R v Steen [2015] ACTSC 259

Supreme Court of the ACT|2015-08-18|Before: Refshauge J

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. Marshall James Steen be convicted of the offence of burglary committed on 29 June 2014.

2. Marshall James Steen be sentenced to imprisonment for two years and six months to commence on 24 October 2019; that is, to be cumulative as to six months on the sentence he is currently serving.

3. Marshall James Steen be convicted of theft on 29 June 2014.

4. Marshall James Steen be sentenced to imprisonment for 18 months to commence on 24 October 2019; that is, to be wholly concurrent on the sentence for burglary in order 2.

5. Marshall James Steen be convicted of minor theft on 29 June 2014.

6. Marshall James Steen be sentenced to three months imprisonment to commence on 24 October 2019; that is, to be wholly concurrent on the sentence for burglary in order 2.

7. A nonparole period be set to commence on 8 July 2014 and to end on 23 July 2017.

CRIMINAL LAW - Jurisdiction, practice and procedure - sentence - burglary - theft - minor theft - extensive criminal history - long history of imprisonment - history of drug addiction - seeking rehabilitation - cancelation of non-parole period - calculation of non-parole period - no realistic prospect of payment of a compensation order

Crimes (Sentencing) Act, ss 7, 33, 61(3), 65(3), 65(4), 66(2), 66(3), 66(4), 68, Pt 4.4

Fusimalohi v The Queen [2012] ACTCA 49

Heard v The Queen [2015] ACTCA 6

Inge v The Queen [1999] HCA 55; (1999) 199 CLR 295

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

Ngo v Fairfield City Council [2009] NSWCCA 241; (2009) 169 LGERA 56

R v Hayes [1984] 1 NSWLR 740

R v Hutchinson [2014] ACTCA 29

R v Krasnov (1995) 125 FLR 120

R v Lansdell (Unreported, NSW Court of Criminal Appeal, Gleeson CJ, Dowd and Hulme JJ, No 60090 of 1996, 23 May 1996)

R v Steen (Unreported, Australian Capital Territory Supreme Court, Penfold J, SCC No 85 of 2012, 18 December 2012)

R v Steen (Unreported, Australian Capital Territory Supreme Court, Gray J, SCC No 250 of 2005, 24 June 2008)

R v Steen [2014] ACTSC 309

Radenkovic v The Queen [1990] HCA 54; (1990) 170 CLR 623

Rubino v The Queen [2015] ACTCA 22

Simonds v The Queen [2013] ACTCA 13

Tate v The Queen [2012] ACTCA 50

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

Legal Aid ACT (Accused)

1. All sentencing decisions are complicated. The High Court in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 611; [75] has required a sentencer to bring all the competing considerations together with the experience and knowledge of the judicial officer in an instinctive synthesis which, at the same time, is required by the High Court in Markarian v The Queen (2005) 228 CLR 357; [39] to be delivered with accessible reasons which are necessary in the interests of the victim, the accused, the prosecutor, appeal courts and the public. That is complicated.

2. Some decisions can be even more complicated. This can be so where, as here, the sentencing for particular offences has to be undertaken in the context of existing sentences which need to be included, but which often constrain the options available to the sentencing court.

3. Marshall James Steen has pleaded guilty to one count of burglary, one count of theft and one count of minor theft. He is currently serving a lengthy term of imprisonment for other offences, including burglary offences. Burglary is an offence against s 311 of the Criminal Code 2002 (ACT) for which the maximum penalty is 1400 penalty units (that is, at the time, a fine of $210,000) and 14 years imprisonment. Theft is an offence prohibited by s 308 of the Criminal Code, which provides for a maximum penalty of 1000 penalty units (that is, at the time a fine of $150,000) and 10 years imprisonment. Minor theft is an offence contrary to s 321 of the Criminal Code and is punishable by a maximum penalty of 50 penalty units (that is, at the time, a fine of $7500) and six months imprisonment.

