R v McCurley [2016] ACTSC 219

Legal Aid ACT (Offender)

1. Matthew James McCurley, you have pleaded guilty to one count of aggravated burglary, one count of burglary and two counts of theft.

2. An Agreed Statement of Facts has been filed and it is not necessary for me to recite the facts in any detail. It is sufficient to say that the offence of aggravated burglary and the associated offence of theft occurred in the early hours of 16 August 2015 when you and two other unidentified males entered a commercial auction room in Mitchell as trespassers. Whilst inside the premises you and your associates stole property to the value of approximately $2,640.00.

3. The offence of burglary and associated offence of theft occurred on 10 May 2016, again in the early hours of the morning. At that time you entered the Phillip Swimming and Ice Skating Centre as a trespasser. While inside the premises, you stole $1,380.00 in cash, together with business receipts and cash bags.

4. The maximum penalty for the offence of aggravated burglary is 20 years imprisonment, a fine of $300,000 or both. The maximum penalty for the offence of burglary is 14 years imprisonment, a fine of $210,000 or both. The maximum penalty for each of the offences of theft is 10 years imprisonment, a fine of $150,000 or both.

5. You were charged with the offences of aggravated burglary and theft which you committed on 16 August 2015 on 13 April this year. You were charged with the offences of burglary and theft which you committed on 10 May 2016 on 20 May 2016. You entered pleas of guilty to all charges in the Magistrates Court on 25 May 2016 and I accept that they were early pleas.

6. With respect to the objective seriousness of each of the offences, I turn firstly to the offence of aggravated burglary on 16 August 2015. I note that the circumstance of aggravation with respect to that offence was that you were in company. That offence occurred in the early hours of the morning and in commercial premises, such that those premises were vulnerable to that type of offence. The offence of theft, which occurred on the same day, involved goods which were not of a particularly high value.

7. With respect to the offence of burglary on 10 May 2016, again that offence occurred at commercial premises in the early hours of the morning. At that time you used a screwdriver to force entry into the premises. You were at that time on bail for the offences which you had committed on 16 August 2015. The theft on 10 May 2016, of course, also occurred whilst you were on bail and also did not involve a significant quantity of money.

8. It has been accepted by the Crown, and I think rightly so, that these offences are towards the lower end of the range of such offences. That is not to say that offences of this nature are not serious. One only needs to look at the maximum penalties that have been provided by the legislature to see that offences of aggravated burglary, burglary and theft are considered particularly serious offences by the legislature.

9. I note that you are 43 years old and you have a criminal history, but nothing of a similar nature for many years. You had a difficult childhood, although you still maintain contact with your mother. You have not had contact with your father for many years. You have a 10 year old son with a former partner. You had regular contact with your son prior to being remanded in custody and you still maintain regular telephone contact with him. You entered into a new relationship shortly before you were remanded in custody, but I have no further details relating to that matter.

10. It is clear from both the PreSentence Report and the CADAS Report, which have been placed before me, that you have longstanding drug dependency issues, commencing with the abuse of cannabis and methamphetamines when you were aged approximately 13. By age 15, you were said to have been using amphetamines and heroin on a regular basis.

11. In the past you have completed drug rehabilitation courses in custody and also attended some Alcoholics Anonymous meetings. You undertook methadone treatment from 2012 until 2014, however, it appears that on each occasion you have slipped back into illicit drug use. It appears that one of the triggers for relapse into drug use is contact with people that you have known in the context of drug use over a period of time. So it is contact with former associates that you have known through the use of drugs that is likely to lead you into further drug use.

12. You expressed to the author of the PreSentence Report a willingness to engage in drug rehabilitation. You also told the author of that Report that you accepted responsibility for these offences, which were committed in order to obtain money to feed your drug addiction. I note that you are currently undertaking an anger management program in the Alexander Maconochie Centre and you are also awaiting entry to the Solaris Program.

13. I accept that you have demonstrated a degree of remorse with respect to these offences. Your participation in restorative justice and also your willingness to participate in restorative justice with respect to other offences is indicative of remorse. I also note that you expressed remorse for these offences in your letter to the Court and you also expressed remorse in your discussion with the author of the PreSentence Report.

14. I also accept that your pleas of guilty demonstrate remorse. The pleas of guilty with respect to these matters, as I have said, were early pleas. You have reasonable prospects for rehabilitation, especially if you address the question of your drug addiction. Your willingness to undertake appropriate interventions to deal with your drug addiction is still an open question. It is clear that you have had opportunities in the past to address drug addiction, but you have not made the most of the opportunities that were available to you.

15. You are perhaps approaching an age when you may be able to take a more mature assessment of your life and appreciate the fact that if you continue along the way in which you are at the present time, and have been for many years, it is unlikely that you will see many of the years of your son growing up, which will be some of the best years of his life and could possibly be some of the best years of yours.

16. Whilst you have reasonable prospects for rehabilitation, both general and specific deterrence are relevant to sentencing in the present circumstances. It was submitted to me that I should contemplate allowing for a relatively early release on parole on the basis that I recommend to the Sentence Administration Board that you participate in drug rehabilitation programs. However, I note that such programs are available within the Alexander Maconochie Centre and it appears to me that there is no reason why I should recommend anything other than the minimum period which justice requires with respect to a non-parole period in the present matter.

17. With respect to the offence of aggravated burglary which occurred on 16 August 2015, you are convicted and sentenced to 22 months imprisonment which I have reduced from 30 months in order to reflect your plea of guilty. That sentence will commence on 19 May 2016 and expire on 18 March 2018.

18. With respect to the associated offence of theft, I record a conviction and you are sentenced to 8 months imprisonment, which I have reduced from 12 months in order to reflect your plea of guilty. That sentence will be served concurrently with the sentence imposed for the aggravated burglary.

19. With respect to the offence of burglary which you committed on 10 May 2016, you are convicted and sentenced to 18 months imprisonment, which I have reduced from 2 years in order to reflect your plea of guilty. That sentence will commence on 19 June 2017 and expire on 18 December 2018.

20. With respect to the associated offence of theft on the same day, you are convicted and sentenced to 8 months imprisonment, which I have reduced from 12 months for your plea of guilty, which will be concurrent with the sentence that I have just imposed for the offence of burglary.

21. I have therefore imposed an aggregate sentence of two years and seven months imprisonment commencing on 19 May 2016 and expiring on 18 December 2018. I set a non-parole period of 19 months, commencing on 19 May 2016 and expiring on 18 December 2017.

I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns