R v McMahon [2014] ACTSC 280

Supreme Court of the ACT|2014-07-24|Before: Refshauge J

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

CRIMINAL LAW - Judgment and Punishment - Sentencing - Sentencing for stale offences - Deferred sentence order - Burglary - Theft - Damage property - Assault

Crimes Act 1900 (ACT), ss 26, 99, 102, 113, 128

Attorney-General v Tiohy (1982) 30 SASR 84

Barker v The Queen [1983] HCA 18; (1983) 153 CLR 338

Love v The Queen [2012] ACTCA 8

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316

Regina v The Queen [2004] NTCCA 9; (2004) 149 A Crim R 583

Richards v The Queen [2012] ACTCA 10

R v Harrison (1990) 48 A Crim R 197

R v Hayes [1984] 1 NSWLR 740

R v Sparks [2010] NSWSC 1512

R v Whyte (2004) VR 3397

Ursino v Read [2005] ACTSC 106

Wickey v McVicar [2012] ACTCA 38

1. There are difficulties in sentencing offenders for stale offences, that is offences that have been committed many years before an offender is sentenced. While the community must be protected from criminal behaviour and the purposes of sentencing, as set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT), met in imposing sentence, that can be a challenge when, at the same time the court is required to ensure, as Street CJ, with whom Moffitt P and Nagle CJ at CL agreed, said in R v Todd [1982] 2 NSWLR 517 at 519-20, namely

passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the person in his present situation playing a dominant role in the determination of what should be done in the matter of sentence ...

2. In this context, I am required to sentence Jason McMahon for a large number of offences committed many years ago and two offences committed more recently but still some years ago. Mr McMahon has pleaded guilty to an offence of common assault and of damaging property on 1 January 2008 as well as four offences of burglary, two offences of damaging property, two offences of theft and one offence of possessing stolen property, all committed in May 1997, together with one offence of failing to appear in accordance with a bail undertaking committed in June 1997.

3. The offence of common assault is contrary to s 26 of the Crimes Act 1900 (ACT) and makes Mr McMahon liable to a maximum penalty of two years' imprisonment.

4. The offence of damaging property, in 2008, was prohibited by s 403(1) of the Criminal Code Act 2002 (ACT), providing for a maximum penalty of 1,000 penalty units (that is, a fine at the time of $100,000, or ten years' imprisonment, or both).

5. The offence of damaging property was, in 1997, an offence against s 128 of the Crimes Act, which provided for a maximum penalty of ten years' imprisonment.

6. The offence of burglary was, in 1997, an offence under s 102 of the Crimes Act with a maximum penalty of fourteen years' imprisonment.

7. The offence of theft was, in 1997, an offence prohibited by s 99 of the Crimes Act, rendering Mr McMahon liable to a maximum penalty of ten years' imprisonment.

8. The offence of possessing stolen property was, in 1997, an offence contrary to s 113 of the Crimes Act which attracts a maximum penalty of fourteen years' imprisonment.

9. Finally the offence of failing to appear in accordance with a bail undertaking is an offence against s 49 of the Bail Act 1992 (ACT), for which the maximum penalty was 200 penalty units (that is, at the time, a fine of $20,000, or two years' imprisonment, or both).

10. On 14 May 1997, Mr McMahon and a co-accused went to a home in Narrabundah, threw a rock through a rear window and entered the premises. This is one of the four offences of burglary.

11. While in the premises they took a computer and other items which they carried from the premises. I was not told the value of the property but it appears to be worth some hundreds of dollars. This was the first of the offences of theft.

12. On 21 May 1997, Mr McMahon went to the rear of a house in Narrabundah, smashed a number of windows and entered the premises. That was the second offence of burglary.

13. While in the premises, he smashed a glass viewing panel above the stove causing $500 worth of damage. This is one of the two offences of damaging property committed in 1997.

14. On 23 May 1997, Mr McMahon and two other co-offenders went to a home in Griffith and threw a rock at a rear window, smashing it. This was the second of the offences of damaging property committed in 1997. Mr McMahon and one of the co-offenders went and knocked on the front door which was answered by the occupant, a ninety-two year old woman. The co-offender spoke to the occupant about the smashed rear window, suggesting she could ring the police. The co-offender then went into the premises and took the occupant's handbag, containing money and other items. She then left with the handbag and its contents. This was the third of the offences of burglary.

