R v Rosewarne [2021] ACTSC 217

Supreme Court of the ACT|2021-09-03|Before: Murrell CJ

R v Rosewarne [2021] ACTSC 217 (3 September 2021)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Sentenced to 10 years' imprisonment, with a nonparole period of four years' imprisonment.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence -trespass - burglary - theft - aggravated burglary - aggravated dangerous driving - drive or ride in motor vehicle without consent - take motor vehicle without consent - arson - drive while suspended - obtain property by deception - possess firearms without authorisation - possess offensive weapon - possess prohibited weapon - damage property - unlawful possession of stolen property - possess drug of dependence - assault frontline community service provider - obstruct territory public official - where offender is a young adult - where offender has background of severe disadvantage

Criminal Code 2002 (ACT) ss 308, 311, 312, 318, 321, 324, 326, 361, 404

Public Order (Protection of Persons and Property) Act 1971 (Cth) s 11

1. The offender pleaded guilty to 50 offences. Pursuant to Part 4.4 of the Crimes (Sentencing Act) 2005 (ACT), 26 additional offences are to be taken into account in sentencing the offender for some of the 50 offences.

2. The offences occurred in October 2019, December 2019, March 2020, April 2020, December 2020, and January 2021.

(a) Three counts of trespass, contrary to section 11 of the Public Order (Protection of Persons and Property) Act 1971 (Cth).

Each offence carries a maximum penalty of a fine of $2100.

(b) 18 counts of burglary or attempted burglary, contrary to section 311 of the Criminal Code 2002 (ACT) (Criminal Code).

Each offence carries a maximum penalty of 14 years' imprisonment and/or a fine.

Each offence carries a maximum penalty of 10 years' imprisonment, and/or a fine.

(d) Four counts of aggravated burglary, contrary to section 312 of the Criminal Code.

Each offence carries a maximum penalty of 20 years' imprisonment and/or a fine.

(e) Three counts of aggravated dangerous driving, contrary to section 7 of the Road Transport (Safety and Traffic Management) Act 1999 (ACT).

For a first offender, each offence carries a maximum penalty of three years' imprisonment and/or a fine. For a repeat offender, the maximum penalty increases to five years' imprisonment. There is also an automatic driver disqualification period of 12 months for a repeat offender.

(f) Four counts of driving or riding in a motor vehicle without consent, contrary to section 318(2) of the Criminal Code.

Each offence carries a maximum penalty of five years' imprisonment and/or a fine.

(g) Two counts of taking a motor vehicle without consent, contrary to section 318(1) of the Criminal Code.

Each offence carries a maximum penalty of five years' imprisonment and/or a fine.

(h) One count of arson, contrary to section 404 of the Criminal Code.

This offence carries a maximum penalty of 15 years' imprisonment and/or a fine.

(i) Three counts of driving while suspended, contrary to section 32(2) of the Road Transport (Driver Licensing) Act 1999 (ACT).

Each offence carries a maximum penalty of six months' imprisonment for a first offender and one year for a repeat offender, and/or a fine. There is also an automatic driver disqualification period of one month for a first offender and two months for a repeat offender.

(j) One count of attempting to obtain property by deception, contrary to section 326 of the Criminal Code.

This offence carries a maximum penalty of 10 years' imprisonment and/or a fine.

(k) One count of possessing firearms without authorisation, contrary to section 43(1)(a)(iii) of the Firearms Act 1996 (ACT).

This offence carries a maximum penalty of five years' imprisonment.

(l) One count of possessing an offensive weapon, contrary to section 381 of the Crimes Act 1900 (ACT) (Crimes Act).

This offence carries a maximum penalty of one year's imprisonment and/or a fine.

(m) One count of possessing a prohibited weapon, contrary to section 5 of the Prohibited Weapons Act 1996 (ACT) (Prohibited Weapons Act).

This offence carries a maximum penalty of five years' imprisonment and/or a fine.

(n) One count of damaging property, contrary to section 116(3) of the Crimes Act.

This offence carries a maximum penalty of two years' imprisonment and/or a fine.

(o) One count of unlawful possession of stolen property, contrary to section 324 of the Criminal Code.

This offence carries a maximum penalty of six months' imprisonment and/or a fine.

(p) One count of possessing a drug of dependence, contrary to section 169 of the Drugs of Dependence Act 1989 (ACT).

This offence carries a maximum penalty of two years' imprisonment, and/or a fine.

(q) One count of assaulting a frontline community service provider, contrary to section 26A of the Crimes Act.

This offence carries a maximum penalty of two years' imprisonment.

(r) One count of obstructing a territory public official, contrary to section 361(1) of the Criminal Code.

This offence carries a maximum penalty of two years' imprisonment and/or a fine.

(a) 14 counts of minor theft, contrary to section 321 of the Criminal Code.

Each offence carries a maximum penalty of six months' imprisonment and/or a fine.

(b) Four counts of driving while suspended, contrary to section 32(2) of the Road Transport (Driver Licensing) Act 1999 (ACT).