4. Mr Steen was identified as a burglar because of a sample of blood left at the premises which matched his DNA. At the time of charging he was in custody at the Alexander Maconochie Centre and accordingly summonses returnable on 3 March 2015 were issued charging him with the various offences. It appears that arrangements were not made to bring him from the Alexander Maconochie Centre on that day and the matter was adjourned to 6 May 2015 when he changed his plea to guilty for each offence. He was then committed on the charges of burglary and theft to this Court for sentence and the charge of minor theft was transferred under s 90B of the Magistrates Court Act 1930 (ACT) to be dealt with under Part 8 of the Supreme Court Act 1933 (ACT). He has adhered to his plea before me and now stands for sentence.

5. At about 11:30 am on Sunday, 29 June 2014, Mr Steen entered a secure shed, courtyard and residential premises in Lyneham and then entered the private, secure courtyard to a unit within those premises by climbing over a courtyard wall. He tried to enter the unit by attacking the kitchen door. He cracked the glass and left traces of blood. He then entered the premises through a bedroom glass door, damaging it by breaking the glass which allowed him to enter the unit.

6. He searched through drawers, bags and other areas in the bedroom, stealing property to the total value of $4430. This property included two laptops, an iPad, other electronic equipment, some fishing tackle, two watches and a luggage set. He also, perhaps more significantly, stole a set of Australian Defence Force medals and some jewellery. The medals are obviously of sentimental value and often jewellery is also. The laptops too may have contained private and irreplaceable material. He also stole a black coloured watch valued at $400 which was owned by a separate person and is the subject of the charge of minor theft.

7. Importantly, one of the residents was in the premises but was not disturbed by Mr Steen's entry and searching because the apartment shared a wall with a gym through which the occupants often heard noises, thus he did not initially notice Mr Steen's entry. Later, however, Mr Steen entered the room where the other occupant was and immediately closed the door and left the premises. After the initial shock, the occupant followed Mr Steen and saw him leaving the premises through the front door. He phoned police immediately, who later attended.

8. By 31 July 2014 Mr Steen had been imprisoned so police attended at the Alexander Maconochie Centre on 31 July 2014 to interview Mr Steen about the incident. He declined to be interviewed. It is not clear why he was not charged then or shortly after. I return to this issue below. None of the property stolen by Mr Steen has been recovered and compensation is sought by the owners.

9. Mr Steen is now 52 years old. He has been before the courts on many occasions, as I shall chronicle below. While the Pre-Sentence Report does not detail his background, I have read decisions of this Court, R v Steen [2014] ACTSC 309 (R v Steen [2014]) and R v Steen (Unreported, Australian Capital Territory Supreme Court, Penfold J, SCC No 85 of 2012, 18 December 2012) (R v Steen (2012)) which set out certain facts about Mr Steen and his personal history. Those decisions were formally before me in the proceedings and I take into account what is said in them without needing to repeat in detail everything said in them. Nevertheless, I use them to summarise his personal circumstances and to make the following findings.

10. Mr Steen's parents separated when he was two years old and he experienced a somewhat difficult childhood, especially as his mother remained involved with a strict church whose expectations dominated his life with her. Mr Steen's father re-partnered, however, and his stepmother treated Mr Steen as her own. Unfortunately, between the ages of 11 and 13, Mr Steen was sexually abused during participation in church-sponsored activities, and this greatly affected him. His mother also re-partnered and it appears that at about the same time she and her new partner moved away. Mr Steen remained living near his grandfather but on his own. His grandfather did provide some support. He has lived independently since then, but most of his adult life has been spent in prison.

11. Mr Steen completed high school education and gained employment as an apprentice spray painter. He pursued this occupation for about 16 years before moving to the ACT to undertake labouring work.

12. Mr Steen married but he and his wife separated because of her infidelity while he was in prison. He has a daughter aged 16 who lives in Queensland and, until recently, he has had little contact with her. He now has telephone contact with her every three weeks or so. He also appears to have a good relationship now with his ex-partner, who is also in Queensland and with whom he has some contact. His long-term plan is to return to Queensland and, in particular, to leave behind his criminal and drug associations. That would clearly be desirable.

