R v Ngerengere [2015] ACTSC 224 (7 August 2015)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

[2015] ACTSC 224

1. Michael Ngerengere be convicted of the offence of burglary on 18 July 2014.

2. Michael Ngerengere be convicted of the offence of theft on 18 July 2014.

3. Michael Ngerengere appear before this Court at 9:30 am on 9 March 2016 to be sentenced for the offences of burglary and theft.

4. Michael Ngerengere be released on bail to appear before this Court at 9:30 am on 9 March 2016 subject to the following conditions:

a) That he accept supervision by the Director-General or her delegate and obey all reasonable directions of the person supervising him.

b) That he admit himself to the Karralika Therapeutic Community on 7 September 2015 and remain in the rehabilitation program there until he appears again in court.

c) That he comply with any requirements of the Karralika Therapeutic Community for pre-admission detoxification.

d) That he obey all reasonable directions of the person in charge of the Karralika program and consent to that person providing to the person supervising him any information about his progress as may be reasonably requested.

e) That, if he are not admitted to the program or if he leaves or is discharged from the program for any reason, he report to the Registrar of the Supreme Court within 24 hours or the next business day to have his bail reconsidered.

CRIMINAL LAW - Practice and Procedure - Bail - Aggravated burglary - Theft - Childhood disadvantage - Serious mental health issues - Significant drug use - Extensive criminal history - Offender seeking rehabilitation - Deferred sentence order

Crimes (Sentencing) Act 2005 (ACT), ss 7, 33

Magistrates Court Act 1930 (ACT), ss 88, 90A

Douglas v The Queen (1995) 56 FCR 465

Fusimalohi v The Queen [2012] ACTCA 49

Hutchinson v The Queen [2014] ACTCA 29

Monfries v The Queen (2014) 68 MVR 385

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

R v Hayes [1984] 1 NSWLR 740

R v Kristianssen [2015] ACTSC 159

Simonds v The Queen [2013] ACTCA 13

Tate v The Queen [2012] ACTCA 50

Legal Aid ACT (Defendant)

1. This Court sees many cases of burglary and theft where business, community or residential premises are entered by trespassers seeking to steal property from them.

2. It is the duty of the courts to address this criminal conduct by its powers of sentencing. This requires the court to balance the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT), which the legislature has provided are to be used to punish those who commit such crimes or to deter the offender from repeating them and others who might consider committing them.

3. Those purposes are, however, blunt instruments in themselves and the courts are required to address the sentence to be imposed on an offender with care, and often creativity, in order to be effective in its task.

4. Michael Ngerengere has pleaded guilty to committing an offence of aggravated burglary and theft.

5. The offence of aggravated burglary is contrary to s 312 of the Criminal Code 2002 (ACT) and attracts a maximum penalty of 2000 penalty units (that is, at the time, a fine of $280,000) and imprisonment for 20 years.

6. The offence of theft is prohibited by s 308 of the Criminal Code which provides for a maximum penalty of 1000 penalty units (that is, at the time, a fine of $140,000) and imprisonment for 10 years.

7. The courts have often said that the maximum penalty is an important indicator of the relative seriousness of an offence. See, for example, Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at 133; [31].

8. Early in the morning of Friday 18 July 2014, Mr Ngerengere and a companion, Paul Summerell, entered a tool shed at the Canberra Tradesman's Club at Dickson. The shed is, as I understand it, situated in a secure area of the Club's underground car park which is not open to the public.

9. Mr Ngerengere and Mr Summerell then removed various tools valued at approximately $5,963. A third male, who is apparently unknown to police, drove a motor car to the tool shed and helped Mr Ngerengere and Mr Summerell load the tools into the car.

10. Later that morning, the Club's General Manager reported the burglary to police. Police attended and were provided with CCTV footage which showed the removal of the tools from the shed to the car.

11. Still photographs were made from the CCTV footage and distributed to police officers who identified Mr Ngerengere and Mr Summerell.

12. When a crime scene investigator attended the scene of the burglary, she took possession of a black and white scarf attached to a section of external mesh which separated the shed from the car park and which had been cut and pulled out to allow the offenders to gain access to the shed. DNA located on the scarf matched that of Mr Ngerengere to a very high degree of probability when compared to another individual.