15. Although Mr McMahon did not enter the premises, he clearly participated in the joint criminal enterprises which included the entering of the premises by his co-offender, not for the consented purpose of telephoning the police, but to steal property of the occupant. That amounts in law to the trespass which is a necessary element of the offence of burglary as confirmed by the High Court in Barker v The Queen [1983] HCA 18; (1983) 153 CLR 338. Clearly, Mr McMahon agreed with the others to the commission of the offence of burglary and, being present at its commission, is liable as a principal. See Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 at 342.

16. Later on the same day, Mr McMahon and one of the same co-offenders went to a residential property at Kingston and again threw a rock through a window which broke and by which they entered the premises. This was the fourth of the offences of burglary.

17. While in the premises, they stole some jewellery, food, clothes, ninety-nine compact discs, a television, a video-recorder, a computer and computer accessories. The stolen goods were valued at $7,383.94. This was the second of the theft offences.

18. On 28 May 1997, police spoke to Mr McMahon and found him in possession of a videocassette titled "Top 100 Plays of the Year". He said that it had been stolen in a burglary but he could not remember the details. These facts constitute the offence of being in possession of stolen property.

19. He was arrested by police and participated in an interview with police in which he made full admissions to his involvement in all the offences. He was described as polite and co-operative with police to whom he appeared remorseful for his actions.

20. Mr McMahon appeared in the Magistrates Court on 29 May 1997 charged with the offences committed (as he acknowledged by his plea of guilty) in 1997. After a number of adjournments, he appeared on 26 March 1998 when he was required to attend at a drug rehabilitation agency, Kadesh House, for assessment and return to court on 10 June 1998. He signed a bail undertaking to that effect. He did not appear in court on 10 June 1998. This is the charge of failing to appear in accordance with his bail undertaking.

21. The next set of offences with which I am concerned were committed in 2008. Mr McMahon and his then partner were at his partner's home on 31 December 2007. They had, at that stage been in a de facto relationship for three years and had a daughter together.

22. They left to go into Civic and began to argue, continuing to do so while in Civic. The argument escalated to where Mr McMahon poured a bottle of beer over his partner and was removed from the night club where they were at the time.

23. When Mr McMahon's partner arrived home early on 1 January 2008, her front door was open and she could hear a loud noise coming from inside her home. She found Mr McMahon asleep. As she went to pick up a beer bottle next to him, Mr McMahon woke up and hit her on her hand. This was the offence of common assault.

24. They exchanged words and continued to argue until his partner, fearing for her safety, ran and locked herself in the bathroom. Mr McMahon tried to get into the bathroom and his partner rang the police. Mr McMahon became abusive and started hitting the door with a knife, eventually making a hole in the door. This was the offence of damaging property in 2008.

25. As noted above (at [20]), Mr McMahon appeared in court on 29 May 1997. The proceedings were adjourned and he was required to attend and remain at the rehabilitation facility. The proceedings were later further adjourned on a number of occasions. The records are not actually clear, but it appears that he was arrested in New South Wales on 19 June 1997 for two offences of breaking and entering. He was sentenced for those offences in the Wollongong District Court to a term of imprisonment of nine months from 19 June 1997 to 18 March 1998 with an additional term of one year and nine months from 18 March 1998 to 18 December 1999. This delayed the progress of the matters before the Magistrates Court in Canberra.

26. After his release from custody in New South Wales, he appeared again in the Magistrates Court in Canberra and as I have also noted above (at [20]) the proceedings were further adjourned on 26 March 1998 so that he could attend Kadesh House. From the material I had, I could not ascertain whether he actually attended Kadesh House or not. I do not know whether this is encompassed in the comment in a Pre-Sentence Report dated 17 April 2014 as follows:

It is noted Mr McMahon has variously attended detoxification residences and at least two residential rehabilitation services in NSW but had failed to sustain his attendances at those places.

27. In any event, Mr McMahon did not appear in Court on 10 June 1998 and a warrant for his arrest was issued.

28. He was arrested in May 2007 and appeared again in Court on 29 May 2007, however, and was remanded in custody.

29. After a number of adjournments, he was released on bail on 18 December 2007 to admit himself to the program at the Lyndon Community on 7 January 2008. This appears not to have eventuated because of the further offences committed on 1 January 2008, for which he appeared in court on 2 January 2008, when he was again granted bail, but not with a condition to attend the Lyndon Community.

30. On 23 January 2008, however, he did not appear in Court and his bail was forfeited and a warrant was issued for his arrest. He appears to have been arrested in mid-February and remanded in custody. On 27 February 2008, he was committed to this Court for sentence on the various matters for which I must now sentence him.

31. He appeared in this Court first on 29 February 2008 when he applied for bail. The application was adjourned to 7 March 2008, when it was withdrawn.

32. He appeared for sentence on 9 May 2008 and did not adhere to his plea in respect of two matters, namely, two charges of failing to appear in accordance with a bail undertaking. The record is not clear as to what happened to those matters.

33. He was released on bail to attend Odyssey House, a drug rehabilitation agency in Sydney. He did attend and admit himself to the program there but left nearly four weeks later. It appears that, on 3 June 2008, he was remanded in custody by the Magistrates Court.

34. On 13 June 2008, he applied to this Court for bail, but the application was adjourned on a number of occasions and, on 5 August 2008, bail was granted with a condition that he obey reasonable directions for drug and alcohol counselling by Directions ACT.

35. He was, however, remanded in custody by the Magistrates Court on 18 August 2008. He was released again on bail on 23 January 2009 with a similar condition but to attend Wayback Ltd, a counselling and accommodation facility in Sydney on 28 January 2009, and remain there until he completed its program.

36. He only stayed there for two weeks. His criminal record shows that he was in New South Wales in March-April 2009 and in Victoria in May-June 2009. He was back in New South Wales in 2010 until 2013.

37. He was arrested on 1 December 2013 and remanded in custody, where he has remained ever since. After a number of further appearances in this Court, he appeared before me for sentence on 14 May 2014. I adjourned the hearing to obtain further information. When the matter was next heard, on 23 May 2014, Mr McMahon informed me he had made application for admission to the drug rehabilitation agency Bennelong's Haven. I adjourned to today to give time for the application to be processed.

38. Mr McMahon was born thirty-seven years ago in Queanbeyan, New South Wales, one of two boys. His parents separated when he was two years old and he remained with his mother. His parents later divorced and his mother entered into a new relationship with a man who gave his mother an ultimatum that he and his brother could not stay with her. He went to live with his father and his brother was taken into foster care, though later brought up by his grandparents.

39. As his father worked, Mr McMahon was cared for during the week by his grandparents. When he was four, he was taken to his grandparent's house only to find that his grandfather had shot himself. It troubled his father particularly, and, having only been a social drinker until that time, he turned heavily to alcohol.

40. Mr McMahon's mother moved to Western Australia, but returned from time to time to Queanbeyan, when Mr McMahon would move back to live with her for a month or two. Then she would leave and he would return to live with his father.

41. His father married again when he was about eight but he did not have a good relationship with this woman and his father stopped taking him on camping and fishing trips, at which he rebelled.

42. Although he said that his father was generally good to him, he was subject to physical violence from him at about age thirteen. He believed that his father was taking out on him the disrupted time he was having in his marriage. He also saw his father at one stage with a gun in his mouth, but he did not discharge it.

43. He then went to live with his grandmother who, although she drank heavily, was good to him. He commenced his first relationship with a woman when he was fifteen and sometimes lived with her and her mother.

44. When he was nineteen, he retaliated to his father's violence and hit him, since when his relationship with him has not developed, though they continued working together for some time. He has, however, more recently, received support from him.

45. Mr McMahon's grandmother died when he was twenty-one.

46. As the author of one of the Pre-Sentence Reports put it, Mr McMahon has struggled to overcome the disadvantages of his childhood which have included rejection, instability, violence, traumatic events and drug and alcohol abuse role models.

47. Mr McMahon was expelled from school half-way through Year 10 for truancy. He has, however, completed Years 11 and 12 through the New South Wales TAFE system in 2000. He has also completed Certificates II, III and IV in Internet Technology and three years of a spray-painting apprenticeship.

48. Since leaving school, he has had some employment. He worked with his father in a spray painting business and also worked at weekends laying concrete garden edges. He has had employment in landscaping, construction of limestone retaining walls, manufacture of roof trusses, and window manufacture. His drug issues have impacted on his employment. He has not been employed for some time.