13. After his marriage failed he formed a new and positive relationship but this new partner, then five months pregnant, tragically died as a result of a car accident. Mr Steen had to make the decision to remove her from life support after brain death was established. Unsurprisingly, he then relapsed into drug use and crime and spent further years in prison as a result. In 2012 Penfold J commented in R v Steen (2012) at pg 3:

"Mr Steen's relationship with his father and stepmother has remained close until recently when his father told him not to talk to any of the family until he fixes his problems."

14. It appears that he now has re-established a good relationship with his mother and stepfather, who are in Queensland, and with his father and stepmother.

15. Mr Steen has a long history of heroin use. He was introduced to heroin when in prison at about age 18 or 19. He says it initially blocked out the pain he was feeling and allowed him to forget about his childhood sexual abuse for the first time. When he left prison he was employed as a painter by some people he had met in prison. They apparently had unlimited access to heroin and he quickly became addicted. He has had some treatment for his addiction. He has participated in a methadone treatment program on occasion, including more recently when he was receiving 120 mls per day. I refer to this further below.

16. He has been abstinent whilst in prison and he participated in the Solaris Therapeutic Community program while in the Alexander Maconochie Centre in 2014 before his release on parole. The effect of that period of rehabilitation, however, did not seem to last very long after his release on parole and he soon relapsed, leading to his present incarceration. It appears that heroin is his only drug use. He does not drink alcohol. I note too that Mr Steen is making further efforts to manage his drug addiction. He has been on a methadone program for about seven and a half years now and is in the process of withdrawing. He started seven months ago to reduce from the drug completely, down from his normal dosage of 122 mls per day. As part of his reduction he has been taking Buprenorphine, an antagonist used to treat heroin withdrawal symptoms. In his withdrawal he has found that his emotional feelings have returned.

17. To his credit, Mr Steen has completed some courses whilst he has recently been in custody. He has completed a number of first aid courses and the First Steps to Anger Management program. He has also participated in mental health therapy, in particular Schema therapy, attending weekly sessions and expecting to complete the program this month. Ms S Saikal, who appeared ably for Mr Steen, submitted that I should find that he is making genuine efforts at rehabilitation and that there is some progress. That was accepted by Mr G Mansfield, who appeared helpfully for the Crown.

18. Mr Steen has, as I have noted above (at [9]), a long and depressing criminal history. He has been found guilty of 111 offences, the vast majority of which are dishonesty offences, namely 75, of which 35 were burglary or similar offences. Of the remainder, 18 are robbery or similar offences and 14 are traffic offences, including three offences of dangerous driving. It is a very serious record showing spectacular disregard for the rules of a civilised society and particularly for the property of other people.

19. In this case, the property was stolen from an ordinary working woman, who no doubt had worked hard to earn the money to acquire the property he stole; some of it also, such as the medals, would have had great sentimental value. There is no reason to believe that the property stolen in the many burglaries that Mr Steen has committed could not be described in the same way. Robberies are very serious offences and often traumatise the victims, who are usually employees just doing their job.

20. The prior offences committed by Mr Steen are important in the sentencing process, but a court must be careful about how they are taken into account. As pointed out by the High Court in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477, the criminal history of an offender can be taken into account but there are principles that must be respected as follows:

(1) prior offences are relevant to show a continuing disobedience to the law which may indicate that a more severe penalty is appropriate;

(2) a prior record cannot be given such weight as to lead to a sentence disproportionate to the seriousness of the offence for which the sentence must be imposed, for that is to impose a fresh penalty for past offences;

(3) a prior record is relevant to a claim for leniency and will generally deny the offender the leniency that is available to a person without a criminal record.

21. A prior criminal record does not necessarily deprive an offender of any leniency. That will depend on the nature of the criminal record of the offender. For example, where prior offences were committed a long time ago or were of a different character or were not serious offences or where there has been a gap in the offender's criminality, it may be able to be given less weight. It was, however, pointed out in Ngo v Fairfield City Council [2009] NSWCCA 241; (2009) 169 LGERA 56 at 61; [29] that repeating offences of the same type can elevate the culpability of the offences.

22. In this case, the offence of burglary which Mr Steen committed was a reasonably common form of the burglary offence. It was a little more serious because some damage was caused in the course of his entry into the premises. There was also an occupant present, though there was no real confrontation. The intrusion into people's homes is nevertheless a serious breach of their right to privacy and integrity. It often leaves the victims with a sense of invasion and insecurity.

