R v NX [2017] ACTSC 72

See [47]-[52] below.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - judgment and punishment - sentence - burglary - aggravated burglary - theft - taking, driving or riding in motor vehicle without consent - damage property - routine domestic burglaries - offences committed to raise money for drugs - early introduction to substance abuse - non-parole periods not available for juvenile offences - importance of avoiding crushing sentence.

Crimes (Sentencing) Act 2005 (ACT), ss 133C, 133D, 133G

Criminal Code 2002 (ACT), ss 308, 311, 312, 318(1), 403

Douglas v The Queen [1995] FCA 411; 56 FCR 465

Talbot v The Queen [1992] FCA 54; 34 FCR 100

Legal Aid ACT (Offender)

SCC 253 of 2016; SCC 19 of 2017

1. NX has pleaded guilty to 13 offences, as follows:

(a) four burglary offences, arising under s 311 of the Criminal Code 2002 (ACT) and carrying a maximum penalty including 14 years imprisonment;

(b) one aggravated burglary offence, arising under s 312 of the Criminal Code and carrying a maximum penalty including 20 years imprisonment;

(c) five theft offences associated with the burglaries, arising under s 308 of the Criminal Code and carrying a maximum penalty including 10 years imprisonment;

(d) two offences of taking, driving or riding in a motor vehicle without consent arising under s 318(1) of the Criminal Code and carrying a maximum penalty including five years imprisonment; and

(e) one damage property offence arising under s 403 of the Criminal Code and carrying a maximum penalty including 10 years imprisonment.

2. All the offences for which I am to sentence NX were committed in 2014, except one of the motor vehicle offences which was committed in 2016.

3. The 2016 offence was committed in breach of a 12-month good behaviour order or orders made in the Magistrates Court in November 2015 but expressed to take effect on 23 July 2016. The good behaviour orders were associated with the suspension of six months imprisonment, being the remaining three months of a sentence for aggravated robbery and an entirely accumulated sentence of three months for possession of an offensive weapon committed some weeks after the robbery.

4. That is, NX was in the community for only six weeks, after being released when that sentence was suspended, before he offended again in early September 2016.

5. I note at this point that NX also signed a good behaviour undertaking, relating to a further sentence of one-month's imprisonment for a theft offence, which would also have been breached by the September 2016 offence, but since the Magistrate's order is recorded on her bench sheet as requiring that sentence to run concurrently with the aggravated robbery sentence, it seems to me that that sentence was in fact served in custody while NX was serving the first 12 months of the aggravated robbery sentence. However, to ensure there is no further action taken on that sentence, I shall mention that sentence also in dealing with the good behaviour orders.

6. The statement of facts for the 2014 offences describes five incidents of what might unfortunately be described as "routine domestic burglaries".

7. All the burglaries were committed in March 2014 in the southern suburbs of Canberra. The first four were daytime burglaries. Access was gained to houses, in three cases by cutting a flyscreen and thereby enabling access through a window or door; in the fourth case a key safe in the front yard was broken into and the key was used to get into the house. In that case, NX and another young man were surprised in the living room by the occupant, and they ran away, taking nothing but the key. The presence of the other young man made that an aggravated burglary. In the other three cases, the burgled houses were ransacked and various goods were taken, including jewellery, coins, laptops and other electrical items, and in one case a bicycle. Some of the goods stolen included items of sentimental value such as a ring belonging to the victim's grandmother, and photographs and video clips of another victim's children that were stored only on his laptop.

8. On the night after the last of the daytime burglaries, NX entered a domestic garage that had been left unlocked, and took cash and electrical items to the value of about $1,720 as well as items of sentimental value, including items relating to the wartime experiences of the victim and his family. Some days later, also overnight, a car that had been parked in the street was broken into and started; it was driven away and later abandoned in Fyshwick the next morning. DNA evidence linked NX with the damaged ignition of the car. CDs and cash to a total value of $325 were taken from the car, and the repair costs required by damage that was done to the car's ignition were $370.

9. The September 2016 offence involved NX riding in or driving a Jaguar valued at around $88,000 that had been taken from a communal basement carpark in a residential complex in Lyneham. The Jaguar was later found in a street in Red Hill.

10. In March 2016, as part of a back-capture process, police took fingerprints and a DNA sample (in the form of a buccal swab) from NX; in due course, they were matched to fingerprints and DNA samples taken from the scenes of the various burglaries and from the stolen car; coincidentally, NX was arrested in relation to those 2014 offences on 5 September 2016, which I believe was the day that the Jaguar was found. He has been in custody ever since.

11. The offences for which NX was sentenced in late 2015 to 15 months imprisonment involved a daytime robbery in which a mobile phone was stolen from the victim, who was punched several times in the course of the robbery, including to induce him to provide the password for the phone.

