R v Steen [2014] ACTSC 309

See [25] to [28] below

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - offender sentenced for burglary and theft - offences committed while on conditional liberty - offender released on parole after serving non-parole period of sentences for three burglaries and four thefts - offender already in breach of parole conditions relating to residence and drug testing - parole cancelled by Sentence Administration Board - offences also aggravated by confrontation, and struggle over stolen goods, with elderly occupant who spent two nights in hospital as a result - 51-year-old offender has spent most of adult life in custody and is seriously institutionalised - difficulties with providing suitable post-release accommodation - new non-parole period set for total term of previous and new sentences.

Legal Aid ACT (Offender)

1. Marshall Steen has pleaded guilty to one charge each of burglary and theft, both committed on 8 June 2014.

2. These offences arise under ss 311 and 308 of the Criminal Code 2002 (ACT) and carry maximum penalties respectively including 14 and 10 years imprisonment.

3. On the morning of 8 June 2014, Mr Steen broke the glass in the kitchen window and entered a house in Farrer while the elderly occupants of the house were at church. He was still in the house when the occupants returned shortly before 11.00 am and was disturbed by the 78-year-old female occupant. Despite her attempt to grab hold of Mr Steen, and a struggle over the bags he was carrying, he escaped from the house with bags containing property from the house. That property, consisting mainly of jewellery, has been valued at just over $2,000.

4. Mr Steen apparently injured himself in breaking the glass and left blood in several locations in and around the house, including on a towel found inside the house. DNA testing identified Mr Steen as the source of the blood. The day after police received the results of the DNA testing, 1 July 2014, Mr Steen was arrested, and he has been in custody ever since.

5. Only seven days of that custody, however, is exclusively attributable to the new offences. This is because when these offences were committed, Mr Steen was on parole in respect of earlier offences. He had completed his non-parole period on 22 November 2013 but was not released to parole until 6 May 2014, apparently at least in part because of problems with the availability of suitable post-release accommodation. It seems that compliance with his parole conditions became a problem very quickly. The Sentence Administration Board had signed a warrant for his arrest on 24 June 2014 in respect of a breach report dated 29 May this year. His parole was cancelled on 8 July 2014, rendering him liable to serve an outstanding period of imprisonment of five years, nine months and 16 days expiring on 23 April 2020.

6. Mr Steen pleaded guilty to the new charges on 23 July 2014, his second appearance in court on these charges, and was committed to this court for sentence. I shall accept these as early guilty pleas, while noting that the DNA evidence would have made for a strong Crown case.

7. I sentenced Mr Steen in 2012 for three burglaries and four thefts, as well as two associated scheduled offences. The burglaries were very similar to the current one, involving daytime entry to domestic premises, achieved by means of breaking a glass door. In each case, Mr Steen had left blood traces in the house and he told the Pre-Sentence Report author at that time that he was careless about leaving blood because on one level he hoped to be caught sooner rather than later. I am not aware that he has made such a claim this time.

8. This new burglary was also a fairly routine domestic burglary involving Mr Steen's standard approach as already described. However, it is aggravated by the fact that it involved a confrontation with one of the occupants of the house, and a struggle with her over possession of bags containing the stolen property. It is also an aggravating factor that the stress of the confrontation, in which the occupant sustained a cut finger, also induced an episode of cardiomyopathy which saw her spend two days in hospital. Like the earlier burglaries, it is also aggravated by the fact that it was committed while Mr Steen was on conditional liberty.

9. Mr Steen told the Pre-Sentence Report author that he accepted that he would have scared the victims and that he "felt terrible for his actions". However, the Pre-Sentence Report author suggests that Mr Steen otherwise minimised his culpability by claiming to have no memory of the offences because he was affected by drugs at the time. Mr Steen drew attention to his early plea of guilty, noting that early pleas of guilty have not been his habit in the past.

10. When I sentenced Mr Steen in 2012, I described his criminal history as follows:

Mr Steen has a long criminal record, which began with traffic offences and quickly expanded to include dishonesty offences. By the time he was 20, he had begun his first prison sentence, 3 years with an 18-month non-parole period. Since then, Mr Steen, who is now 49, has spent most of his time in prison. I'm told he has spent up to 28 years of his 49 years there. As well as burglaries and other dishonesty offences, there have been a significant number of robberies involving actual violence. However, except for two aggravated robberies in 2005, his ACT offending, which began in 2004. seems to have been largely confined to dishonesty offences.

11. The offences dealt with in 2012 were also dishonesty offences not involving any violence; it is disturbing that in the current case Mr Steen was willing to engage in a struggle with a 78-year-old woman, but in the circumstances I do not think this necessarily indicates an inclination to return to violent offending.

12. Mr Steen has had a very tragic life, which was detailed in my 2012 sentencing remarks but which need not be repeated today. However, the following comments made in 2012 are directly relevant in this sentencing:

Mr Steen has spent the bulk of his adult life in prison. Apart from having become seriously institutionalised and effectively incapable of independent living, an assessment made by a psychologist at least as long ago as 2006, he also carries psychological scars from 11 years in the notorious Boggo Road Gaol in Brisbane, which apparently included a 28month period in solitary confinement in an underground cell. Mr Steen was diagnosed with depression some years ago, and has accepted medication from time to time. It seems that he has been encouraged to make use of various services that may be able to help with mental health issues, but has been reluctant to do so, citing privacy concerns.

13. Mr Steen is now 51. He is a long-term heroin user, having apparently acquired a heroin addiction in prison when he was 18 or 19. He has made numerous attempts to deal with his addiction but apparently unsuccessfully. Counsel for Mr Steen pointed out that Mr Steen had, despite his comments during the last sentencing process, decided to undertake the Solaris Therapeutic Community program while in the AMC and had apparently completed that program, remaining in it for some time after completion as a peer support leader. Despite this, Mr Steen relapsed into drug use again shortly after his release.

14. The circumstances of that relapse are unfortunate.

15. Mr Steen's parole breaches involve failures to report to his parole officer, and failures to submit to drug and alcohol testing. He had also not resided as directed. Mr Steen had been evicted from his Canberra Men's Centre flat for a breach of their rules. Mr Steen says this related to having other people staying in the flat with him, but the Corrective Services documents suggest this also related to Mr Steen's failure to engage with Canberra Men's Centre Support Services. Mr Steen says that his accommodation was unsatisfactory and that it contained only a bed and a fridge and he had no way of obtaining more furniture, but this does not seem to explain why he breached the conditions relating to guests in the flat. Mr Steen says that after being evicted, he believed that the police were looking for him, and accordingly he stopped attending to receive his methadone doses. This in turn made him feel increasingly unwell, and after a few days he began using a variety of pills, possibly benzodiazepines, and in due course heroin. It was while affected by these various drugs, Mr Steen says, that he committed the current offences.

Mr Steen has spent most of his adult life in custody and appeared to have difficulty adjusting to the expectations of community based sentences. Mr Steen was in breach of his Parole Order within a very short period of release by the commission of this new offence.

...

Mr Steen is assessed as at medium/high risk offender [sic] due mainly to his extensive criminal history, ongoing drug abuse and his peer associations. It is considered Mr Steen would benefit from further treatment in relation to his drug dependence.

17. Mr Steen wrote a letter to the court explaining that after his last sentencing he believed he wouldn't be appearing in court again, and accordingly decided to do the Solaris Program at the AMC. When he was eligible to apply for parole, he accepted the parole authorities' view that he was not yet properly prepared for release, and hoped he would be offered group housing on release, but this had not been available. He had found it stressful living alone in the flat provided to him and even more stressful when he was evicted.

18. Mr Steen expressed his regret for hurting the victims of his burglary, a family he didn't even know.

19. Mr Steen continues to hold out hope that he will be able to rehabilitate himself, although it is apparent that he is still inclined to take the easy option and then to find excuses for his relapses. For instance, as noted, what Mr Steen sees as Corrections' failure to provide him with properly furnished accommodation does not really explain the particular breach of the rental agreement under which accommodation was in fact provided, and concern that police wanted to talk to him about something may explain, but does not justify, his decision to abandon his methadone treatment. It is also hard to avoid the suspicion that Mr Steen's very early failure to submit to drug testing was because he had relapsed even before the problems with his accommodation emerged.

20. There is some attraction in the proposition that it is time for Mr Steen simply to serve his outstanding sentences in full and start with a clean slate, by which stage he would be close to 60 and would have spent nearly two-thirds of his life in prison. However, the prospects of him ever learning to live outside the prison system, which are not good even now, would by that point seem to be almost non-existent, and accordingly I consider that Mr Steen must in due course be given another opportunity to learn how to function, and how to behave himself, in the community.

21. Deterrence is recognised as important in relation to burglary and theft offences, especially to the extent that they are planned and committed for financial gain. Of course, to the extent that they are committed to fund drug addiction or by people under the influence of drugs, the efficacy of deterrence may be questionable, but that is another matter. Clearly Mr Steen also needs personal deterrence, but given his extraordinary record of incarceration and his repeated offending, prison terms appear to have virtually no deterrent effect on him.

22. Following the most recent cancellation of his parole, Mr Steen had just under five years and 10 months imprisonment to serve in respect of earlier sentences. It is not quite that long now. It is depressing to note that he now has longer outstanding on previous sentences than he did last time I sentenced him, and that he has not yet started serving any of the sentences I imposed in 2012.

23. The new sentences will be accumulated to some extent on those existing sentences, and I will need to set a new non-parole period for the total sentence that Mr Steen will then be serving.

25. I record convictions on one charge each of burglary and theft.

26. I now sentence you to imprisonment for three years for the burglary and 18 months for the theft, to be served concurrently. Those sentences have been reduced from four years and two years respectively for your pleas of guilty. Having regard to the seven days you have already spent in custody on the new offences alone, and to the principle of totality, those sentences will be accumulated on the sentence currently being served so as to add 18 months to that total sentence, which will accordingly expire on 23 October 2021. That means that the two new sentences will start on 24 October 2018.

27. I understand that you are still serving or liable to serve terms from the 2008 sentences totalling four and a half years, as well as the 2012 sentences which totalled four years and were accumulated on the earlier sentences as to three years. By my calculations, that means that the earliest of your outstanding sentences is effectively backdated to 24 October 2012, and that the total sentence for which I need to set a non-parole period is therefore nine years from 24 October 2012 to 23 October 2021.

28. The new non-parole period for the total sentence will be four years and nine months and so it will start on 24 October 2012 and expire on 23 July 2017. This means that you will be eligible to apply for parole again in just under two years and nine months. By then, I think, you will have finished the sentences originally imposed in 2008 and will have started serving a number of those imposed in 2012.

29. Mr Steen, your counsel urged on me that Corrections ought to be encouraged to provide even more support to you when you are next released on parole. It does seem that there were some problems associated with your most recent accommodation, but I am not convinced that those problems, at least as put to me, provided even an explanation for your very quick relapse into drug use and reoffending, let alone an excuse.

30. It may be, having regard to your criticisms of the most recent arrangements, that you need something more in the way of hostel accommodation than a flat where you are expected to live fully independently, but it is easy to imagine that hostel accommodation (even assuming such exists) would provide another different set of challenges that could defeat you once again, unless you are prepared to take full responsibility for resisting the temptation to relapse into drug use, whatever obstacles appear in your path. If your rehabilitation depends on nothing ever going wrong for you, Mr Steen, you are unlikely ever to achieve it.

I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.