(c) One count of driving with a prescribed drug in oral fluid, contrary to section 20 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT).

This offence carries a maximum penalty of a fine of $1,600 for a first offender or three months' imprisonment for a repeat offender.

(d) One count of theft, contrary to section 308 of the Criminal Code.

(e) One count of using an uninsured motor vehicle, contrary to section 289(1) of the Motor Accident Injuries Act 2019 (ACT).

This offence carries a maximum penalty of a fine of $8,000.

(f) One count of using an unregistered motor vehicle, contrary to section 18(1) of the Road Transport (Vehicle Registration) Act 1999 (ACT).

This offence carries a maximum penalty of a fine of $3,200.

(g) One count of possessing the spare barrel for firearms, contrary to section 235 of the Firearms Act 1996 (ACT).

This offence carries a maximum penalty of six months' imprisonment, a fine of $8,000, or both.

(h) One count of using a numberplate not properly issued, contrary to section 22(1)(a) of the Road Transport (Vehicle Registration) Act 1999 (ACT).

This offence carries a maximum penalty of a fine $3,200.

(i) One count of trespass contrary to section 11 of the Public Order (Protection of Persons and Property) Act 1971 (Cth).

(j) One count of damaging property, contrary to section 116(3) of the Crimes Act.

5. In relation to the offences committed between October 2019 and May 2020 (Counts 1-27), pleas of not guilty were entered on 16 July 2020. Full briefs of evidence were prepared.

6. On 20 January 2021, the offender was charged with the offences committed between December 2020 and January 2021, excluding those offences committed on 10 January 2021 (Counts 28-35 and Counts 39-50). Briefs of evidence were not prepared.

7. Following extensive negotiations, on 13 May 2021, the offender entered pleas of guilty to all existing charges in the Magistrates Court.

8. On 25 August 2021, the parties became aware of the offences committed on 10 January 2021 (Counts 36-38) and the offender indicated that he would plead guilty to those charges. Briefs of evidence were not prepared.

9. In relation to Counts 1-27, the pleas were not entered at the earliest opportunity and briefs of evidence were required. The Crown cases were strong and often included DNA or fingerprint evidence implicating the offender. Nevertheless, given the number of counts, the pleas have utilitarian value. I will allow a discount of 20-25 per cent on the sentences that I would otherwise have imposed.

10. In relation to Counts 28-50, the pleas were entered at an early stage and have significant utilitarian value. I will allow a discount of approximately 25 per cent on the sentences I would otherwise have imposed.

11. The offender was in custody for one day in October 2019 and from 30 April to 3 November 2020 (188 days). He was bailed to undertake a residential rehabilitation program at Arcadia House but was discharged soon after entering the program. He re-entered the program on 30 November 2020 but was discharged for a disciplinary offence on 10 December 2020 and has been in custody since 20 January 2021.

12. Having regard to the custody periods and making a very small allowance for the largely unsuccessful period spent at Arcadia House, from 20 January 2021 the sentences will be backdated to 1 July 2020 (six months and 19 days).

13. At 9:07PM on 3 October 2019, the offender drove a Ford Fairlane vehicle on Limestone Avenue. When stopped by police, the offender said that he did not have a driver's licence. His NSW learner licence had been suspended on 7 March 2019 (Additional Offence 1 - Drive while suspended - taken into account on Count 20)

14. The offender returned a positive result for Delta-9-tetrahydrocannabinol and methylamphetamine (Additional Offence 2 - Drive with prescribed drug in oral fluid - taken into account on Count 20).

15. At 7:55AM on 28 October 2019, police received reports of a male acting suspiciously in Gowrie and Fadden.

16. At 8:00AM, police spoke with a man who had been working in Fadden. He had seen a man (the offender) in a backyard. The owner of the residence in question said that items in his storage shed had been moved around, and there had been rummaging in the garage and items had been moved. A safe had been moved from its original position. The keypad for the safe had been broken. Forensic analysis identified the offender's fingerprint on the back of the keypad (Count 1 - Burglary).

17. At 8:10AM, another Fadden resident told police that, at approximately 7:40AM, a man (the offender) had entered her house a back door. She had asked him why he was there. He had replied that he was "being chased by some guys". She had told the offender to leave, and he had run away (Count 2 - Trespass)

18. A third Fadden resident told police that, at about 9:30AM, he had heard his dog barking and had then heard someone trying to open his front security screen door. His CCTV system had captured the offender entering the backyard, holding a Vodka Cruiser, and entering a granny flat at the back of the residence (Count 3 - Burglary). The offender had removed a Vodka Cruiser from a fridge in the granny flat (Additional Offence 3 - Minor Theft - taken into account on Count 3). The offender had also rummaged in the resident's vehicle and damaged sunglasses.

19. At 9:40AM, a Gowrie resident told police that, while gardening in his backyard, he had confronted a man (the offender), who had been walking through his garden to a greenbelt at the rear of the property. Later, the resident observed that a sliding screen door to his premises had been opened (Count 4 - Trespass).

20. At 11:33AM, another Gowrie resident told police that he had observed a man (the offender) rummaging through his unlocked vehicle as it was parked in the driveway. When he had asked the offender what he was doing, the offender had replied that "his money was in the car and he was going to get it". The offender attempted to enter the resident's house by using a garage door remote device that had been located inside the vehicle. The resident called the police and the offender departed with the garage door remote device and a pouch containing approximately $30 that had been taken from the resident's vehicle (Count 5 - Theft) (Additional Offence 4 - Trespass - taken into account on Count 5)

21. Police conducted patrols of greenbelts in the area. At approximately 11:30AM, they saw the offender dismount from a mountain bike and jump a fence into a nearby backyard. They searched the backyard and found the offender hiding under a table (Count 6 - Trespass).

22. At 2:35PM on 18 December 2019, at the Canberra Centre, police observed the offender and another man each put a bottle of perfume down the front of their pants while leaving the Myer Store. Each 100ml bottle of perfume had a retail price of $142 (Additional Offence 5 - Minor Theft - taken into account on Count 1).

23. On 3 March 2020, the offender exchanged vehicles with a Lyneham resident, thereby acquiring a Holden Commodore vehicle. The offender affixed Queensland registration plates to the vehicle before driving away.

24. At 4:50AM on 7 March 2020, the offender drove the vehicle to the Denman Prospect shops. A different set of stolen ACT registration plates was affixed to the vehicle. The offender parked outside the Dominos Pizza store. He was wearing a tracksuit, puffer jacket and balaclava, and he donned gloves. He removed a metal bar from the boot of the vehicle. The offender forced the door to the Dominos store using the metal bar, and caused damage to the door that cost $1486.67 to repair. He entered the store (Count 7 - Burglary). At about 4:52AM, he left the store carrying a coin till tray that contained approximately $50 (Additional Offence 6 - Minor Theft - taken into account on Count 7).

25. At 5:10AM, the offender attended the Western Creek Post Office in the Holden Commodore. He was wearing the same clothes. He smashed the lower glass panel of a rear office door to gain entry to the premises. He searched through the post office but left without taking anything. (Count 8 - Burglary).

26. At 5:14AM, the offender drove to the Mawson Club in the Holden Commodore. He was still wearing the same clothes. He climbed a side fence and, using a metal bar, forced a door and gained entry to the premises (Count 9 - Burglary). He searched the reception and bar areas and removed a charity donation tin and three empty cash tills from the Club. He placed these items in the Holden Commodore before returning inside (Additional Offence 7 - Minor Theft - taken into account on Count 9). At 5:35AM, the offender was disturbed by cleaners, who had arrived at the Club to start work. The cleaners called police. The offender left the premises, walked back to his vehicle, and drove away. Removing the cash tills from the point-of-sale computers caused $22,197 worth of damage. Damage to the door cost $100 to repair (Additional Offence 8 - Damage Property - taken into account on Count 9).

27. At 10:00AM, the offender attended the Nike store at the Canberra Outlet Centre wearing a red pair of Nike sneakers. Approximately 45 minutes later, he left the store after purchasing a jumper and pants. He was also wearing a new green pair of the same model of Nike sneakers that he had worn into the store and for which he had not paid. (Additional Offence 9 - Minor Theft - taken into account on Count 8).

28. At 1:56AM on 8 March 2020, the offender and an unidentified person drove the Holden Commodore to the Casey Jones Pub, Casey. The offender was wearing a black hat, black face covering, black jacket, black track suit pants and black gloves. He used a metal bar to force open a side glass door and gain access to the premises. The unidentified man propped the door open with a chair and both went inside (Count 10 - Aggravated Burglary). They began to search the restaurant and bar areas. The offender unsuccessfully attempted to pry open two cash drawers. The offender and his companion left, carrying cash tills. The offender was also carrying a charity donation bin (Additional Offence 10 - Minor Theft - taken into account on Count 10). At 2:00AM, both men departed in the Holden Commodore.

29. At 2:17AM, the offender attended the Dominos Pizza store at Casey, wearing the same clothes and carrying the same metal bar. He ran to the front door and made repeated but unsuccessful attempts to force it open. He then struck the glass panel. It shattered and he entered the store, followed by the unidentified co-offender (Count 11 - Aggravated Burglary). The offender began to search behind the counter. He located a closed cash drawer and forced it open using the metal bar. He removed the coin tray, which contained approximately $50 (Additional Offence 11 - Minor Theft - taken into account in respect of Count 11). The offender and co-offender left. The cost of repairing the damage to the store was $1487.