12. NX pleaded guilty to the 2014 charges on 31 October last year on the fourth mention in the Magistrates Court, before full briefs had been prepared by the prosecution. He pleaded guilty to the last charge on 2 February this year on its seventh mention in the Magistrates Court. Defence counsel explained this delay as resulting from a decision by Legal Aid to obtain a report on the DNA evidence relied on for that last charge, after it emerged that there had been some possible failures of testing requirements in some testing done by forensics experts in other cases, but counsel noted that this plea was also entered before preparation of a full brief.

13. As well as the statements of facts that I have already referred to, the following material is in evidence before me:

(a) a Victim Impact Statement;

(b) a criminal history;

(c) a pre-sentence report; and

(d) a CADAS report;

14. In considering the objective seriousness of the offence, I have had regard to the following matters.

15. These burglaries are, as mentioned, of a kind that is depressingly routine. The associated thefts involved property to a significant but not enormous value, except for the burglary in which the key was the only stolen item. The key obviously had a less significant value, but on the other hand, its theft almost certainly required the victim to change the locks operated by that key, which would not have been cheap. I have mentioned the amounts of some of the thefts, but the ones that I have not already mentioned involved, for the first burglary, goods to the value of roughly $6,000; for the third burglary, goods belonging to both the occupier and a tenant totalling just over $7,300; and the fourth burglary involved goods to the value of $8,700.

16. The pre-sentence report author concluded that NX's explanation of committing the burglaries and other offences to get money for drugs suggested premeditation. No doubt there are some burglaries that are genuinely premeditated in almost all respects, and there are very few burglaries committed with no forethought, for instance, simply in response to seeing an open door. However, in relation to premeditation specifically, I do not see it as productive to try to go beyond the general proposition that NX committed all these offences in order to get money for drugs.

17. The pre-sentence report author reported that NX accepted responsibility for his actions, expressed victim awareness and empathy, and understood why he was in custody.

18. A Victim Impact Statement was provided by the victim whose garage was burgled. He is a veteran of the Vietnam War, and he used the wartime memorabilia stolen from his garage as part of the tours he conducts as a volunteer at the Australian War Memorial. The items stolen and not recovered included bags used by the victim's father as a bomber pilot in World War II, a piece of metal from a German bomb that exploded near his mother while she was a volunteer air raid officer in London during World War II, and his own identity discs from his service as a helicopter pilot in Vietnam.

19. It is clear that the loss of these items has caused serious distress to the victim. It is unlikely that they will ever be recovered now, but if NX has any idea of where they might be it would do him no harm to let his lawyer or prison officers know.

20. As already noted, the 2016 offence was committed while NX was on conditional liberty subject to good behaviour orders.

21. I conclude that all of these offences sit somewhere below mid-level seriousness.

22. I have also had regard in this sentencing to NX's subjective circumstances.

23. NX is now 19 years old. He has a very long criminal history for such a young man, apparently entirely reflecting offences committed as a young offender. The 2016 offence appears to be his first as an adult.

24. Many of NX's offences were relatively minor dishonesty offences or traffic offences, but there are also three aggravated robbery offences, one burglary, one attempted burglary and one ride/drive motor vehicle without consent, as well as five damage property offences. That count includes the aggravated robbery for which I will need to resentence NX. Significantly, almost all the offences I have just mentioned were committed after most of the offences that I am now dealing with.

25. The CADAS report author describes NX's background as follows:

[NX] reported that he was born in Canberra and that his parents separated when he was 9 or 10 years old. He described his early childhood as a frightening environment where his father would "drink and become violent". He stated that he regularly witnessed violence by his father towards his mother.

[NX] said that his mother now lives in NSW, (Hunter Valley) with his younger brother. [His] father lives in Tamworth, NSW where he has his own business. He stated that he has had very little contact with his father. [He] trialled living with his father for a period of time and left due to his father's violence. [He] said that he also trialled living with his mother for a period of time as well. He reports that his mother visits him in custody.

[NX] ... left school during year 9 and started a panel beating apprenticeship in Canberra during 2013. He ... had returned to Canberra during 2012 to live with his older sister who was 19 years old. [NX] described his older sister as his most consistent and reliable support.

[NX] stated that he began "crime" to support his "drug use". He described his current goals as, "... I want to build a life away from drugs and crime ... crime was all about getting drugs ...". [NX] said that he is willing to engage in longer term counselling treatment to assist him to maintain abstinence from illicit drug use. He described his longer term goals as returning to employment and leaving Canberra - living with his mother again in the Hunter Valley area.

26. NX appears to have had no permanent place of residence after being released from custody in July 2016, and stayed with various friends and family members.

[NX] ... left school in Year 8 at the age of 13 years. He stated he enjoyed school, however he was suspended a number of times for fighting and being disrespectful to staff. He commenced a panel beating apprenticeship at the age of 15 years and completed one year before discontinuing due to his ongoing use of illicit substances.

