R v Sampson [2018] ACTSC 59

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - aggravated burglary - damage property - theft - making off without payment - obtaining property by deception - guilty plea - extensive criminal history of similar charges - specific deterrence - general deterrence - totality of sentences - custodial sentence

Criminal Code 2002 (ACT), ss 308, 312, 322A(1), 326, 403

R v Sampson [2014] ACTSC 210

R v Sampson [2017] ACTSC 349

Sampson v De Hann [2016] ACTSC 327

1. Ricky Lee Sampson has pleaded guilty to eight offences. They may be summarised as follows:

(a) 2 January 2016: aggravated burglary contrary to s 312 of the Criminal Code 2002 (ACT) (maximum penalty 20 years imprisonment and/or $300,000 fine);

(b) 2 January 2016: damage property contrary to s 403 of the Criminal Code (maximum penalty 10 years imprisonment and/or fine of $150,000);

(c) 2 January 2016: theft contrary to s 308 of the Criminal Code (maximum penalty of 10 years imprisonment and/or a fine of $150,000);

(d) 3 January 2016: making off without payment contrary to s 322A(1) of the Criminal Code (maximum penalty two years and/or fine of $30,000); and

(e) 5 January 2016: obtain property by deception contrary to s 326 of the Criminal Code (four counts) (maximum penalty 10 years imprisonment and/or a fine of $150,000).

2. In the early hours of 2 January 2016, the offender and an unknown male damaged the front door and glass cabinets inside a business known as Burson Automotive at Wollongong Street in Fyshwick. They stole $3294.65 worth of tools. The damage to the front door and cabinets cost $5527.50 to repair.

3. There was some reconnaissance of the premises in advance of the actual burglary. The break-in involved using a sledgehammer to smash a glass panel on the front door. The sledgehammer was used to smash display cabinets full of tools. The whole incident took less than five minutes.

4. At about 6:50am on 3 January 2016, the offender drove off without paying for $46.69 worth of petrol from the Coles Express service station at Wanniassa. He had initially attempted to pay with an eftpos pay pass but this transaction was declined. He returned to the car and drove off without paying.

5. Between 6:20am and 6:30am on 5 January 2016, the offender used a stolen credit card to perform five transactions to the total value of $478.89. The card had been stolen shortly before from a vehicle parked at a shopping centre in Jerrabomberra. The charges were as follows:

(a) charge CC2016/8196: cigarettes and Optus mobile phone vouchers totalling $96;

(b) charge CC2016/8197: cigarettes worth $87.90;

(c) charge CC2016/8198: two transactions, mobile phone vouchers worth $100 and an android tablet computer with $99; and

(d) charge CC2016/8200; cigarettes mobile phone vouchers totalling $95.99.

6. In relation to the offences, the offender could be identified by reference to a combination of closed circuit television (CCTV) footage, the clothing he was wearing, the car that he was driving and items found in his possession.

7. At the time of the offences, the offender was on parole as a result of the sentence imposed by Penfold J: R v Sampson [2014] ACTSC 210.

8. The burglary was of a commercial rather than residential premises. It was statutorily aggravated by being in company. It involved a degree of planning as the premises had been reconnoitred about an hour before the burglary took place. The aggravating features of the burglary are that it involved damage to the property and the theft of a significant amount of material, but those features are addressed by the separate charges for those matters. I assess the burglary as being in the low to mid-range of objective seriousness.

9. The property damage charge relates to the smashing of the glass door and the tool cabinets during the burglary. The damage occurred as part of a premeditated burglary. The extent of property damage caused was substantial; the repair costs being $5527.50. Having regard to the value of the property damaged, I assess it as being in the mid-range of objective seriousness for this offence.

10. The theft of property was of property worth $3294.65. Having regard to the range of offences that might be covered by the charge of theft, I would assess this as being in the low to mid-range of objective seriousness for this offence.

11. The charge of making off without payment is, having regard to the amount which ought to have been paid, in the low-range of objective seriousness for this offence.

12. Each of the charges of obtaining property by deception are unremarkable examples of this type of offence, being tap and pay transactions close to, or on, the $100 limit for transactions that can be made without the use of a pin number.