30. A short time later, the offender attended the Gungahlin Post Office in the Holden Commodore. He used the metal bar to strike a glass door many times and unsuccessfully attempted to pry the door open. He then kicked the damaged glass from the door frame, and entered the premises, followed by the unidentified co-offender (Count 12 - Aggravated burglary). The men began to search the post office. Using the metal bar, the offender forced open a glass display cabinet, from which he and the co-offender removed mobile telephones (Additional Offence 12 - Minor theft - taken into account on Count 12). The co-offender took a note counting machine and gift cards, which he scanned using a barcode scanner at the front counter. He carried parcels from a rear storeroom to the vehicle while the offender continued to search the rear counter area. At 2:31AM, as a police mobile patrol drove towards the Holden Commodore, the offender and co-offender ran to their vehicle and drove away.

31. At 2:49AM, police attended an address in Dickson to investigate a reported collision. They found that the offender's Holden Commodore had been abandoned after it had collided with a pallet of wood on the footpath. Police seized the vehicle.

32. Later, the offender's fingerprints and DNA were located in the driver's area of the vehicle. Inside the vehicle, police located the correct ACT registration plates for the vehicle, the receipt for the transaction at the Nike store, a black balaclava, the cash till and charity donation tin that had been taken from the Casey Jones Pub, the coin till tray that had been taken from the Dominos store at Casey and the note counting machine, mobile phones, gift cards and parcels that had been taken from the Gungahlin Post Office. They also found the vehicle registration document that evidenced transfer of the vehicle to the offender on 3 March 2020.

33. At 9:45AM, at the Jerrabomberra Oval in Narrabundah, police located the three cash tills and charity donation tin that had been removed from the Mawson Club, and the gloves and puffer jacket that the offender had worn on the morning of 7 March 2020.

34. At 1:53AM on 13 March 2020, the offender attended the Hawker Post Office wearing plastic bags over his shoes, black gloves, black pants, a hooded jumped and a face covering. He was carrying a sledgehammer. He approached the glass entry door and struck the bottom section of the glass panel repeatedly with the sledgehammer, knocking the glass panel out of the frame. He climbed through the door (Count 13 - Burglary). He began to search behind the counter and located a safe. He used the sledgehammer to strike the safe but was unable to dislodge it. He searched the rear storeroom. He removed two boxes containing parcels and carried them from the store. (Additional Offence 13 - Minor Theft - taken into account on Count 13).

35. At 1:58AM, the offender drove a Ford Laser vehicle to Macquarie. He reversed the vehicle onto a footpath. As noted above, his learner licence had been suspended on 11 March 2020 (Additional Offence 14 - Drive while suspended - taken into account in respect of Count 13).

36. At 2:05AM, the offender approached Canberra Nails and Spa, a beauty salon. He was wearing the same clothes and carrying the sledgehammer. He repeatedly struck the lower section of a glass panel in the front door with the sledgehammer, creating a hole through which he climbed to gain entry to the premises (Count 14 - Burglary). He searched the front counter area before walking to the back storeroom and searching through cupboards and drawers. He located approximately $100 and left the salon (Additional offence 15 - Minor theft - taken into account on Count 14).

37. At about the same time, the offender went to Jamison Newsagency. Again, he used the sledgehammer to strike the lower section of a glass panel in the front door, creating a hole through which he climbed to gain entry to the premises (Count 15 - Burglary). He searched behind the counter but left with nothing.

38. At 11:46AM, police observed the offender driving a Ford Laser bearing stolen Queensland registration plates driving north on Cowper Street. There was a passenger in the front seat. Police followed the vehicle.

39. In Lyneham, the vehicle accelerated heavily in a 40km/h school zone. Police activated their emergency sirens and attempted to conduct a traffic stop. However, the offender's vehicle crossed to the incorrect side of the road and drove past several vehicles before returning to the correct side of the road, having narrowly missed a vehicle travelling in the opposite direction. Police deactivated their emergency sirens. The Ford Laser continued to drive south at approximately 100km/h, and police lost sight of it. There were pedestrians in the area. At 11:55AM, the vehicle was sighted in O'Connor. Police followed it. The vehicle accelerated heavily, reaching 100km/h in a marked 50km/h zone. It crossed onto the wrong side of the road before passing through an intersection. Police lost sight of the vehicle (Count 16 - Aggravated dangerous driving)

40. Later, police located the Ford Laser vehicle in Macquarie. It bore the correct ACT registration plates. The vehicle belonged to an associate of the offender. Police seized the vehicle and undertook forensic analyses. Fingerprints of the driver's side door and front registration plate matched those of the offender. The offender's DNA was in the driver area. The sledgehammer that had been used by the offender was in the vehicle.

41. The vehicle had been unregistered and uninsured since 11 October 2019 (Additional offences 16 and 17 - Drive uninsured motor vehicle; use unregistered motor vehicle - taken into account on Count 16). At the time that he was driving, the offender's licence was suspended (Additional offence 18 - Drive while suspended - taken into account on Count 16).

42. On 19 April 2020, police received a report that a Subaru Outback vehicle had been stolen from an address in Turner.

43. At 7:26AM on 23 April 2020, police attended a grassland area in Yarralumla to investigate a report of a person slumped against the steering wheel of a Subaru Outback. On arrival, they discovered that it was the stolen vehicle. It was parked on grassland about 60 metres from the road. The offender was asleep in the driver's seat.