23. The loss of property from the usually associated theft can have significant financial consequences and even insurance will often not completely cover the loss, especially in terms of any sentimental or non-pecuniary value of the stolen property. And, in any event, it takes time and effort, with attendant inconvenience, to make an insurance claim and to replace what the owner has often worked hard to acquire. The call on insurance will mean too that the premiums may be affected and that puts the rest of the community to expense as well (see R v Hayes [1984] 1 NSWLR 740 at 742). In this case, the theft was of property that was reasonably valuable, which clearly makes the theft a more serious offence.

24. The offence of minor theft, separately charged because of the different ownership of the subject item of property, was an unremarkable version of the offence and does not warrant an increased sentence above what should be imposed for the other offences.

25. In this case, a significant factor that I need to address is Mr Steen's history of imprisonment. It appears that he was first sentenced to imprisonment in 1984. He has, it was said in the Pre-Sentence Report, "spent most of his adult life in custody." It is not possible simply from his criminal record to give that numerical confirmation, but the non-parole or minimum terms since that time seem to add up to over 30 years. His current non-parole period, included in that estimate, will expire on 23 July 2017, in nearly two years time.

26. I assume too that the earlier sentences may have been subject to the regime of remissions on the non-parole period that was in place at the time. The regime was described in R v Paivinen [1985] HCA 39; (1985) 158 CLR 489 at 493-9. It was subsequently replaced by the so called "truth in sentencing" regime described in Radenkovic v The Queen [1990] HCA 54; (1990) 170 CLR 623 at 625-6, which requires the offender actually to serve the non-parole period or minimum term other than in the most exceptional circumstances.

27. When first sentenced to imprisonment in Queensland, Mr Steen spent 28 months in solitary confinement in an underground cell. Conditions such as this would not be tolerated today. Unsurprisingly, this left psychological scars which would have positively hindered his rehabilitation, almost certainly making him more likely to commit crimes when released and making a sensible transition into the community almost impossible. Thus, the general substance of what was said in the Pre-Sentence Report about his imprisonment is quite accurate. This gives credence to the additional comment that Mr Steen has had "difficulty in adjusting to the expectations of community based sentences." Indeed, it would be extraordinary if he were not to be, to a significant degree, so accustomed to the custodial environment as to be, to some extent, institutionalised. This, of course, is good for neither him nor the community.

28. That does not mean that the offences and their gravity can be ignored. Indeed, the court is given little leeway in the ability to provide a creative response which could break the unfortunate cycle of imprisonment, followed by offending, followed by further imprisonment. It appears that the parole orders releasing him from custody are regularly revoked. This is strongly indicative of the difficulty he has in adjusting to life outside prison without a return to criminality, no doubt substantially related to his drug addiction. He has even been unable to take the opportunities he has been given to address his drug addiction. See R v Steen (Unreported, Australian Capital Territory Supreme Court, Gray J, SCC No 250 of 2005, 24 June 2008) (R v Steen (2008)).

29. It is also important to identify Mr Steen's current custodial situation, for the interaction between the new sentences that I must impose and the current sentences can be complicated (see, though in a slightly different context, Allred v R (2015) 10 ACTLR 325) The current series of offences commenced with sentences imposed by Gray J on 24 June 2008 in R v Steen (2008) for two counts of aggravated robbery, one count of taking a motor vehicle without consent, one count of possession of heroin, seven counts of burglary, 13 counts of theft and five counts of receiving stolen property. Certain additional offences of unlawful possession and giving a false name were taken into account under part 4.4 of the Crimes (Sentencing) Act, offences usually described as scheduled offences.

30. Mr Steen was sentenced to a total of 11 years imprisonment to commence on 19 September 2005 and a non-parole period of six years was set to end on 18 September 2011 (see R v Steen (2008) at 18).

31. I note that the criminal record produced by the Crown does not seem to record these sentences accurately. These are the errors I could detect:

• three counts of receiving stolen property are referred to at one point in the record but there were actually four charge numbers listed and sentences were imposed for all four charges in R v Steen (2008); and

• an additional count of receiving stolen property (CC 2007/9308) is recorded but there is no record in R v Steen (2008) of any sentence imposed on that count.