13. The subjective circumstances of the offender are largely derived from a Pre-Sentence Report and Court Alcohol and Drug Assessment Service Report. The offender is an Aboriginal man of 36 years of age. [Redacted for legal reasons].

14. He experienced family violence and alcohol abuse within the family home as a child. He reported being sexually abused at the hands of an extended family member. I take into account this dysfunctional background. It certainly appears to have influenced his early entry into criminal behaviour and tragically early commencement of use of illicit drugs.

15. Whilst in custody he has had contact with a support group for survivors of sexual assault. He has found this very helpful. He has one child who resides in Perth and lost a son four years ago as a result of a stillbirth. He has never held employment in the community. This has been because of his addiction to illicit substances from a young age and the custodial sentences which he has served. He commenced using illicit substances at the age of 13 years. He started with injecting heroin. He ceased using heroin in 2009. At that time he was introduced to methamphetamine. He has continued to use methamphetamine since then while in the community.

16. While in custody he has twice completed the Solaris program, a drug rehabilitation program available within the Alexander Maconochie Centre. The second time he completed the program as a group mentor and was of significant assistance to the program facilitators.

17. There is a reference to him having been diagnosed with a personality disorder in 2001.

18. He has attempted to take his own life on two occasions whilst in custody at the Alexander Maconochie Centre, once in 2010 and once in 2013.

19. He recognised that his offending behaviour was driven by his need to fund illicit substance use. He is assessed as being at a medium risk of general reoffending. His criminogenic risks relate to lack of employment, illicit substance use and mental health.

20. The offender has an extensive criminal history. It was accurately described as "a very serious and long history" by Refshauge J (Sampson v De Haan [2016] ACTSC 327 at [79]). In the ACT, his criminal history includes multiple convictions for burglary, multiple convictions for theft, multiple convictions for obtaining property by deception, multiple convictions for receiving stolen property and multiple convictions for riding in or driving a motor vehicle without consent. It also includes a conviction for aggravated robbery. He has a similarly bad criminal history in New South Wales. He has spent lengthy periods in full-time detention. His criminal history means that there is little room for leniency.

21. Between 18 September 2016 and 4 April 2017 there were multiple appearances in the ACT Magistrates Court in relation to the charges. Pleas of not guilty were entered on

20 October 2016. However, following a change of solicitor, a plea of guilty was entered to all charges and the offender was committed for sentence. The resolution of the matters was delayed by one matter which went to trial and was heard in November 2017. That led to the acquittal of the offender on that charge: R v Sampson [2017] ACTSC 349.

22. The offender was arrested on 8 January 2016. He has been bail refused since that time. However, as a result of sentences imposed by the Magistrates Court and, on appeal, by the Supreme Court, none of the period in custody since that time has been solely attributable to these offences. The decisions of the Supreme Court in relation to which the offender is or has been serving sentences are those of Penfold J (R v Sampson [2014] ACTSC 210) and Refshauge J (Sampson v De Haan).

23. The offences are, in the scheme of criminality, unremarkable ones to be engaged in by a drug addicted offender. They unfortunately represent the continuation of a pattern of behaviour of the offender largely driven by his ongoing illicit drug use. The numerous custodial penalties imposed in the past have not been sufficient to deter the offender from serious criminal conduct.

24. I will allow a discount of 25 per cent for the pleas of guilty entered in the Magistrates Court. The pleas have considerable utilitarian value and the delays in their entry were contributed to by the differing legal advice that the offender received and the hearing of a contested charge in R v Sampson [2017] ACTSC 349.

25. It is necessary to have regard to the offender's disadvantaged background, in particular the effect that sexual abuse as a child may have had in leading him into illicit drug use. His long history of offending seems to indicate that specific deterrence and protection of the community remain significant sentencing considerations. His completion of the Solaris program while in custody and his role as a mentor when he completed that the second time around are positive signs for the potential for rehabilitation. Notwithstanding his dreadful criminal history, there is at least some hope that age, and a further period in custody followed by a lengthy period subject to supervision on parole, will lead him to change his behaviour when released into the community.

26. Having regard to the long history of illicit drug use, the prospect of the offender entering into some form of residential rehabilitation upon release on parole needs to be taken into account. Because of his long periods of incarceration, illicit drug use and the lack of employment skills, the transition to law abiding life outside prison is not likely to be easy. However, there is hope that his aging and a supervised return to the community in one form or another, may lead him to avoid repeating his past mistakes and that needs to be accommodated by the sentence imposed.

27. It is necessary to have regard to the totality of the sentences imposed. That is relevant to both the sentences for these offences as well as the sentences imposed by

Refshauge J. Those sentences relate to the period November 2015 and January 2016, with the January offences actually occurring during the same period as the current offences.

28. I have taken into account the offender's pre-sentence custody. He has been serving the sentences imposed by Penfold J and Refshauge J during the period since his arrest. His non-parole period ended on 2 January 2018. I have taken these facts into account. I have done that in a limited way through the consideration of the totality of all of his sentences, through some limited concurrency with the last of the sentences imposed by Refshauge J and by moderating the length of the non-parole period.

29. The offender's history of incarceration and sentencing is quite complex. The history since 2013 is usefully summarised in the decision of Refshauge J in Sampson v De Haan at [80]-[87].

30. The sentences imposed by Refshauge J were identified as starting on 2 January 2017. That involves an element of concurrency both with the sentences imposed by Penfold J which were to end on 20 February 2018: Sampson v De Haan at [84], and with an additional sentence imposed by the Magistrates Court which expires on 20 May 2018: Sampson v De Haan at [86]. The sentences imposed by Refshauge J extended until

1 July 2021. The overall effect of the sentences imposed by Refshauge J was a sentence of four years and six months imprisonment. The non-parole period was reset so that instead of expiring on 20 November 2015 it expired on 2 January 2018. This was an extension of just over two years and one month.

31. Recognising that one of the offences for which Refshauge J sentenced the offender was the driving of a black Holden Commodore utility which was the same vehicle found with the offender when the offender was arrested for the present offences, there is at least a temporal connection between the offending conduct for which he was sentenced by Refshauge J and the offending conduct for which he is sentenced today. I will allow three months concurrency between the dishonestly driving charge sentenced by Refshauge J and the first of the sentences which I will impose today to recognise that fact and also having regard to considerations of totality and pre-sentence custody.

32. I will allow a 25 per cent reduction in the sentences that are imposed on account of the offender's plea of guilty. For the very short sentences imposed in relation to making off without payment the reduction is actually somewhat greater than that.

34. On the charge of burglary, the offender will be sentenced to 22 months and 15 days imprisonment reduced from 30 months on account of the plea of guilty. This sentence will commence on 2 April 2021 and end on 16 February 2023.

35. On the theft charge, the offender is sentenced to 12 months imprisonment (reduced from 16 months on account of the plea of guilty), four months of which will be cumulative upon the prior sentence. The sentence will start on 17 June 2022 and end on 16 June 2023.

36. On the damage property charge, the offender is sentenced to 12 months imprisonment (reduced from 16 months on account of plea of guilty), four months of which will be cumulative upon the prior sentence. The sentence will start on 17 October 2022 and end on 16 October 2023

37. On the charge of making off without payment, the offender will be sentenced to one month imprisonment (reduced from six weeks on account of the plea of guilty), which will be cumulative upon the previous sentence. The sentence will start on 17 October 2023 and end on 16 November 2023.

38. On each of the charges of obtaining property by deception, the offender will be sentenced to three months imprisonment (reduced from four months on account of the plea of guilty). The first charge (CC2016/8196) will be cumulative as to two months on the previous charge and each of the other three offences will be cumulative as to one month on the previous charge. Therefore the sentences will start and end as follows:

(a) CC2016/8196 will start on 17 October 2023 end on 16 January 2024;

(b) CC2016/8197 will start on 17 November 2023 and end on 16 February 2024;

(c) CC2016/8198 will start on 17 December 2023 and end on 16 March 2024; and

(d) CC2016/8200 will start on 17 January 2024 and end on 16 April 2024.

39. The total effective head sentence is 36 months and 15 days. The non-parole period will be increased by approximately 60 per cent of this figure, namely 22 months. Prior to the sentences, the non-parole period started on 21 February 2013 and ended on

2 January 2018. Therefore the new non-parole period starts on 21 February 2013 and ends on 1 November 2019.

40. I will make orders consistent with the sentence that I have just pronounced.

I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.