13. Police later executed a search warrant on Mr Ngerengere's home and found clothing that matched the clothing he was seen to be wearing in the CCTV footage.

14. Some of the tools belonged to an individual, Mr Peter Cain, who seeks compensation in the sum of $2,213.

15. Police arrested Mr Ngerengere and he spent a day in custody before being released on police bail.

16. Mr Ngerengere appeared in the Magistrates Court on 11 August 2014 and his bail was continued. After a number of adjournments, he entered a plea of not guilty but after further adjournments he was, on 30 March 2015, committed to this Court, apparently for trial.

17. Regrettably the Magistrates Court bench sheet does not record a committal order actually being made, though a direction under s 88 of the Magistrates Court Act 1930 (ACT) was made dispensing with such of the provisions of Pt 3.5 as is necessary to give effect to a committal order. That section would not authorise the court somehow to dispense with the actual committed order.

18. A notice under s 90A of the Magistrates Court Act, however, did state that the committal was for trial. I am unable to say how the Deputy Registrar determined that.

19. In any event, the matter proceeded in this Court as a committal for trial until 24 June 2015 when Mr Ngerengere entered a plea of guilty to the two offences for which I must now sentence him. The plea was not an early one and the case against Mr Ngerengere was a strong one, but there are some savings to the administration of justice which entitles him to a discount for the plea.

20. Mr Ngerengere did not give evidence in the sentencing proceedings. He was, of course, not obliged to do so and I make no adverse finding as a result, though I find this often helps me evaluate the subjective material about an offender.

21. I had a Pre-Sentence Report, a Report from the Court Alcohol and Drug Assessment Service (CADAS), a Forensic Mental Health Report and Mr Ngerengere's criminal record. From these I can, and do, make the following findings.

22. Mr Ngerengere was born in New Zealand 42 years ago. He is of Polynesian-Maori descent. He and his two brothers and two sisters had a disadvantaged childhood; his parents, who abused alcohol, were regularly abusive, physically assaulting him and his siblings. He said that the beatings of his mother killed his brother when she shook him violently. He lived in fear of being assaulted. He reported that his mother hit him on the head with a hammer on two occasions and has pointed out scars where he said it happened. He still has nightmares and feelings of distrust from this treatment.

23. His family moved to Australia when he was 13 and he then ran away from home. He has had little contact with his family since then.

24. He was placed in a boy's home in the Northern Territory. He said it was "one of the roughest in the country" and has since been closed. He was physically punished by the staff through serious corporal punishment.

25. Mr Ngerengere liked school, though he is resentful that his teachers did not report the obvious signs of physical abuse with which he attended at school. He had learning problems and was not a good student. He left school in about Year 7. He has since attempted to obtain a Year 10 certificate but did not achieve it.

26. He has had limited employment, mainly in part-time labouring positions. Since 2008, he has received a Disability Support Pension.

27. Mr Ngerengere has had two significant relationships and has six children, ranging in age from 8 to 24 years old. None of them currently live with him, although he has tried to keep some contact with them.

28. He has been living in a flat rented from ACT Housing. His finances are managed through the Public Trustee. His main companions are all involved with illicit drug use and criminal activities.

29. Mr Ngerengere started drinking alcohol when he was aged 10, a remarkably young age. He became a regular drinker from about 16 or 17 and the abuse of alcohol led to the commission of many of the offences on his criminal record. He has since reduced the occasions when he drinks to excess to about twice a year. His current alcohol use is now minimal and he says has not had an alcoholic drink for 6 months.

30. He started using cannabis at about the same time as he began drinking, leading to regular use by the time he was 22. He currently smokes daily, using about 1 gram a week. A requirement for submitting to urinalysis has led to him reducing his use and he is no longer using daily.

31. He first used amphetamines when he was 18 but increased its use until he was, by 30, using regularly. Again he has reduced his use, but has not ceased using. He does not consider his use of methylamphetamine problematic or that it is associated with his criminal behaviour.

32. He has used cocaine a few times and heroin. He started using heroin while in gaol when he was 26 but ceased regular use in 1999 and stopped altogether in 2001.

33. He has used MDMA or ecstasy but not regularly and last used it in 2008. He has had limited consumption of LSD and mushrooms but none since 2001. He has used inhalents such as glue, aerosol cans and fire extinguishers. He became a regular user for a while as a 15 or 16 year old but has not used since then.

