R v Stretton [2014] ACTSC 96

Crimes Act 1900 (ACT), s 26

Crimes (Sentence Administration) Act 2005 (ACT), s 108

• for the attempted aggravated burglary, to 12 months imprisonment reduced from 16 months;
• for the aggravated burglary, to 15 months imprisonment reduced from 20 months; and
• for the theft, to six months imprisonment reduced from eight months;

2. The aggravated burglary sentence and the concurrent theft sentence will start to run three months after the attempted aggravated burglary sentence, giving a total sentence of 18 months. The sentence will be backdated to 21 December 2013 to take account of time in custody, and will run until 20 June 2015.

3. The sentence is suspended with immediate effect, and the offender is ordered to sign a good behaviour undertaking for 18 months, with the following conditions:

• accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General or delegate;

• undertake such counselling, courses, programs or treatments as directed by his supervising officer.

1. Nathan Stretton has pleaded guilty to one charge of attempted aggravated burglary, and one charge of aggravated burglary and an associated charge of theft. The offences arose under ss 44 and 312, and under s 308, of the Criminal Code 2002 (ACT) and carry maximum penalties including imprisonment for 20 years, 20 years and 10 years respectively.

2. There is also an offence of assault under s 26 of the Crimes Act 1900 (ACT) to be taken into account when I sentence Mr Stretton for the attempted aggravated burglary. The assault offence carries a maximum penalty of two years imprisonment.

3. The incident from which the first charge arose took place in May 2013. At around noon on a Friday, Mr Stretton and another young man tried to break into a house in Monash by using a chisel to open the laundry window. They were observed by an occupant of the house who happened to have gone to school with Mr Stretton. When the occupant challenged them, Mr Stretton and the cooffender ran off. They were followed by a next-door neighbour, who caught up to them and spoke to the cooffender. While he was doing so, Mr Stretton approached him with the chisel in his hand and told the next-door neighbour he was going to stab him. After repeated threats, the next-door neighbour backed off (that threat is the assault).

4. Mr Stretton was arrested on the Sunday after the attempted burglary. On 3 June 2013 he was charged and released on bail. Before the second offences were committed he had spent a total of three nights in custody, including after breaches of bail.

5. The second group of offences were committed on 8 October 2013, a couple of weeks after I had heard sentencing proceedings in relation to the first offence. Mr Stretton, with a cooffender, broke into a house in Stirling at about 4.30 pm, while the occupier was home. Three juveniles had come with Mr Stretton and his cooffender when they drove to the house, and they waited in the car while the burglary was committed.

6. The occupier heard the break-in and left the house, after which she and her next- door neighbour watched Mr Stretton and his cooffender leave the house. The cooffender was carrying a small safe, which he threw into some bushes before getting into a waiting car. Seven hundred dollars in $100 notes had also been stolen from the house. Not long after, police saw the car and followed it with sirens activated. After a short pursuit the car stopped and Mr Stretton and the cooffender were arrested.

7. Mr Stretton pleaded guilty to the first charge on 8 July 2013, on his fourth appearance in the Magistrates Court. I accept this as an early plea. He pleaded guilty to the other offences on 15 November 2013, and I shall treat these also as early pleas.

8. After the second offences, Mr Stretton was remanded in custody and remained there until, on 30 January 2014, I granted him bail to attend Triple Care Farm for rehabilitation. He has spent 122 days in custody, in total, in respect of these offences.

9. Although Mr Stretton's attempt to burgle the first house was unsuccessful, it was a determined attempt, leaving damage to the laundry window frame and flyscreen, as well as the back door frame and flyscreen. In fact there was an occupant in the house, but lunchtime on a weekday is not necessarily a time at which it should be assumed that there would be people at home. Sensibly, the wouldbe burglars ran away rather than confronting the occupant. The burglary appears to have been premeditated, given that Mr Stretton had the chisel, and both he and his cooffender were wearing gloves.

10. The second aggravated burglary was clearly premeditated, and this time was apparently not deterred by the presence of the occupier. The offences were aggravated by the police pursuit undertaken in order to apprehend the offenders, by the fact that Mr Stretton was on bail and about to be sentenced for the earlier offence, and by the fact that Mr Stretton and the cooffender had taken three juveniles along for the ride.

11. The victim of the successful aggravated burglary provided a Victim Impact Statement as follows:

Ever since [the incident] on our premises, I feel very apprehensive when I come home from work if nobody is there and I won't even shower if nobody is in the house anymore. If my partner goes away for the weekend I won't stay by myself or even if he isn't home when I get home I will go into my neighbours until he gets home. Anyway to put all my fears in one bag, I feel very apprehensive, when I have never felt like this in my life.