[NX] has no history of employment in the community. Service records state during his current period of remand he has been employed in two separate positions. Feedback in his current job role states he is doing an excellent job and has a good work ethic.

28. NX told his counsel that he likes the opportunity to work because it keeps him away from the opportunities for drug use also available in the Alexander Maconochie Centre.

29. NX told the pre-sentence report author that he began using cannabis approximately one day a week at the age of 12 years, and this increased to everyday use shortly after. He first used methamphetamine when he was 15 years old and reported using it daily when not in custody.

30. The pre-sentence report author also reported that on 20 January 2017, while in custody, NX refused to provide a sample for a drug and alcohol test. As a result, he received a "Breach Discipline". A drug screening tool administered on 15 February 2017 indicated he was using drugs at a severe level and required intensive assessment and intervention.

31. As already mentioned, NX attributes all his offending, and in particular the 2014 offences, to his use of illicit drugs, and especially to his need to support an Ice addiction acquired as a teenager. Defence counsel put to me that these offences were committed "at the height of NX's Ice addiction". NX denied any Ice use while in custody, and provided explanations for the material that I have just mentioned from the pre-sentence report that is said to be inconsistent with that proposition. He says that he refused to provide a sample for a drug test because he was woken up very early in the morning to do so, and his offer to provide a sample later in the day was refused. As to the drug screening tool administered in February this year, which is said to show drug use "at a severe level [requiring] intensive assessment and intervention", he says that this is a questionnaire about a person's drug use over time, not a test of whether they are currently using drugs, and his answers reflected his long-term rather than immediate drug use.

32. As for NX's responsibility for the offences, I note that the aggravated burglary was committed in company, and it is possible that NX was in company when committing some or all of the other offences. In the absence of any further information, however, I cannot draw any other conclusion than that NX was an active participant in all of the offences, possibly the only participant in some or most of them, and must be held responsible for them.

33. NX told the pre-sentence report author that he was interested in completing residential rehabilitation, but he has rejected that option in his most recent instructions to his counsel. In discussions with the CADAS assessor, he acknowledged a need to take responsibility for addressing his substance abuse problems and indicated a willingness to accept further counselling. The CADAS assessor summarised the discussion with NX as follows:

[NX] is a 19 year old man who was polite and cooperative throughout the assessment. He presented with insight and awareness regarding the harms and dangers of his drug use. He appeared to be motivated to maintain abstinence from drug use, to improve his general health and to address reported problems and concerns. [NX] reflected an awareness of potential difficulties and triggers for his substance use and awareness of his current circumstances and difficulties.

34. NX has, through his counsel, expressed a wish not to have any part of his sentence suspended but to "put his head down and do [his] time" before being given a period of parole which can be served in New South Wales. I remind NX at this stage that even if he is not interested in residential rehabilitation when he returns to the community, he might still consider the possibility of undertaking the Solaris rehabilitation program while he is still in custody.

35. NX is to be sentenced as a "young offender" except for the 2016 offence. This imposes an unusual constraint on sentencing in this case, in that I am not able to set a non-parole period for juvenile offences, but there are other ways to address this issue.

36. In sentencing NX for the 2014 offences, that is, the juvenile offences, I must have regard to several matters additional to the normal matters relevant to sentencing, including under s 133D of the Crimes (Sentencing) Act 2005 (ACT):

(a) the young offender's culpability for the offence having regard to his or her maturity;

(b) the young offender's state of development; and

(c) the past and present family circumstances of the young offender.

37. There is no evidence before me about NX's "state of development", although defence counsel suggested that his current wish to serve his time and then leave the ACT and return to live with his mother "reflects a fairly sophisticated level of insight for somebody his age in terms of the problems that illicit substances pose for him in his life".

38. As to NX's culpability, I note that his criminal record suggests that the 2014 offences, although not his first offences in the ACT or, possibly, in New South Wales, were committed before he had been dealt with in any court for any earlier offending, and it may be that he had not yet realised the seriousness of his behaviour.

39. The fact that offences are committed under the influence of Ice or other drugs, or indeed to feed an addiction to Ice or other drugs, is not generally a mitigating factor, but NX's very early introduction to substance abuse, including Ice at the age of 15, in the context of an apparently dysfunctional childhood and early adolescence, may in accordance with the cases of Douglas v The Queen [1995] FCA 411; 56 FCR 465 and Talbot v The Queen [1992] FCA 54; 34 FCR 100 be accepted as relevant in determining his culpability for offending committed, still as a young offender, while affected by such substances.

40. I have already outlined the family circumstances of NX; at this stage, it seems that his wish to resume living with his mother, and get away from his current associates, is probably a sensible plan.

41. As well as the s 133D matters, I must under s 133C:

consider the purpose of promoting the rehabilitation of the young offender and may give more weight to that purpose than ... to any of the other sentencing purposes stated in section 7(1).