49. Mr McMahon was, before his incarceration, in receipt of Centrelink benefits. He has no outstanding debts and no assets of significance.

50. His companions, apart from his partner, father and brother, tend to be people engaged in criminal activity, although he does not socialise much.

51. The relationship with his then partner, the victim of the 2008 offences and the mother of his daughter, has ended. He has now a new partner who has some drug issues as well, leading to some problems with the criminal law. They have been in a relationship for about eighteen months, though he did know her about twenty years ago.

52. While the fact that she has drug challenges poses a risk for Mr McMahon, it is also an opportunity for they may be able to access rehabilitation jointly, which will relieve some of the pressures of the absence of his family, which proved insurmountable when he attended some other rehabilitation facilities.

53. His partner has a son whom she is endeavouring to access, which will also provide a motivation for her to achieve some successful rehabilitation.

54. Mr McMahon has a long and entrenched drug and alcohol history.

55. He started drinking alcohol when he was thirteen and it became a problem for him by the time he was sixteen. It is, he says, the most problematic drug use for him, but his criminal history suggests that illicit drugs have also caused him difficulties. Nevertheless, his most recent offences were committed while he was drinking alcohol to excess.

56. He started drinking again when he was released from custody in February 2013 and this escalated into him drinking up to two litres of port a day until he was remanded in custody again on 1 December 2013. Indeed, he required a medicated alcohol withdrawal regime when he was remanded in custody.

57. The longest period he has abstained from drinking alcohol, except when in custody, is four or five months.

58. He has used cannabis, starting from age fourteen or fifteen, but ceased using when he was about twenty-one because of the anxiety it caused him.

59. Mr McMahon started using amphetamines when he was fifteen or sixteen, initially using one point a day. He started using ice when he was twenty-three. His use was sporadic, but became a problem in 2008, when he was using three to four points intravenously each day. He last used amphetamines two years ago.

60. He used cocaine when he was twenty-one, but has not used the drug since then. He has also used benzodiazepines, which he first used at age twenty-five and last used some before his most recent arrest.

61. Mr McMahon was introduced to heroin use by his uncle when he was fifteen or sixteen. Within a year, he was using it daily and at his greatest use was ingesting up to two grams daily. He has, however, not used heroin now for about seven years. He has since then used other opioids, but his last use was about two and a half years ago.

62. At about eighteen years of age, he commenced on a methadone program. It is not clear when he ceased on that program, but later he started again. The date of this is unclear. In a report from the Court Alcohol and Drug Service (CADAS) dated 24 November 2008, it is stated that he had been on methadone treatment in the community for three years. He certainly was back on the program from 16 August 2008. He told the author of the most recent CADAS Report, dated 22 April 2014, however, that he had restarted only three years ago. In any event, he has continued while in custody and remains on the program.

63. Mr McMahon started smoking tobacco when he was thirteen, currently smoking ten cigarettes a day, though he has been trying to quit and is currently treated with nicotine replacement therapy.

64. As has been mentioned above, he has had a number of opportunities to participate in residential drug and alcohol treatment programs.

65. He attended Odyssey House and Wayback Ltd for short periods. He has also attended Alcoholics Anonymous and Narcotics Anonymous for short periods.

66. His most successful treatment came from his time at Bennelong's Haven, where he lasted for about four months about five years ago. He had to leave the Program because of a problem with his then partner. It seemed to be quite effective at least for a time. He remained drug free for a period, described curiously as either for four or five months (Pre-Sentence Report dated 19 April 2008) or for eighteen months (CADAS Report dated 22 April 2014).

67. He has had some counselling at Directions ACT in 2008. A report after seven sessions over seven weeks showed some commitment by him and some initiative for rehabilitation. He has also completed the First Steps Alcohol and Other Drugs Relapse Prevention Program while in custody.

68. Mr McMahon and his current partner have applied for acceptance into Bennelong's Haven.

69. Mr McMahon has a long and disgraceful criminal record. He has one hundred and fourteen offences recorded against him in fifty-five court appearances. The vast majority of the offences are dishonesty offences, especially burglary type offences, theft, including shoplifting, and goods in custody.

70. He has eight offences of violence on his record, however, but they are mostly assaults of the least serious form of the offence. He has a worrying number of offences of damaging property and nine offences of breaching his bail. There are also fourteen traffic offences, though generally of the less serious kind.