34. He began smoking tobacco when he was 8 years old but is currently only smoking 2 or 3 cigarettes a day. He had a problem with gambling in the second half of 2014 but does not presently gamble.

35. Mr Ngerengere has made some attempts at drug rehabilitation. In 2005 he spent time at Miracle Haven in Morisset, NSW. He also spent 4 months at the Weigelli Centre in Cowra which he also liked but from which he was discharged for drinking alcohol. He has completed alcohol and other drug courses in custody and, in late 2014, some counselling with ACT Health's Alcohol and Drug Service, though he did not like the counsellor and stopped going. He explained that he understood the counsellor to be a young trainee to whom he needed to explain himself repeatedly and he left sessions feeling worse. He has not had any subsequent treatment or counselling.

36. He has, however, on his own initiative, applied for entry to the Karralika Therapeutic Community and he has been assessed as suitable for admission and offered a place on 7 September 2015 after he has completed detoxification.

37. Mr Ngerengere's mental health is also of concern. It is unsurprising that, in the light of his challenging childhood, he should experience some mental impairment.

38. Although the Forensic Mental Health Report tendered to me addressed different issues, namely fitness to plead and a defence of mental impairment, it was a helpful expert report on which I can, and do, rely.

39. The report noted that he has some physical problems, especially emphysema, and some injuries resulting from a motor vehicle collision.

40. He has been diagnosed with a psychotic illness for which he had been treated in custody for about the last 15 years. He initially rejected the diagnosis but has more recently accepted that he does suffer a mental impairment. He has a number of psychotic beliefs and perceptions. Dr Bree Wyeth, Consultant Psychiatrist, diagnosed him as having a major mental illness, namely Schizophrenia or a Schizoaffective Disorder. He is currently receiving depot injections fortnightly.

41. Dr Wyeth was cautious, noting that the "confidence and reach of [her] opinion is limited somewhat by the lack of evidence available to consider in the case." Thus, while she considered that there was nothing to suggest that there was a clear link between his illness and the offending behaviour, she felt that the criminality came from "a poor choice under the influence of peers and intoxicated with drugs and alcohol".

42. The opinion was, of course, directed to addressing the issues of fitness to plead and a mental impairment defence.

43. As his mental illness results in him isolating himself, there can be no doubt that the use of drugs and alcohol is likely related to and enhanced or perpetuated by his mental illness and that the use of such substances leads to his undesirable peer association. Mr Ngerengere reported that Mr Summerell was "a bad guy".

44. Mr Ngerengere had used 7 to 8 points of ice on the night of the offences and wanted to get more drugs.

45. Dr Wyeth's opinion does support this general approach when she says:

I would note to the Court that while not finding that he has a defence of mental impairment available to him, in my opinion, his mental illness and resultant disability and rehabilitation needs could be considered at the time of sentencing.

46. Mr Ngerengere has a long criminal history in a number of jurisdictions, namely the Northern Territory, Victoria and New South Wales, as well as in this Territory.

47. He has been found guilty of 71 offences. The majority are dishonesty offences and offences of violence, though he has a significant number of low level offences relating to breaches of public order (such as hindering police and being drunk in a public place).

48. He has been convicted in Victoria of seven offences including armed robbery, dealt with in 2001, and attempted armed robbery, dealt with in 1998, for which, however, the sentences were 18 months and 2 years and 6 months imprisonment respectively.

49. He has been sentenced to imprisonment on a number of occasions but his offending is generally in the mid to lower range of seriousness, that is the most serious assault offences are assaults occasioning actual bodily harm (4 offences); the most recent committed in 2005. Although he has been found guilty of burglary offences (2 offences) the most recent was, again, committed in 2005. The majority of the dishonesty offences are of minor theft (4 offences) or stealing (11 offences), though many of the sentences for the latter offence show that they were at the lower end of seriousness.

50. Mr Ngerengere's offending behaviour has also been de-escalating until he committed these offences. Thus, in this Territory, where his most recent offending has been committed, he was convicted of committing a burglary in 2005 and of assault occasioning actual bodily harm also committed in 2005. Since then, his offending has been of offences of damaging property (1 offence), hindering or obstructing police (3 offences), common assault (2 offences), minor theft (3 offences), possessing drugs (1 offence), possessing stolen property (1 offence) and 3 traffic offences. He has, however, breached Good Behaviour Orders on numerous occasions.