32. In sentencing Mr Steen, Gray J said in R v Steen (2008) at 14:

"In 1999 he was convicted in the Sydney District Court of seven counts of armed robbery, in respect of which he was sentenced to a minimum of five years and an additional term of three years. I am aware of certain circumstances concerning that particular sentence. His parole in respect of that offence has been revoked by the New South Wales authorities for breach of the conditions of his parole order, including failing to adapt to a normal lawful community life. He is due to serve one year, eight months and 11 days of this parole. In the event that I imprison him for the offences before me, he will be as I understand it firstly held in the New South Wales prison system to serve this balance of parole and I expect that to take place."

Given that, at the time of sentence, this Territory had no prison and offenders who were imprisoned served their sentence in New South Wales prisons, that seems likely.

33. Mr Steen next came before the court on 1 July 2008 when he was dealt with in the Magistrates Court for driving whilst disqualified, not stopping his motor vehicle when signalled to do so by police, dangerous driving and unlawful possession of stolen property. He was sentenced to a Good Behaviour Order for six months. That seems a curious matter given the earlier sentences, but I do not need to consider it further. It does not affect his custodial situation.

34. Mr Steen then appeared before Penfold J on 18 December 2012 (see R v Steen (2012)). He presumably had been released on parole on or about 18 September 2011. He was, however, charged with committing three burglaries and three theft offences in November and December 2011. His parole was revoked on 21 February 2012 when he was liable to serve the balance of the sentence imposed in R v Steen (2008), namely five years and two days. Penfold J noted that this meant that his current sentence would expire on 22 February 2017.

35. Her Honour imposed a total sentence for the three counts of burglary and four counts of theft, together with two scheduled offences of unlawful possession of stolen property and dishonestly obtaining financial advantage. Her Honour made the sentences concurrent as to 12 months with the then existing sentence, thus being cumulative as to three years. The sentences therefore were to end on 22 February 2020. Under s 66(2) of the Crimes (Sentencing) Act, her Honour was required to set a non-parole period, "as if the court had sentenced Mr Steen to imprisonment for a term equal to the total of the terms of the existing sentence and the new sentence."

36. The current non-parole period was automatically cancelled by s 66(3) of the Crimes (Sentencing) Act. Although the prior non-parole period had expired, I assume that it was still to be cancelled so that a new period could be set and Mr Steen could be considered for parole in respect of the earlier sentence, as would otherwise be possible following the revocation of his parole unless a new non-parole period was set. Her Honour set a non-parole period to expire on 22 November 2013.

37. Mr Steen was then released on 6 May 2014. Again the problems he experienced in the community became soon evident for, just over a month later, he entered a house and stole some jewellery worth about $2000. He was arrested for the burglary and theft. Again his parole was revoked by the Sentence Administration Board, requiring him to serve the balance of the sentences of imprisonment of five years nine months and 16 days from the date of revocation, 8 July 2014, to expire on 23 April 2020.

38. Mr Steen pleaded guilty to these fresh offences and was sentenced to a total of three years imprisonment to commence on 24 October 2018 so as to be cumulative as to 18 months on the current sentence and to end on 23 October 2021. A new non-parole period was set to expire on 23 July 2017 (see R v Steen [2014]). When Mr Steen appeared before me, however, the criminal record tendered showed that he had been dealt with in the Magistrates Court for furious or reckless or dangerous driving. He was sentenced to nine months imprisonment but to be wholly concurrent with the sentence he was then serving, that is, to commence on 18 August 2015. No non-parole period was set.

39. Clearly, however, the imposition of the sentence in the Magistrates Court had cancelled the non-parole period set in R v Steen [2014] by Penfold J (s 66(3) of the Crimes (Sentencing) Act). Accordingly, I adjourned the proceedings to permit the parties to approach the Magistrates Court to see if the intention had been not to set a non-parole period (s 65(4) of the Crimes (Sentencing) Act), though the Court had apparently not expressly declined to do so. That is likely to be required if that was the Court's intention.