71. While his offending is serious and denies him leniency on that account, the offences since 2011 have been of the less serious kind: shoplifting, larceny and possessing a prescribed substance. A number did, however, attract gaol sentences.

72. He has a number of offences in the Magistrates Court which were outstanding, but which were finalised on 27 June 2014, and for which he has received a gaol sentence that has now, having regard to his incarceration, been served.

73. He also appears to have some outstanding offences in New South Wales, but has a plan to deal with those. He has been in custody in respect of these offences for five hundred and fourteen days, that is, effectively since 31 December 2012. The Crown, ably represented by Mr M Thomas, accepted that this at least approached the period which he might be expected to serve in full-time custody for the instant offences in any event as, for example, a non-parole period.

74. Mr McMahon's father submitted a letter of support. He emphasised the problems that Mr McMahon suffered in his early childhood and latter teens. He did, however, confirm that Mr McMahon seems to have been able to manage his drug addiction, though alcohol remains a major problem for him. He expressed willingness to help Mr McMahon find a job for him and to support him in seeking counselling.

75. I also had a letter from his current partner who expressed commitment to him and that he has a good effect on her when they are together.

76. A letter from his former partner is much less positive and makes it clear that she is not keen to permit Mr McMahon to have any contact with his daughter. She described his behaviour as violent and aggressive, especially when drug and alcohol affected.

77. Despite promises to her of getting a job and managing his addictions, he again has behaved violently when visiting for access to his daughter.

78. Since his daughter was about ten months old, he has had little contact with her and she was not receptive to him when they met by chance in the street one day.

79. Significantly, his former partner said that he has a history of making promises to his daughter and not keeping them.

80. Mr McMahon also wrote directly to me a letter that Ms T Warwick, his counsel, tendered. In it, he expresses commitment to his daughter and a wish to reform so as to be able to have a role in her life. She apparently has had to be home schooled because she was bullied because her father was in gaol.

81. He said he appreciated that he needed to have a stable job, a stable and secure home and his life in order before he would be able to achieve this. Ms Warwick pointed out that he would need to prove these things to the Federal Circuit Court and not just to his ex-partner or to Care and Protection Services.

82. He said that he committed himself to changing his life and, certainly, he has made some progress. He appears to be drug free, though there is still crime in his background over the last few years.

83. One challenge for me is that many of the promises he makes in the letter are very similar to the promises he made in his letter of 22 July 2008 in support of a bail application then to Gray J, when he said

I know that I will do the right thing on bail as I have so much to lose including [his ex-partner and her] kids. This is the first time in so many years my Dad has decided to let me live with him, give me work and support me and I will not let him down or anyone else including myself. This is the last chance I have and will ever get and I'm not about to throw it away. My father will also sign assurity. I am back on a stable dose of methadone as well. I will not drink or touch drugs, if I do I know I will lose my family and my Dad will withdraw my bail and tell me to hand myself back in.

84. He was released on 23 January 2009 and did not return to court until he was arrested in 2013. I do not necessarily disbelieve the commitment he expresses, it is just that he has expressed the same commitment before and been unable to live up to it.

85. The CADAS Report recounts his goal to leave prison and "be normal". His goal is to marry his current partner. His treatment goal is to remain abstinent from alcohol. He says he is best when employed. Unfortunately, the economic conditions in Canberra mean that his father cannot get him a job with his current business and it will be difficult to find employment.

86. The CADAS staff have discussed various treatment options which that service has helped him explore and which it will continue to facilitate on his release from custody.

87. The various authors of the Pre-Sentence Reports assess Mr McMahon as at a high risk of re-offending. This was linked to his homelessness and his serious abuse of alcohol. If his relationship is stable, his partner will be able to offer him accommodation in her home. Similarly, if he commits to a proper rehabilitation program, this will address the alcohol abuse for as long as it is effective.

88. The common assault cannot be regarded as a very serious offence. It is described as occurring as Mr McMahon "raised his arm and hit [his former partner] on her hand". There is no evidence as to the effect of the assault on his former partner. It is, of course, in the context of family violence and this means I should not trivialise the offence but it is not of great seriousness.

89. The damage to the bathroom door is more serious, however. To attempt to get into the bathroom where his ex-partner had gone for safety and to attack the door with a knife is a serious act. I did not have details of the damage caused, which is always relevant, but I cannot believe that it would be other than significant. The fear the incident would have caused, however, is also relevant and his ex partner was clearly fearful enough to call for help from the police. Anger and aggression fuelled by alcohol is always a serious matter. The alcohol means often that the chance to reason with or calm the assailant is unlikely to be successful.

90. Burglary, too, is a serious offence. The maximum penalty provided by the legislature makes that clear. In one case, it was aggravated by the deception perpetrated on an elderly lady of whom Mr McMahon and his co-offender took significant disadvantage. As Street CJ pointed out in R v Hayes [1984] 1 NSWLR 740 at 742, burglary has serious consequences for the victims and the community and courts must do what they can to prevent such crimes.

91. The burglaries committed by Mr McMahon were otherwise unremarkable. That is not to say they were not serious offences, but there was, by and large, no particularly aggravating features accompanying them.

92. Ms Warwick produced a table of sentences imposed for offences of burglary. The sentences, in the case of twenty-eight offenders dealt with between April 2009 and December 2012 (with two 2001 sentences), ranged between nine months' imprisonment and two years and eleven months' imprisonment, with the majority of sentences between twelve months and eighteen months' imprisonment. In Love v The Queen [2012] ACTCA 8, the Court of Appeal accepted that current sentencing practice accorded with this approach. The Court said (at [13]), that a table produced to the Court

indicated that sentences of around 18 months could be said to be within range for the ordinary course of domestic burglaries, but that higher sentences would be justified in particular circumstances.

93. Similarly, the Court of Appeal reduced a sentence of three years for burglary to two years and six months in Wickey v McVicar [2012] ACTCA 38 and a sentence of three years and two months to two years in Richards v The Queen [2012] ACTCA 10.

94. The offences of theft are serious, also, though ordinarily it would be considered appropriate to make them concurrent with the burglary with which they comprised part of the one enterprise as explained by the Supreme Court of South Australia in Attorney-General v Tiohy (1982) 30 SASR 84 at 92-3.

95. In this case, the goods stolen did not appear to have special sentimental value, though in one case, the value of the goods stolen was sufficiently large to suggest that some element of accumulation of the sentence where the accompanying burglary would be appropriate.

96. As to the other offences of damaging property, the value of the damage caused was said to be $500 in one case and likely to be the same in the other. In both cases, as with the thefts, they seem serious enough but appropriately dealt with by concurrent sentences with the burglary for they were the method by which entry was caused. The offence of possessing stolen property is, again, a serious offence, but the property involved was not of great value.

97. Finally, failing to comply with a bail undertaking is a serious offence. It is an important part of the integrity of the criminal justice system. The prevalent and consequent expense occasioned by such offences as well as the seriousness led Crispin J to suggest in Ursino v Read [2005] ACTSC 106 at [12] that "in the absence of any significant mitigating factors, custodial sentences should be expected for offences of [failing to appear in answer to a bail undertaking]".

98. The earliest offences for which I must sentence Mr McMahon were committed now seventeen years ago. The more recent ones over five years ago. As I noted above (at [above]), the New South Wales Court of Criminal Appeal in R v Todd has said that the delay in sentencing must be taken into account. That sentiment was approved by the High Court in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 64.

99. That latter was a case, however, of a person facing sentence in one State when he had already been sentenced in another State for an offence of the same nature committed at the same time. This is not the case here. Indeed, Mr McMahon left the Territory, breaching his bail and then, later, while in other States, committed further offences.

100. This is also not a case where Mr McMahon was not the author of the delay, but it was caused by the prosecution or the criminal justice system, as in R v Cockerell [2001] VSCA 239; (2001) 126 A Crim R 444 at 447; [10].

101. Even in cases where rehabilitation has been achieved, the courts have still discounted the leniency that can be afforded where the delay is caused by the offender. See R v Whyte (2004) VR 3397 at 4.4; [24], R v Sparks [2010] NSWSC 1512 at [50].

102. That the delay is very significant cannot, however, be entirely discounted.

103. As Hunt J, with whom Wood and Finlay JJ agreed, said in R v Harrison (1990) 48 A Crim R 197 at 198-9

Where there has been a lengthy delay in the prisoner being dealt with in the second State, weight must be given to the staleness of the local crime, to the effect upon the prisoner of the uncertainty as to what was to happen by way of punishment for that crime, and to the progress of the prisoner's rehabilitation during that period whilst serving the sentence earlier imposed.

