabilitate. The keys to rehabilitation are the offender's attitude and engagement with drug treatment and willingness to abandon damaging relationships.

22. The offender has been assessed as at medium to high level risk of re-offending and suitable for medium to high level of intervention by ACT Corrective Services.

23. A court may only pass a sentence of imprisonment for a federal offence if, having considered all other available sentences, it is satisfied that no other sentence is appropriate in all the circumstances: s 17A(1) of the Crimes Act.

24. Where a court imposes a federal sentence that does not exceed three years, but is more than six months it must make a recognizance release order rather than fix a non-parole period: s 19AC(3) of the Crimes Act.

25. The Crown provided a useful table of comparable cases showing a number of sentences for theft in the range of one to four years' imprisonment. The Commonwealth Sentencing Database shows that, of 19 offenders, 53% received a fully suspended recognizance release order and 37% were sentenced to full-time imprisonment. Of the seven offenders sentenced to full time imprisonment, five received a sentence in the range of 18 months to three years. Most of those who received a sentence of imprisonment had no prior criminal history, but the value of the property taken, where known, was generally significantly greater than the value of the property in the present case.

26. The above considerations, particularly the objective seriousness of the offence, the offender's criminal history and its relationship to drug abuse, and the fact that the offender was on conditional liberty at the time that the offence was committed, point to a sentence of imprisonment. But for the offender's recent commitment to intensive drug treatment, I would impose a sentence of about 18 months' imprisonment; 21 months less a discount of three months for the plea of guilty, having regard to the factors set out in Cameron v The Queen (2002) 209 CLR 339 at [11]. I would order the offender's release after about nine months. The offender's criminal history, in the context of the need for specific deterrence and general deterrence, would dictate a sentence of that sort.

27. However, given his prospects for rehabilitation, I am prepared to afford him the opportunity of continuing the Karralika Program, and to discount the sentence by reference to the time spent undertaking detoxification at Canberra Hospital and treatment at Karralika.

28. The period spent at Karralika contains within it a significant component of punishment which should serve to specifically deter the offender. I say that because of the very strict conditions imposed upon participants in the program which, in some regards, could be likened to the loss of liberty which is the critical aspect of a sentence of full-time imprisonment.

29. If the offender successfully completes the Karralika Program it is my intention that he be released into the community without the need to serve any period of full-time imprisonment, but subject to a period of imprisonment that is suspended.

30. I have advised the parties that my usual practice is to discount from a sentence of full time imprisonment to allow for a period spent in residential rehabilitation by a factor of 50%. For these reasons I propose to adjourn the proceedings initially for mention. In the intervening period, I will grant the offender bail.

31. The proceedings are adjourned for mention to a date to be fixed in three or four months' time. If the offender remains compliant with the Karralika Program, his attendance is not required. There is no need for the legal representatives to attend if the parties agree that bail should be continued.

32. The matter is fixed for mention on 3 June 2016.

(a) The offender is to continue undertaking the drug treatment program at Karralika and he is to comply with all aspects of the Program.

(b) The offender is to submit to the supervision of ACT Corrective Services and report to ACT Corrective Services (in person or by telephone) no later than 4 pm tomorrow.

I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell