R v Schwalm [2019] ACTSC 35

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence -Aggravated burglary - theft - possession of property suspected of being stolen or otherwise unlawfully obtained - damage to property not exceeding $5,000 in value - plea of guilty - extensive criminal history - illicit polysubstance abuse

Magistrates Court Act 1930 (ACT) s 90B

SCC 260 of 2018; SCC 261 of 2018

1. Mr Schwalm, you have pleaded guilty to one count of aggravated burglary and two counts of theft. In addition, you have pleaded guilty to summary charges in the Magistrates Court which were transferred to this Court pursuant to s 90B of the Magistrates Court Act 1930 (ACT). Those charges are one count of possessing property suspected of being stolen or otherwise unlawfully obtained, and two counts of damaging property not exceeding $5,000 in value.

2. The maximum penalty for the offence of aggravated burglary is 20 years' imprisonment, a fine of $300,000, or both. The maximum penalty for the offence of theft is 10 years' imprisonment, a fine of $150,000, or both. The maximum penalty for the offence of possessing property suspected of being stolen or unlawfully obtained is six months' imprisonment, a fine of $7,500, or both. Finally, the maximum penalty for the offence of damage property is two years' imprisonment, a fine of $7,500, or both.

3. You were first charged before the Magistrates Court on 6 July 2018. On 8 October 2018, you pleaded guilty to all charges in the Magistrates Court and you were committed for sentence to this Court and the summary matters were transferred.

4. I accept that your pleas were entered at an early time, and I propose to reduce by approximately 25 per cent the sentences that I would otherwise have imposed. Your pleas of guilty had very significant utilitarian value.

5. A full Statement of Facts was tendered at the hearing before myself this morning. There was no objection to any of the facts, and I will not now recite them. I will simply note that you were arrested with respect to these charges on 5 July 2018 and you engaged in a record of interview with police on that day. You told police that on the evening of 4 July 2018 you had consumed the drug "ice" and you did not remember what you had done, but you remembered being in the car park.

6. Subsequently, when asked about the cars you had broken into, you stated that one was a police car and that you took certain items from the police car. You disclosed the location of those items and police subsequently obtained all of those items except for one torch. You also recalled stealing a black bag containing a yellow purse, belonging to Ms Gee, but that has not been recovered.

7. You told police that you had committed the offences to repay a drug debt your son had built up with a dealer and that those people were threatening to harm or kill your son if that debt was not paid. You did not name your co-offender. That co-offender has not been identified and, of course, has not been charged.

8. You were remanded in custody with respect to these charges at the time of your arrest on 5 July 2018. You were sentenced in October 2018 with respect to the matters in the Magistrates Court and that sentence was backdated to 6 July and expired on 5 January 2019. As such, the time that you have spent in custody purely with respect to the present charges is 19 days. However, I accept that it is important that I consider the question of totality in sentencing you with respect to the present charges such that I try to, as much as possible, devise a sentence which would have been the same had you been sentenced with respect to all charges at the one time. I propose to do that by backdating the commencement of the sentences that I impose today.

9. I note that the circumstance of aggravation with respect to the aggravated burglary was that you were in company with one person. The offence occurred at night. The offence took place in a garage rather than in a residence as such. It may be anticipated that there would be less of a sense of violation on the part of those who were residents in the complex to which the garage was attached than had there been an entry into one of the actual residences.

10. The value of the property stolen was not insignificant, but it was also not particularly high. The cost of repair to the damage to the vehicles, I am told, is likely to be a couple of hundred dollars each, such that I am satisfied that there was not a significant amount of damage undertaken. As I have said, much of the property in relation to charge CC8706 of 2018 has been recovered. I would assess these offences as being in the lower range of such offences.

11. A Pre-Sentence Report was prepared for the sentence hearing. You are currently 35 years old and you have been known to Corrective Services since 2003. In the past, you have had a history of poor compliance and engagement with Corrective Services, resulting in breach action. However, to your credit, during the most recent period of parole you provided four urine samples without traces of illicit substances and two samples which contained only low levels of cannabis.

12. Since your most recent remand in custody, your compliance has been considered largely positive with no instances of disciplinary action being recorded.

13. I take into account the background information which is set out in the Pre‑Sentence Report. I will not now repeat it. I will simply refer to the opinion of the author of the Pre‑Sentence Report which coincides with my personal opinion based upon the material in the Report. The author of the Report was of the opinion that you are a 35 year old man with an extensive criminal history and a significant history of illicit polysubstance abuse. It appears that your attitudes towards your offending, which seem largely positive and reflective, conflict greatly with your actions and behaviours in the community.

14. To your credit, you were able to verbalise the significant risk domains that continue to contribute to your ongoing criminal offending and you have expressed a willingness to engage in appropriate interventions to address and manage these. However, your history of compliance in the community and your recent incident report whilst in custody is of significant concern.

15. You were assessed as being at a high risk of general reoffending. Your primary areas of criminogenic risk appear to be your history of using illicit substances, mental health issues and attitude towards offending behaviours. Your risk of offending also relates to accommodation, employment, family concerns and negative associations. As such, supervision in the community would aim to address those specific risk categories.

16. I take into account in sentencing you that you made full admissions to the police when you were interviewed by them. You have a very significant criminal history, particularly in relation to offences of dishonesty. That criminal history disentitles you to any leniency with respect to sentencing in the present matters and also speaks of the need for specific deterrence.

17. I take into account your generally good performance with regard to your most recent parole period. However, it appears that you clearly relapsed into the use of drugs after having concluded your parole period and subsequently you have relapsed into re‑offending.

18. The reason which you gave for having engaged in these offences does not to my mind significantly mitigate the offences. Whether you truly feel remorse for these offences is difficult to determine. As the author of the Pre-Sentence Report notes, you say the right things to the author of the Report whilst you are in custody, but you seem to have difficulty in maintaining any commitment to avoiding drugs and criminal offending when you are not in custody.

19. Your prospects for rehabilitation must remain guarded, but you are not without hope of rehabilitation and as such rehabilitation is not to be entirely discarded with respect to sentencing. These offences call for nothing less than the imposition of full-time periods of imprisonment.

20. With respect to the charge of aggravated burglary, I record a conviction and you are sentenced to two years and three months' imprisonment, which I have reduced from three years to reflect your plea of guilty, commencing on 6 October 2018 and expiring on 5 January 2021. I have backdated the commencement of the sentence to 6 October 2018 in order to reflect the requirements of totality.

21. With respect to each of the two theft offences, you will be convicted on each and on each you will be sentenced to six months' imprisonment, commencing on 6 October 2020 and expiring on 5 April 2021.

22. With respect to the two charges of damaging property, on each charge you will be convicted and you will be sentenced to two months' imprisonment, each sentence commencing on 6 March 2021 and expiring on 5 May 2021.

23. With respect to the charge of possession of stolen property, you will be convicted and sentenced to one month imprisonment, commencing on 6 May 2021 and expiring on 5 June 2021.

24. The aggregate sentence which I have imposed is therefore one of two years and eight months' imprisonment, commencing on 6 October 2018 and expiring on 5 June 2021. I will set a non-parole period of 21 months, commencing on 6 October 2018 and expiring on 5 July 2020.

I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Burns.

8 August 2019 Replace "Supreme Court Act 1933 (ACT)" with "Magistrates Court Act 1930 (ACT)" Paragraph: [1]