42. That provision will be significant in structuring the ultimate sentence for the current offences.

43. Both general deterrence and personal deterrence seem to be relevant in the sentencing. Furthermore, given the nature of the offences and NX's criminal history so far, I recognise that the imposition of prison sentences should be a last resort, and I propose to impose the sentences that I do consider necessary for the shortest appropriate term (s 133G).

44. In this context I note defence counsel's submission that it is important to avoid a crushing sentence, and to ensure that NX is left able to imagine a life outside the criminal justice system.

45. Also in relation to s 133G, I have considered the scope for combining a sentence of imprisonment with a supervised good behaviour order, but because NX has indicated that he does not wish to have to deal with a suspended sentence, and because I can understand his view that an extended period of good behaviour order supervision in the ACT may not actually promote his rehabilitation, I do not propose to either suspend any part of the sentence imposed for the 2014 offences or to make a good behaviour order with supervision to take effect after the sentence is served.

46. I accept that NX's pleas of guilty all came in the Magistrates Court, and I shall treat them all as early pleas.

47. NX, please stand. I record convictions on four charges of burglary, one charge of aggravated burglary, five charges of theft, two charges of taking, driving or riding in a motor vehicle without consent, and one charge of damaging property.

48. The conviction for the 2016 motor vehicle offence puts you in breach of good behaviour orders running from mid-2016 (and I have already noted that it is not absolutely clear how many good behaviour orders, but I am going to deal with all of the possibilities). Accordingly, I cancel the good behaviour orders associated with charges CH2015/173, 711 and 712 and on those, I re-sentence you as follows:

(a) for CH2015/173, which was the aggravated robbery in company, to the original 15 months that you were sentenced to;

(b) for CH2015/711, which was a minor theft, to the original one month you were sentenced to, to run concurrently with the 15 months for the aggravated robbery; and

(c) for CH2015/712, possess an offensive weapon, to the three months you were originally sentenced to, to be accumulated on top of the aggravated robbery sentence.

49. That gives a total sentence of 18 months, and that is backdated to 5 September 2015. So that takes account of the year you served before you came back into custody (for the aggravated robbery sentence). The minor theft sentence of one month is to be served starting at the same time as the aggravated robbery sentence, and the possess offensive weapon sentence is to start at the end of the aggravated robbery sentence, which was immediately after 5 December 2016. So the sentences for those three offences ran in total from 5 September 2015 to 4 March this year, and they're all finished with now.

50. Then for the new offences, the sentences in raw terms are:

(a) for each burglary, nine months imprisonment reduced from 12 months for the plea of guilty;

(b) for the aggravated burglary, 10 months imprisonment, reduced from 13 months;

(c) for all the associated thefts, except the one in which just the key was stolen, six months imprisonment, reduced from eight months; and

(d) for the theft of the key, three months imprisonment, reduced from four months;

each of those theft sentences to be served concurrently with the sentence for the burglary or aggravated burglary to which it related;

(e) for the 2014 motor vehicle offence, to six months imprisonment reduced from eight months; and

(f) for the damage property offence, which relates to the same incident, six months imprisonment reduced from eight months, to be served concurrently with the previous sentence; and

(g) for the 2016 motor vehicle offence, 11 months imprisonment reduced from 15 months.

51. Now, in order to keep a division between the 2014 sentences, which are covered by the young offender provisions, and the 2016 motor vehicle sentence, which is imposed on you as an adult and has a different set of sentencing options, I have provided for substantial concurrency among the 2014 sentences but I have then almost entirely accumulated the sentence for the 2016 offence.

52. I won't go into the dates at this stage, but the sentences that I have just explained for the burglaries, the thefts and those other juvenile offences involve the longest one, the first one, starting at nine months, and there is a total of six months accumulation. So that finishes up with a total sentence of 15 months for those 2014 offences. Because I have backdated it to run for four months concurrently with the re-imposed sentences, that sentence will run out on 4 February 2018. The adult sentence of 11 months will start on 5 January 2018, and I will set a non-parole period of one month on that sentence.

53. What that means is that on the day you've finished your juvenile sentences, you will be eligible for parole on the adult sentence. So you will be able to apply for parole in advance of that. If you get parole at that point, you will then have 10 months left as a parole period, and that, I think, is what you are hoping to transfer to New South Wales.

54. Now, I hope I have explained that sufficiently, but Ms Taylor has a table that has got all the dates and so on and she will be able to take you through it again, if necessary.

55. NX, I'm not quite sure what to say to you at this stage. You've obviously had a pretty tough time. I hope that you really do now see a way out of all of this, and that you can finish your sentences here, and then head back to what might be a slightly more supportive environment in New South Wales and set about putting your life in order. So I wish you good luck with that.

I certify that the preceding fifty-six [56] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.