44. When police awoke him, he reached towards the ignition. Although he was directed to stop, he started the vehicle and accelerated heavily. The police had to jump backwards to avoid being struck. The vehicle drove away at speed.

45. At 7:32AM, the vehicle was located in the city, stationary behind another vehicle at a red light at the intersection of Northbourne Avenue and Barry Drive. When police activated their emergency lights and exited their vehicle, the offender drove onto a footpath, around stationary cars, and then proceeded at speed towards O'Connor. Police lost sight of the vehicle. A speed camera at the intersection of Barry Drive and Marcus Clarke Street detected the vehicle travelling at 81km/h in a 60km/h zone on the wrong side of the road. In Turner, a member of the public directed police to a grassland area behind Bagot Street in O'Connor, where they saw tyre marks but did not locate the vehicle (Counts 17 and 18 - Aggravated dangerous driving; drive motor vehicle without consent).

46. The offender drove the vehicle to the entrance to the underground carpark of a residential complex in O'Connor. He exited the vehicle and set it alight. He hid in the garden of a neighbouring property and watched the fire before running away. When police approached the area at about 7:50AM, they saw a large plume of smoke. The Subaru Outback was engulfed in flames, and the flames extended to a courtyard fence located above the carpark entrance (Count 19 - Arson).

47. The complex was evacuated. The ACT Fire Brigade attended and extinguished the fire. The vehicle, car park entry façade and fittings were destroyed.

48. The offender's DNA was found on a jumper that had been abandoned nearby.

49. The offender's licence had been suspended (Count 20 - Drive while suspended).

50. Firearms were stolen from a vehicle parked in Farrer.

51. At 6:09AM on 26 April 2020, the offender drove a Subaru WRX vehicle to an address in Curtin. A friend of the offender, Bryant Abney (a pseudonym) was in the front passenger seat.

52. The offender parked in the driveway and met with one of the residents. The offender then entered the driver's seat, removed a blond wig from the glove box, and put it on. The resident entered the front passenger seat and the offender drove away.

53. At 7:10AM, the offender drove the Subaru WRX back to the address in Curtin. The resident exited the vehicle and opened the boot. There were two firearms in the boot, a Winchester shot gun and Lithgow 1.22 rifle. The offender put on a black pair of gloves. The resident used a blue blanket to wrap the firearms and carry them into the garage of the premises, which had been converted into an additional living area. The offender collected a spare barrel for the Winchester shot gun and then followed the resident into the garage (Count 21 - Possess firearm without authorisation) (Additional offence 19 - Possess firearm without authorisation - taken into account on Count 21).

54. Later that morning, the resident took the Lithgow 1.22 rifle into the backyard, where he cut off the barrel and stock.

55. At 12:15PM on 28 April 2020, the offender attended the residence in Curtin. He went to the garage.

56. At 2:18PM, the offender approached a different residence in Curtin, that was a short walk away from the first residence. He entered the residence and stole a spare set of keys for a Volkswagen Polo that was parked in the driveway (Count 22 - Burglary).

57. At 2:24PM, he drove the Volkswagen Polo out of the driveway and into the street. (Count 23 - Take motor vehicle without consent).

58. On 29 April 2020, at 6:15AM and 7:00AM, two Curtin residents discovered that their parked vehicles had been searched and their wallets and cards removed.

59. At approximately 7:00AM, the offender drove the Volkswagen Polo to the Caltex Weston service station. Stolen registration plates were affixed to the vehicle (Additional offence 20 - Drive while suspended - taken into account on Count 27).

60. The offender entered the service station, approached the counter, and asked for two packets of cigarettes. He was holding two credit cards. The sales attendant inspected the cards and noticed that they were in different names. The offender stated that "one of them is my card and the other is my friend's." He purchased a packet of cigarettes using the payWave feature of a Westpac card. He attempted to pay for a second packet of cigarettes using the second card, but the transaction was declined twice. The store manager asked for both cards. She observed that they appeared to be stolen. He replied, "No these are my cards, I paid for that". The store manager called the police, and the offender left the premises, driving away in the stolen vehicle (Count 24 - Attempt to obtain property by deception).

61. During the afternoon, the offender was at a residence in Wanniassa, with a group of people. The offender was in possession of a Browning pump action .22 rifle, which was one of the firearms that had been stolen from Farrer. He accidentally discharged the firearm. A round struck him on the rear of his lower left thigh and exited diagonally, a few centimetres lower. Later, police recovered the Browning pump action .22 rifle from the residence.

62. At 6:01PM, the offender asked a friend, Mr Gates (a pseudonym), to collect him from Wanniassa as he had shot himself. Mr Gates drove the offender to a unit in O'Connor, where Ms Pound (a pseudonym), one of the residents, rendered first aid to the offender. The offender stated that he had shot himself.

63. At 8:00PM, Mr Gates drove the offender to an address in Ngunnawal, where the offender spent a short time before Mr Gates drove him back to the residence in Wanniassa. The offender entered the property and later left carrying a sports bag.

64. Mr Gates drove back to the unit in O'Connor. The offender followed in the Volkswagen Polo.

65. The offender entered the O'Connor unit with the sports bag. He removed what appeared to be a firearm. It was described as having an approximately 30cm wooden stock and a silver barrel that had been "sawn off". The offender said that it was not loaded. The offender told Ms Pound that he had cut the barrel off and that it was not loaded. The offender called Ms Pound's son and pointed the firearm at him. He ran away but the offender told him to come back. The offender again pointed the firearm at him, making him fearful (Count 25 - Possess offensive weapon with intent).

66. Later, the offender changed into dark clothing, put on gloves, and covered his face with a scarf.

67. He left the unit and drove to a residence in Aranda. He entered and searched the studio living area in the rear yard, emptying the content of shelves and cupboards onto the floor (Count 26 - Burglary). He removed personal papers belonging to the occupant (Additional offence 21 - Theft - taken into account on Count 26).

68. The offender returned to the unit in O'Connor.

69. At 4:30AM on 30 April 2020, a physical fight broke out between Mr Gates and the offender. Mr Gates and his partner left the unit and informed police that the offender was at the unit and was in possession of a firearm.

70. Police attended the area and observed the offender driving the stolen Volkswagen Polo, bearing stolen registration plates, away from the unit. He drove across a greenbelt, along a street and was last sighted travelling on the wrong side of the road on Belconnen Way (Count 27 - Drive motor vehicle without consent, covering all driving from 26 to 29 April).

71. At 4:50PM, the offender attended a residence in Curtin and was arrested, searched and conveyed to the Canberra Hospital for treatment of the gunshot wound.

72. In the garage of the Curtin unit, police located Volkswagen car keys, and clothes that the offender had been wearing on the morning of 29 April 2020. They also found the Winchester shot gun and the spare barrel. The offender's DNA was on the butt stock and trigger areas of the firearm. The Volkswagen Polo, now bearing stolen Western Australian registration number plates, was parked on the street a short distance away. The Volkswagen branded car keys operated the Volkswagen Polo.

73. Later, police found a ring that had been stolen during the burglary of the Aranda residence.

74. Police located the sawn-off barrel and part of a wooden stock, suspected to have originated from the Lithgow 1.22 rifle.

75. Between 7:00PM on 28 December 2020 and 7:00AM on 29 December 2020, a Toyota Hilux was stolen from O'Malley.

76. Between 3:00PM on 29 December 2020 and 11:30AM on 30 December 2020, two ACT registration plates were stolen from a vehicle in Aranda.

77. At 8:00PM on Tuesday 29 December 2020, in Richardson, the offender drove the stolen Toyota Hilux, performing a "burnout" before proceeding through a red light (Commencement of Count 29 - Drive motor vehicle without consent).

78. When police activated their emergency lights and sirens, the vehicle accelerated, turned left, crossed to the incorrect side of the road and begin to travel towards Isabella Plains. Police deactivated their emergency lights and sirens and ceased the pursuit.

79. The Toyota Hilux was seen travelling towards on-coming traffic on Isabella Drive, before swerving back on to the correct side of the road to avoid a head on collision.

80. Later, the vehicle was seen driving within the speed limit but, when the offender observed the police, he executed a U-turn, and drove across the front yard of a residence before returning to the road. The offender looked back at police, before accelerating away (Count 28 - Aggravated dangerous driving).

81. At 10:32PM on 30 December 2020, police saw the Toyota Hilux. It was bearing different ACT registration plates, being those that had been stolen from the vehicle in Aranda (Additional offence 22 - Use numberplates not properly issued - taken into account on Count 29).

82. When police approached the Toyota Hilux, they saw that the offender was driving the vehicle and there was a male in the front passenger seat.

83. Police activated their emergency lights and sirens. The offender drove around the police, failing to stop. Police lost sight of the vehicle.

84. The offender's driver's licence had been suspended (Count 30 - Drive while suspended)

85. At 4:44AM on 6 January 2021, the offender attempted to access a Toyota Camry that was parked in the driveway of a Bonython residence. The front driver window of the vehicle was smashed, and the framing was bent (Count 33 - Damage Property).

86. At 4:56AM, the offender tried without success to access the front door of the residence. At 5:05AM, he succeeded in gaining entry through the door (Count 31 - Burglary).

87. After a short period, he left the residence with a car key, and unlocked the Toyota Camry. He took a coin dispenser containing approximately $50 (Additional offence 23 - Minor Theft - taken into account on Count 33).

88. At 5:07AM, the offender opened the garage door of the residence using a remote device. He entered the garage. Having removed the car keys from a hook in the garage, he drove away in the Toyota Yaris that was parked inside. (Count 32 - Take motor vehicle without consent).

89. At 12:58AM on 7 January 2021, a red Holden Commodore was stolen from Chisholm.

90. At 5:30AM on 8 January 2021, the Holden Commodore was parked behind Palmerston shops. The offender exited the front passenger door and approached a Jeep Cherokee (Count 34 - Ride in motor vehicle without consent). He removed a black jacket, a pair of sunglasses, a smart watch and a Raymarine Fishfinder from the vehicle before walking away (Count 35 - Theft). Later, the owner found a small dent in the exterior panel of the front driver's side door of the vehicle.

91. The owner of the Jeep Cherokee, who had observed events from inside the Palmerston IGA, confronted the offender. The offender returned to the Holden Commodore, and drove away over a greenbelt.

92. At 8:15AM on 10 January 2021, a Melba resident returned to his premises and noticed that the garage door and front door were open. There was a large brown bag at the front door, which seemed to be full of clothes. He contacted a friend and asked him to attend.

93. The owner and his friend entered the house. The friend was carrying a shovel. In the kitchen, they saw that drawers had been opened and the contents tipped onto the floor. When they entered the hallway, they saw the offender. He was wearing black gloves and a black cap. He was carrying a black backpack over his right shoulder.

94. The offender brandished a meat cleaver in his hand and yelled aggressively at the two men, telling them to back off. The owner and his friend ran outside and called the police. (Count 36 - Aggravated Burglary).

95. At 8:45AM, another Melba resident heard the back sliding door open very slowly. He saw the offender rummaging on his sideboard. He asked the offender, "What are you looking for?". The offender responded, "I'm just looking for my keys". When the resident walked towards him, the offender ran to the lounge room. The resident followed, prompting the offender returned to the sideboard and continued to rummage through it. The offender picked up a set of keys and said, 'there they are.' Knowing that the keys belonged to a trailer, the resident remarked, 'you can't drive a trailer'.

96. The resident called out for his son to come to his assistance. He approached the offender and demanded that the offender say what he had stolen. The offender ran downstairs. The resident followed. At the bottom of the stairs, the resident grabbed the offender by the shirt and pushed him against a wall. The offender said, "on my mother's life I didn't take anything". The offender broke the resident's grip, ran into the toilet and closed the door.

97. The resident's son arrived. The resident and his son heard the sound of glass smashing in the toilet. They opened the door and saw that the offender had smashed the glass in the window and escaped through the window. (Count 37 - Burglary).

98. The Court received a victim impact statement from the resident. He and his family have become hypervigilant about their safety. Inevitably, they feel strongly that the offender violated their right to feel secure in their own home.

99. At 8:55AM, another Melba resident was in her kitchen when she saw the offender standing outside the back screen door of her house. She locked the screen door and enquired what he was doing. He replied, "I live near here". She asked him how he had entered her backyard. He said that he had jumped the fence. The offender's right hand appeared to be bleeding. She asked whether the offender needed help. The offender ran away, jumping over a fence into the adjoining yard.

100. Later, the resident discovered a set of keys near where the offender had jumped the fence. They were the trailer keys that had been taken during the earlier burglary.

101. Police searched for the offender in the area. They observed that the front door to a residence was ajar and there were blood drops on the front balcony. Inside, they saw more blood. However, they did not locate the offender at the residence. A short time later, the occupant of the residence returned. When he had left the residence, the doors had been locked. Forensic analysis of the blood provided a match with the offender's DNA. (Count 38 - Burglary).

102. At 9:00PM on 11 January 2021, a resident of Hall turned off the light in his detached garage. He secured the door and returned to the main residence. Soon afterwards, he noticed that the light in the garage was on. He approached the garage and found that the main garage door was open. He could hear an alarm emanating from a nearby vehicle.

103. When he entered the garage, he saw the offender. He was holding an item similar to an axe or tomahawk in his hand. The offender said to the resident, "there's someone else in here. Don't hassle me, man". Fearing that he may have to defend himself, the resident grabbed a wooden shovel. The offender ran past the resident, out of the garage and down a nearby laneway, before entering a vehicle and driving away at speed. The offender had opened drawers and cabinets in the garage and disturbed the contents (Count 39 - Burglary).

104. On the same day, the door to the studio of a different Hall residence was forced open, damaging the door and sliding bolts. Drawers and cupboards in the studio and garage were opened and the contents were scattered about. A cordless drill and a block splitter were stolen and $40 was removed from a vehicle in the garage (Additional offence 24 - Minor Theft - taken into account on Count 40). The intruder had attempted to open the window to a rear room and a laundry. The offender was identified from a fingerprint lifted from the exterior surface of the studio access door (Count 40 - Burglary).

105. At 10:00PM, police located a filing box and leather bag in a street in Hall. A nearby resident identified the objects as her property. It had been stored in her garage (Additional Offence 25 - Minor Theft - taken into account on Count 41). Further inquiries revealed that, at 7:41PM, the offender had entered the garage through a partly open door. After a short period, the offender had exited the garage carrying a black bag (Count 41 - Burglary).