40. While reasons are not strictly required for such a decision (R v Arnold [1998] VSCA 34; [1999] 1 VR 179 at 184-5; [14]- [15]), this was quite an unusual situation for the effect would be that although the sentence imposed in the Magistrates Court was wholly concurrent with the existing sentence and would expire nearly two years before the non-parole period set in R v Steen [2014], there would be no non-parole period and Mr Steen would then have to serve the whole of the balance of his sentence, namely until 23 October 2021, about an extra four years and three months in custody. Such an unusual outcome would ordinarily require a sentencer to give reasons (see R v Krasnov (1995) 125 FLR 120 at 127).

41. The matter did return to the Magistrates Court as I had hoped and I am grateful to the learned magistrate, who indicated that it was not intended to interfere with the sentence set in R v Steen [2014]. Accordingly, the matter was addressed under s 61(3) of the Crimes (Sentencing) Act. It could properly have been dealt with also under s 68 of that Act. The learned magistrate set a non-parole period to end on 23 July 2017; that is, the same date as set in R v Steen [2014]. I am very grateful to the learned magistrate for dealing with this matter so promptly and appropriately for, had that not happened, I could not have set a non-parole period that would expire prior to 23 October 2021 as a result of the operation of s 66(4) of the Crimes (Sentencing) Act (see Allred v R at 340-2; [64]-[72])).

42. The purposes of sentencing are set out in s 7 of the Crimes (Sentencing) Act. In this case, general deterrence is a significant factor and, given Mr Steen's history, so is specific deterrence. As to rehabilitation, Mr Steen has regularly shown in the past that, despite opportunities, he has either been unable to take them or, if he has taken them, he has been unable to maintain the management of his addiction for very long.

43. Nevertheless, it was submitted that Mr Steen has now made more sustained efforts at rehabilitation on this occasion. He has reflected on his failure to manage on parole on the last occasion. He is, I am told, very ashamed that he is in the position he now finds himself. He is said to be very motivated and keen to apply for parole. While I must be cautious about these assertions, especially as they only came from the Bar table and I did not hear directly from Mr Steen at all, it seems to me that I can take them into account as I can take into account his progress and motivation (see in particular what the Court said about such promises of reform in R v Govinden [1999] NSWCCA 118; (1999) 106 A Crim R 314 at 319; [35]). It is clear that continued incarceration has not provided any significant success for deterrence to Mr Steen, but it does protect the community for the period while he is in custody. That is not an irrelevant consideration.

44. I also take into account the matters referred to in s 33 of the Crimes (Sentencing) Act so far as I know them. They are set out above apart from sentencing practice, to which I now turn. The Court of Appeal has considered the issue of burglary on a number of occasions. In particular, I refer to the decisions of Rubino v The Queen [2015] ACTCA 22, R v Hutchinson [2014] ACTCA 29, Simonds v The Queen [2013] ACTCA 13, Fusimalohi v The Queen [2012] ACTCA 49 and Tate v The Queen [2012] ACTCA 50. I note too that because he is serving a lengthy sentence already, Mr Steen has been considered unsuitable for a community work condition to a Good Behaviour Order or to serve a term of imprisonment by periodic detention. In any event, given his criminal history and the seriousness of the offences, I consider that no other penalty than a term of fulltime immediate custody is appropriate.

45. I note that the offences were committed on 29 June 2014 and although Mr Steen was in custody from 8 July 2014, police identified Mr Steen as a burglar and thief in July 2014, attending at the Alexander Maconochie Centre on 31 July 2014 to interview him, albeit he declined to be interviewed. By this time, the blood found at the residence had been matched with Mr Steen's DNA. Nevertheless, he did not come before the courts until May 2015. The only explanation as to why it took until 4 February 2015 to have summonses issued is that there was a miscommunication within the Australian Federal Police. That is unacceptable when the liberty of the subject is at stake. The delay is a factor I must consider, but it has little direct weight for the delay is not extensive. It is now just over a year since he could reasonably have been charged.