51. His last offence, before the current offending, was committed in 2010.

52. The record is a bad one and deprives Mr Ngerengere of much leniency, but there are some matters to note. Until this latest offending, he has been committing less serious offences. To commit any offences, of course, is unacceptable and provides no excuse, but it is helpful in considering how his criminal behaviour may be better addressed.

53. The offending, more recently, is clearly related to his drug use and fuelled by his social isolation resulting from his drug use and mental illness.

54. As I indicated above, offences of burglary and theft are serious offences and need to be dealt with by the courts as such, but in a way that will reduce their occurrence in the Territory.

55. I have often referred to the comments of Street CJ in R v Hayes [1984] 1 NSWLR 740 at 742, about the offence of burglary in which his Honour confirms the role of the court, as well as pointing out the wider effect on the community beyond the victim, in destabilising the community and imposing costs.

56. Having said that, the circumstance of aggravation was that the burglary was committed in company. I note that, to date, neither of the co-offenders have been arrested or dealt with by the courts.

57. As there were no people in, or likely to be in, the tool shed at the time, this is a less serious circumstance of aggravation than the other circumstance of being armed with a weapon.

58. The offence is otherwise unremarkable. The value of the property stolen was relatively substantial and a significant part was owned by an individual who, it appears, has not been able to be compensated through insurance. There are, otherwise, no particular aggravating features.

59. I must have regard to the purposes of sentencing set out in s 7 of the Crimes Sentencing Act. In this case, I accept that general deterrence must play some part, though for reasons I set out below, this is to be moderated. Given Mr Ngerengere's recent history, I do not consider that specific deterrence plays a very significant part. Rehabilitation can be allowed a greater role given the initiative Mr Ngerengere took in accessing a place in the Rehabilitation Program of the Karralika Therapeutic Community.

60. I must also accord a role to the need to recognise the harm done to the victims.

61. I have taken into account the matters set out in s 33 of the Crimes (Sentencing) Act so far as I know them. These have, save for the matter of sentencing practice which I address below, been set out earlier.

62. I take into account Mr Ngerengere's plea of guilty. Though not made at an early stage, it is clear that it could not reasonably have been entered until the issues of fitness to plead and mental impairment had been resolved. The Forensic Mental Health Report was ordered on 4 December 2014 and was for the court on 13 March 2015. Mr Ngerengere pleaded guilty on 24 June 2015, some months after that time, but he had indicated a plea to the court on 28 May 2015 when the date for sentence was set.

63. The plea of guilty was not entered at the earliest time, but it was before a date for trial had been set and it entitles Mr Ngerengere to a discount on sentence of some significance.

64. I also take into account Mr Ngerengere's mental illness. In particular, it moderates the effect of general and specific deterrence.

65. While I noted the lack of direct relevance to the commission of the offences above (at [41]), I accepted an indirect relevance. I was also directed to the following passage in Monfries v The Queen (2014) 68 MVR 385 at 403; [67] where Murrell CJ said:

Where a mental health condition does not reduce moral culpability, does not render an offender an inappropriate vehicle for a message of general deterrence or does not otherwise have particular relevance to a specific sentencing purpose, and does not mean that the offender will suffer more in custody, the mental health condition may nevertheless be considered as part of an offender's general subjective circumstances, and may inform the sentencing outcome in the same way as other subjective circumstances do so.

66. Her Honour, however, was in dissent. Ross J, who joined with Burns J in the majority, held at 433; [180]:

There is some force in the appellant's submission that his Honour should have moderated the weight given to general deterrence. It is apparent from his sentencing reasons that his Honour did not moderate the weight to be accorded to general deterrence on account of the appellant's mental health conditions (see paragraph 167 above). I accept that not every case of mental illness calls for less emphasis to be placed on the need for general deterrence (R v Wright [2013] NSWCCA 82 at [47]), but in my view this was such a case. The range and extent of the appellant's mental health conditions called for some sensible moderation in considering the weight to be afforded in general deterrence, as Batt JA (with whom Winneke ACJ and Hampel AJA agreed) observed in R v Yaldiz [1998] 2 VR 376 at 381, applied in R v Lewis; unreported, Court of Appeal (Winneke P, Brooking and Charles JJA), 20 April 1998, p 9; R v Swingler [2001] VSCA 26 at [13]; R v Chambers (above) at [26]-[28]; R v Ahmed [2006] VSCA 200 at [28]:

General deterrence is not eliminated but still operates, sensibly moderated, in the case of an offender suffering from a mental disorder or severe intellectual handicap.