106. At 12:37AM on 16 January 2021, the offender walked along the pathway of a Gordon residence that connected the entry to the residence with the driveway. At 1:05AM, carrying something under his left arm, the offender approached the front door and unsuccessfully attempted to gain access. The rear sliding door to residence had been opened, but the fly screen remained locked (Count 42 - Burglary).

107. During the night, the offender opened the rear garage roller door and chocked it open with a piece of wood. He searched drawers inside the garage. He removed a pack of Vodka Cruisers from the fridge in the garage and took a pair of scissors that was later found in a neighbour's hedge (Additional Offence 26 - Minor Theft - taken into account on Count 42).

108. At 1:30 AM, a neighbour woke up when a sensor light at the side of his residence became illuminated. The following morning, he observed a small cut to his rear security screen door, permitting access to the locking latch. However, the inner door behind the security screen remained locked (Count 43 - Attempt Burglary).

109. At 11:51PM, the offender, who was wearing a hooded jumper and gloves, pulled on the door handles of a vehicle parked at a Deakin residence. The next morning, the resident found his garage door open, although nothing seemed to be missing.

110. At midnight on 20 January 2021, a Crace resident parked his Honda Accord vehicle in the street and secured it. At 7:30AM, he returned to the vehicle to find that the front passenger window had been smashed and his wallet, containing various bank cards, was missing. A neighbour had heard a loud bang at about 2:30 AM that morning.

111. At 10:30 PM on 19 January 2021, a Deakin resident parked his white Volkswagen Passat, locked it, and put the keys on a table near the front door. The offender opened a window next to the front door and removed the keys (Count 48 - Theft). The rear door was also opened.

112. At 5:16AM, police attended the intersection of Mouat Street and Northbourne Avenue in Lyneham, following reports of an unconscious male behind the wheel of a vehicle. They found the offender asleep behind the wheel of the white Volkswagen Passat. His licence was suspended (Count 44 - Drive while suspended).

113. They opened the driver's door, waking the offender. There was a large hammer and a large knife on the front passenger seat. Upon waking, the offender yelled at police and tried to place the vehicle into gear and drive it towards a parked police vehicle.

114. Police tried to remove the offender from the vehicle but were strongly resisted. The offender kicked at police. He defied numerous clear directives to exit the vehicle (Count 45 - Obstruct territory public official).

115. On several occasions, the offender kicked at a constable who was situated in the front passenger seat. The kicks connected with the constable's fingers and hand, causing pain (Count 46 - Assault frontline community service provider).

116. Eventually, police managed to remove the offender from the vehicle and apply handcuffs.

117. Inside the Volkswagen Passat, police located items that had been stolen, including the wallet that had been taken from the Crace resident in the early hours and a gun safe containing documents that had been stolen from the garage of the Deakin resident the previous night (Count 47 - Unlawful possession of stolen property). In addition, there were two hammers, a mobile telephone, a sander, a Stanley box containing assorted tools, a large knife, and other items.

118. During the custody intake process at the ACT Watch House, police found a small black 928 taser and a small clip-seal bag containing 0.9 grams of methylamphetamine (Count 49 - Possess drug of dependence). The taser is a prohibited weapon under the Prohibited Weapons Act and the offender did not hold a permit to possess it (Count 50 - Possess prohibited weapon).

119. Factors informing the objective seriousness of the offences of aggravated burglary and burglary include:

(a) Whether the offence was committed at commercial or residential premises (where the occupants are likely to feel a greater sense of violation) and, if at residential premises, whether it was the main premises or an associated building (such as a garage) that was entered.

(b) Whether the premises were occupied or were likely to be occupied at the time of the entry.

(c) Whether the victim was vulnerable; for example, if the main residence was entered, whether the victim at home alone and asleep.

(d) The means of entry; for example, whether it was forced entry or entry via a partly open door.

(e) The degree to which there was associated destruction or disarray.

(f) Whether there was an interaction with an occupant and, if so, whether the occupant was directly threatened and the nature and duration of any force or threat (including whether it was gratuitous).

(g) For aggravated burglary (committed in company) - whether the offender was in the company of more than one other person, the role played by the offender, and whether there was an additional aggravating feature of having an offensive weapon.

(h) The degree of planning, which may be able to be deduced from whether the offender was disguised and/or had armed himself with an offensive weapon or implement for the purpose of gaining entry.

120. Considerations relevant to the objective seriousness of the offences of theft and damage property include:

(a) The motive for the damage or theft; for example, whether damage was malicious or occurred to facilitate a burglary.

(b) The extent or value of the damage or the property taken.

121. As to the offence of arson, relevant features include:

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (340 paragraphs)

R v Rosewarne [2021] ACTSC 217 (3 September 2021)

R v Rosewarne [2021] ACTSC 217 (3 September 2021)

Parties

Legislation Cited (10)

Cited By (8)