46. Nevertheless, as referred to in R v Todd [1982] 2 NSWLR 517 at 519, delay may be relevant if there has been progress in rehabilitation. As I have noted above, Mr Steen has used his period in custody since being sentenced by Penfold J quite productively towards his rehabilitation. He is to be given credit for that. There is another matter, however, for, as Ms Saikal properly submitted, it would have been appropriate for these offences to have been dealt with by Penfold J at the same time as R v Steen [2014]. This brings into operation the principle identified in Mill v The Queen (1988) 166 CLR59 at 66-67 where I need to approach the sentencing for these offences by asking myself what sentence would have been appropriate if Mr Steen had been sentenced at the same time as he was sentenced for the earlier offences. This will particularly affect the totality of the sentence to be imposed. These offences were, after all, committed only three weeks after the offences for which he was sentenced in R v Steen [2014].

47. Mr Mansfield submitted that the offences were similar to those for which Penfold J sentenced Mr Steen in R v Steen [2014]. Indeed, the earlier burglary was somewhat more serious in that there was a physical confrontation with an elderly woman who occupied the home which Mr Steen entered as a trespasser. He was, of course, on parole at the time of both offences, which is an aggravating factor. Mr Mansfield accepted, however, that Mr Steen entered an early plea of guilty and expressed remorse in that way and Ms Saikal added that Mr Steen is genuinely remorseful and accepts that he would have shocked the occupant of the premises whom he disturbed. Mr Mansfield also accepted the submissions made by Ms Saikal as to progress Mr Steen had been making in his rehabilitation.

48. It seems to me that Mr Steen must have a lengthy parole period for his institutionalisation will require considerable support. This is a situation, not unlike that which confronted the New South Wales Court of Criminal Appeal in R v Lansdell (Unreported, NSW Court of Criminal Appeal, Gleeson CJ, Dowd and Hulme JJ, No 60090 of 1996, 23 May 1996), where Mr Lansdell was dealt with for an offence of breaking, entering and stealing, the equivalent offences to those for which I have to sentence Mr Steen. Mr Lansdell also had an appalling criminal record and, as Dowd J stated at p 2, "most of his time in living memory has been spent in prison", having been in gaol for 28 of the last 31 years.

49. The New South Wales Court of Criminal Appeal declined to interfere with the sentence imposed when hearing the Crown appeal against sentence, even though it was an apparently lenient one. It permitted, as Gleeson CJ described it, at p 6, "seeking to achieve a break in the cycle of offending, incarceration and reoffending." What the sentencing judge attempted was to see if an earlier release to a structured environment "might achieve something of benefit to the community." It was, his Honour said, an exceptional case.

50. It seems to me that the Sentence Administration Board should consider carefully whether such an opportunity should be given Mr Steen when he comes to apply for parole if there is such a structured environment, say through the Canberra Men's Centre, that could be accessed. I cannot determine that and I can ensure that the parole period is sufficiently long to allow for the considerable support and guidance that Mr Steen will require.

51. I note that compensation is sought in the sum of $4430 for the occupant of the bedroom Mr Steen entered and $400 for the other item. Bell J made a most useful and thorough analysis of the principles surrounding the making of compensation orders in RK v Mirik [2009] VSC 14; (2009) 21 VR 623. His Honour made the following points:

• it is not wrong in principle, however, to order compensation against an offender without means;

• the order is a means of vindicating the invasion of the victim's rights by avoiding the need for expensive civil action;

• the court may have regard to the effect such an order may have on the rehabilitation of the offender and the means available to meet such an order. An order for compensation is not a punishment and is different in its effect on sentencing to a confiscation order;

• a lengthy period of payment is not reasonable; and

• compensation should generally only be ordered in straight forward cases.

52. In this case, an order for compensation would be largely symbolic. In the United Kingdom it has been held that a compensation order should not be made where there is no realistic prospect of its payment. See R v Inwood (1974) 60 Cr App Rep 70 at 73. That approach was followed in New Zealand in R v Rollo [1981] NZCA 43; [1981] 2 NZLR 667 at 671-2, though legislation has since changed that situation there. Given Mr Steen's age and circumstances, I do not consider that a compensation order should be made.