That is the approach laid down by this Court in Todd, as approved by the High Court in Mill. The principle of totality, of course, applies not only to sentences imposed for offences committed as part of a connected and roughly contemporaneous series of offences. It must also be applied wherever a prisoner is being sentenced for an offence whilst he is serving a sentence for some other offence - whether committed roughly contemporaneously or at widely different times.

(Citations omitted)

104. In Regina v The Queen [2004] NTCCA 9; (2004) 149 A Crim R 583, this approach was applied even though the offender had escaped lawful custody and committed the further offences whilst at large as a result.

105. It seems to me that I need to take into account that the offences are stale, which does not diminish their seriousness but moderates, to a very limited degree, the punitive aspect of the sentence. I must also have regard to totality and recognise the significant periods of imprisonment that Mr McMahon has experienced in the past.

106. These matters can only affect the sentence to a limited degree. There is, however, perhaps some difference with, for example, historical child sexual assault cases, for Mr McMahon has been charged with the offences to which he has pleaded guilty and must have lived with the uncertainty of not knowing when he would inevitably need to face up to them and the inevitable punishment consideration.

107. I take into account Mr McMahon's pleas of guilty which were all made at an early time and which justifies a significant discount.

108. I take into account the purposes of sentencing as set out in s 7 of the Crimes (Sentencing) Act.

109. I take into account the nature and circumstances of the offences as I have described them. They are serious offences in themselves, and varying seriousness between them, but generally at the lower end of seriousness for the offence. The burglary and associated offences were part of a course of conduct. I have, apart from the age of one victim of his burglaries, no information about the victims. The offender took advantage of the elderly victim in a disgraceful way, but did not commit any direct or indirect violence on, or make threat towards, her.

110. I take into account the loss and damage suffered in the offence so far as I know them. In one theft, for example, the value of the property was quite significant, many thousands of dollars. I take into account the responsibility that Mr McMahon took for the offences, though in two of the burglaries he was accompanied by others. It appears from the evidence I have that his co-offender had not been dealt with by the courts.

111. I take into account Mr McMahon's subjective circumstances as set out earlier in these remarks. I also take into account that he was affected by alcohol at the time of the 2008 offences, though I do not consider that this offers much mitigation.

112. I take into account the efforts Mr McMahon has made towards his rehabilitation, completing the First Steps Program while in custody and seeking to join the Bennelong's Haven program, which seems to have been the most successful of the rehabilitation programs that he has tried. I accept too that Mr McMahon has shown remorse. I have also had regard to current sentencing practice as I have noted earlier in these remarks (at [92]).

I convict you of the offence of burglary on 14 May 1997.
I convict you of the offence of theft on 14 May 1997.
I convict you of the offence of burglary on 21 May 1997.
I convict you of the offence of damaging property on 21 May 1997.
I convict you of the offence of burglary on 23 May 1997.
I convict you of the offence of damaging property on 23 May 1997.
I convict you of the offence of burglary on 23 May 1997.
I convict you of the offence of theft on 23 May 1997.
I convict you of the offence of possessing stolen property on 28 May 1997.
I convict you of the offence of failing to appear in accordance with your bail undertaking on 10 June 1998.
I convict you of the offence of assault on 1 January 2008.
I convict you of the offence of damaging property on 1 January 2008.
I convict you of the offence of assault on 1 January 2008.
I convict you of the offence of damaging property on 1 January 2008.
I have decided not to sentence you for these offences at this time. I note that you are not serving, nor liable to serve, a term of imprisonment for an offence other than the offences for which I am sentencing you.
I have considered the Pre-Sentence Report about you and the other evidence I have heard on sentence. I consider that you should be given an opportunity to address your criminal behaviour and the alcohol abuse and drug addiction which has contributed to the behaviour before I sentence you for these offences.