67. It seems that Burns J, at 414; [124], agreed with the conclusions of Murrell CJ.

68. Accordingly, I am satisfied that I should take into account Mr Ngerengere's mental illness in the way I have suggested, namely as reducing the need for general deterance.

69. Mr Ngerengere has generally conducted himself well in residential drug rehabilitation programs. He is to be given credit for that. His initiative in seeking to enter the Karralika Therapeutic Community is also to be given credit. I have described that program in R v Kristianssen [2015] ACTSC 159 at [12]- [14]. I note that the CADAS Report stated that Mr Ngerengere's application to the program is supported and it is accepted that such a program may be helpful to him at this time.

70. While drug addiction is not a mitigating factor, it is relevant that a drug addicted person commenced using drugs at an early age, as did Mr Ngerengere. See Douglas v The Queen (1995) 56 FCR 465 at 470.

71. As to sentencing practice, I have considered what has been said in the Court of Appeal in cases such as Fusimalohi v The Queen [2012] ACTCA 49, Tate v The Queen [2012] ACTCA 50, Simonds v The Queen [2013] ACTCA 13 and Hutchinson v The Queen [2014] ACTCA 29.

72. I note that Mr Ngerengere has been assessed as unsuitable for a community service work condition to a Good Behaviour Order and for serving a sentence of imprisonment by periodic detention.

73. It seems to me that Mr Ngerengere should be given the opportunity to participate in the Karralika program.

74. It seems to me that this is a case for a deferred sentence order to give Mr Ngerengere an opportunity to pursue rehabilitation for his drug dependence, which I consider to be a contribution to his criminal behaviour.

75. If he does successfully address that, his achieved rehabilitation would be a legitimate basis for leniency to be extended to him on sentence.

77. I convict you of the offence of burglary on 18 July 2014.

78. I convict you of the offence of theft on 18 July 2014.

79. I have decided not to sentence you for these offences at this time.

80. 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.

81. I have considered the Pre-Sentence Report about you and the evidence in the Report of CADAS and of Dr Bree Wyeth, Consultant Psychiatrist.

82. I consider that you should be given an opportunity to address the drug dependence which has contributed to your criminal behaviour before I sentence you for these offences.

83. I am satisfied that I may release you on bail under the Bail Act 1992.

84. Accordingly, I order that you appear before me at 9:30 am on 9 March 2016 to be sentenced for the offences of burglary and theft.

85. I release you on bail to appear on that date and impose the following conditions on the bail:

a) That you accept supervision by the Director-General or her delegate and obey all reasonable directions of the person supervising you.

b) That you admit yourself to the Karralika Therapeutic Community on 7 September 2015 and remain in the rehabilitation program there until you appear again in court.

c) That you comply with any requirements of the Karralika Therapeutic Community for pre-admission detoxification.

d) That you obey all reasonable directions of the person in charge of the Karralika program and consent to that person providing to the person supervising you any information about your progress as may be reasonably requested.

e) That, if you are not admitted to the program or if you leave or are discharged from the program for any reason, you report to the Registrar of the Supreme Court within 24 hours or the next business day to have your bail reconsidered.

86. I indicate that if you do not comply with this order and the bail conditions, I consider that you should be sentenced to a term of immediate imprisonment for a period of approximately eighteen months with a non-parole period. 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 eighteen months which would be wholly or partially suspended with a Good Behaviour Order which may include a community service condition.

a) If you breach the conditions of the bail or the order you are liable to be arrested and brought before the Court.

b) 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.

c) On a review of the deferred sentence order I may:

ii. warn you about the need to comply with the conditions of the deferred sentence order and your bail; or

iii. amend the deferred sentence order's conditions; or

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

I certify that the preceding eighty-seven [87] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.