53. One other matter that needs consideration is the effect of s 65(3) of the Crimes (Sentencing) Act which requires me if, as I intend, I set a non-parole period, to state when it starts and ends. It is easy to state when it ends. In this case, of course, it is not easy to see when I should indicate that it starts. If the assessment of the non-parole period was a matter of mathematics, for example it should be more than 50 per cent of the head sentence or about 60 per cent, not more than 75 per cent or some such suggestion as has been in the cases from time to time, then the precise starting point becomes critical.

54. That approach, however, has been rejected by Kirby J in the High Court in Inge v The Queen [1999] HCA 55; (1999) 199 CLR 295 at 316; [59]. His Honour's approach was followed by the Court of Appeal in Heard v The Queen [2015] ACTCA 6 at [50]. Non-parole periods should not be set or assessed mathematically. Obviously the non-parole period should start when the sentence of imprisonment starts. It cannot start earlier, it should not start later. It seems to me that, in principle, the non-parole period in the case of sentences, including periods of parole, should start when the custodial portion of the sentence commences at a point where it is continuous with the period from that date to the end of the non-parole period.

55. In cases, however, where the sentence is backdated to take account of presentence custody and that period has been fragmented, such as when bail is revoked for breach and perhaps later re-granted and sometimes further revoked, the backdating is usually specified to commence on a date prior to sentence, calculated on the sum of the periods of pre-sentence custody, even if discontinuous, thus introducing an element of fiction, but nevertheless justifiable. In my view, the start date of the sentence in that case should be the start date for the non-parole period.

56. Here Mr Steen went into custody again on 8 July 2014 when his parole was revoked. That should be the start date for the non-parole period, not the date of the sentence imposed by Gray J in R v Steen (2008), even though part of the sentence he is currently serving may well be attributable to that sentence.

58. I convict you of the offence of burglary committed on 29 June 2014. I sentence you to imprisonment for two years and six months to commence on 24 October 2019; that is, to be cumulative on the current sentence you are serving as to six months. Had you not pleaded guilty, I would have sentenced you to imprisonment for three years and four months.

59. I convict you of theft on 29 June 2014. I sentence you to imprisonment for 18 months to commence on 24 October 2019; that is, to be wholly concurrent on the sentence for burglary. Had you not pleaded guilty, I would have sentenced you to two years imprisonment.

60. I convict you of minor theft on 29 June 2014. I sentence you to three months imprisonment to commence on 24 October 2019; that is, to be wholly concurrent on the sentence for burglary. Had you not pleaded guilty, I would have sentenced you to four months imprisonment.

61. I note that the present non-parole period is now cancelled by operation of law, namely s 66(3) of the Crimes (Sentencing) Act. I set a nonparole period to commence on 8 July 2014 and to end on 23 July 2017.

63. Mr Steen, you have been around long enough to probably know what I have just said means. In effect, I have added six months to the head sentence. That will make the parole period longer for you but, as I have indicated, and if you were listening, you will know I think you need a long period of parole, although you have never managed to do more than a few months after you have been released. I have not extended the non-parole period. It seems to me that the efforts that you have made at rehabilitation justify me allowing you to apply for parole on the date when Penfold J indicated that you should have that opportunity.

64. You are getting too old for this now. The revolving door syndrome is not any good for you and it is not good for the community. It is tough. At 52 years old there is a long history of drug addiction behind you. If you are really genuine about rehabilitation, however, the court will support you and I have given you the opportunity to get out of gaol at the same time as you would have had you been dealt with for the burglaries at the same time as Penfold J imposed those sentences. There are a few years now to go but if you can hack it through that period and maintain your rehabilitation then I have indicated to the Sentence Administration Board some of the opportunities that you should be given and hopefully you will be able to take advantage of those.

65. You have not got a lot of time left to make a relationship with your daughter, with whom you have made further contact. You should not waste the remaining years that you have got and if you put some effort into the period left in custody, maintain your abstinence from drugs and try to avoid the associations that you have, you may even be able to have your parole transferred to Queensland to get away from your drug associates, then you may be able, with a struggle, to get over this criminality that has been so much part of your life and become a useful member of the community.

I certify that the preceding sixty-five [65] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Refshauge.

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