33. I am satisfied that I may release you on bail under the Bail Act 1992 (ACT).

34. Accordingly, I order that you appear before me at 9:30 am on Tuesday 2 December 2014 to be sentence for the offences of which I have convicted you. I release you today on bail to appear on 2 December 2014, and impose the following conditions on the bail:

(h) That you be under the supervision of the Director-General or her delegate to comply with all reasonable directions of the person delegated to supervise you;

(i) That until admitted to the rehabilitation program at Bennelong's Haven, Kinchella, New South Wales, you reside at [Redacted];

(j) That by no later than 30 July 2014, you admit yourself to the rehabilitation program at Bennelong's Haven and remain in that program save for attendance at Court until it is completed;

(k) That you obey all reasonable directions of the person in charge of the Program;

(l) That you consent to the staff of Bennelong's Haven providing any information about you and your progress in the Program as may be reasonably be required by the person delegated to supervise you;

(m) That if you are not admitted to the Program, or you are discharged from the program, you report within forty-eight hours to the Registrar of the Supreme Court of the ACT in person for a review of your bail; and

(n) That you not drink alcohol or consume illicit drugs.

35. I indicate that if you do not comply with this order and the bail conditions, I consider that I should sentence you to a term of immediate imprisonment for a period of approximately four years with a non-parole period, but which would take into account the time you have already spent in custody. I indicate that if you comply with this order and the bail conditions I consider that you should be sentenced to imprisonment for a period of approximately three years and six months. The balance, after taking into account the time you have already served, will be either served by way of periodic detention or wholly suspended with a Good Behaviour Order perhaps including community service conditions.

36. I explain to you the following. If you breach the conditions of the bail or the order you are liable to be arrested and brought before the Court. I may review the deferred sentence order at any time. In addition to me reviewing the deferred sentence order on my own initiative, the Director-General, the Director of Public Prosecutions or yourself may apply to the Court to have the order reviewed.

37. On a review of the deferred sentence order I may:

(a) take no action; or

(b) warn you about the need to comply with the conditions of the deferred sentence order and your bail; or

(c) amend the deferred sentence order's conditions; or

(d) cancel the order.

38. If your bail is revoked the deferred sentence order is automatically cancelled.

114. [His Honour then spoke directly to Mr McMahon]

115. Mr McMahon, the fact that you have spent so long in custody is really the only fact that allows me to give you this opportunity, but I accept that you recognise that this is really the turning point for you. If you take this opportunity, then you have got a real chance to connect with your family, to make a life for yourself with your partner and possibly aid her in possibly gaining access, probably not custody, of her child, but you have got a lot of hurdles to overcome and so you have got to really put effort into it.

116. The fact that you have been committed to this and remained waiting for it for so long and are prepared still to go to it giving you some comfort. It is possible, I suppose, that you could take this opportunity to simply disappear. You know, however, that the real likelihood is that you will be found at some stage and you will spend a lot of time in prison. I hope you do not like being in prison because that is a great motivator to avoid that in the future. It is not going to be easy. You have got a lot to work through and to overcome and I am well aware that drug addiction and alcohol addiction are not easy to overcome.

117. The most important thing is that if things fall apart, you come back to the Court. If you do not do that then it is not inevitable, but it is almost inevitable, that you throw things away and that it will be a revolving door, in and out of prison syndrome, for the rest of your life. If you come back to Court, I do not say that I will smile at you and ignore what has happened and it may be that you have to spend some time in gaol. But if you come back to Court, there is every opportunity that we can sort out whatever has gone wrong and try and fix it and move on.

118. If you have made good progress but something has blown up, then you should put that behind you, if you can. If you have not committed further offences, if you have come back to the Court, presented yourself, owned up to your responsibility, then there is every possibility of some satisfactory outcome. I do not know whether you heard, but during the week, that happened with someone I sent off to Queensland to drug rehabilitation which fell apart; she came back and saw me the next day and we have given her some time to work out where she should now go.

119. I can do that; I do not promise that will happen, but we can do that. That is the second most important thing. The most important thing is to work hard at your rehabilitation at Bennelong's Haven. It is important that you have got your partner there and to work that through together means that you can be a productive and useful member of the community and not be a burden on the community languishing in the Alexander Maconochie Centre and being of no use to anyone.

120. I genuinely wish you all success in this endeavour and anything I can do to support that I will do but you have got to play your part too and I hope you will do so.

I certify that the preceding one hundred and twenty- [120] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.

Criminal Code Act 2002(ACT)

(Sentencing) Act 2005

Criminal Code Act 2002(ACT)

(Sentencing) Act 2005

At a glance

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Judgment (156 paragraphs)

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