12. Mr Stretton's criminal history involves only an offence of car theft and two associated offences of using an uninsured and unregistered vehicle. These offences were committed by Mr Stretton and several other young men who stole an unregistered and uninsured Commodore from a nature strip in Gordon and used it to do burn-outs. For his role in these offences Mr Stretton was subject to 15month good behaviour orders and a reparation order in favour of the owner of the car, but no convictions were recorded. The offences for which I am now sentencing him were committed in breach of those good behaviour orders.

13. Mr Stretton has not expressed remorse as such, but has indicated some insight about the effect of his offences, noting that the victim would have been worried and scared. He also expressed a wish that he had never committed the offences, noting that they would affect his life a lot. There is no Pre-Sentence Report relating to the second and third offences, so no specific information about Mr Stretton's attitude to those offences.

14. Mr Stretton is only just 19. He grew up in Canberra in a family of three children and is close to both his younger siblings and his parents. However, his behaviour deteriorated dramatically after his parents separated about five years ago. I note, however, that both his parents have been here to support him during these court proceedings. When Mr Stretton was 17 he went to live with his grandmother because of conflicts with his mother, but has moved back in with his mother since being bailed. At one point he said that he would like to leave Canberra when these matters are completed, and his mother agreed that it would be good for him to get away from negative influences in Canberra, but I have no information about whether this is still Mr Stretton's plan.

15. Mr Stretton finished Year 10, despite being regularly in trouble at school for his behaviour and for truancy. He has worked as a roofer and for his uncle as a tiler.

16. Mr Stretton says he has used cannabis for some years, and methamphetamines recently, including shortly before he committed the first attempted aggravated burglary. He initially claimed serious alcohol abuse starting from the age of 12, but when I challenged this, having regard to his mother's claim to have been unaware of this until quite recently, he withdrew the claims of significant alcohol and cannabis abuse, while maintaining his claim of methylamphetamine use just before the offence was committed.

17. Mr Stretton has no physical health problems and says that his mental health (which may involve depression and anxiety) has been better since he has reduced his drug use.

18. Since being granted bail after the second offences, Mr Stretton has completed the program at the Triple Care Farm. Mission Australia provided the following report on his time at Triple Care Farm:

Whilst at Triple Care Farm Nathan attended weekly individual counselling, along with a compulsory Drug and Alcohol group. Nathan also participated in the Dialectical Behaviour Therapy skills group. Nathan consistently showed maturity and insight in these sessions and he actively participated within both group and individual counselling.

Within the residential program Nathan worked hard to maintain positive relationships with both staff and students; he made an effort to follow all staff direction, be polite and he always maintained a high standard of hygiene and cleanliness. During his stay at TCF, Nathan actively improved his fitness by attending the gym daily, as well as running/playing sport every other day. Nathan was a consistent positive role model in attitude and behaviour for the other students. During his time within the program he obtained 4 Positive Behaviour Records for his exemplary attitude.

Nathan was highly motivated and focused whilst in the TCF program and he was determined to achieve his goals. Nathan showed a strong talent in all areas of the program, however he particularly excelled in music, woodworking, farming and landscaping. Nathan actively worked on his literacy and numeracy skills in our Links2Learning' stream which resulted in him obtaining a Certificate II in Skills for Work and Training, a Barista qualification and additionally CPR First Aid. Nathan worked hard on his art, living skills, horticulture and cooking tasks.

Nathan participated in the joint TCF/Warrigal Employment volunteer program providing landscaping to NGO services.

Nathan has worked extremely hard while he has been at TCF and he has found this experience to have been both a challenging and a rewarding one. Nathan has demonstrated significant progress in his attitudes towards offending behaviour, demonstrated through values based therapeutic work with his counsellor and author. Nathan improved in his confidence to say no to drugs across a range of situations as demonstrated with successful leave periods in the local area, in counselling and in DBT group work.

Upon graduating TCF Nathan is highly committed to gaining long term employment and has so far applied for 12 jobs. He would like to do volunteer work, build on his relationship with his family and live a productive and meaningful life in Australian society.

19. Mr Stretton is now in the Triple Care Farm after-care program, which will continue for around six months.

20. General deterrence is always relevant in relation to offences such as burglary. which are both serious and generally the subject of at least some forethought. It is clear that Mr Stretton also needs personal deterrence. On the other hand, given Mr Stretton's youth, his rehabilitation must be the prime object of sentencing. In particular, this suggests that further custodial time should be avoided if at all possible.

21. As noted, Mr Stretton entered fairly early guilty pleas and there will be a sentencing discount to recognise this.

22. Mr Stretton, please stand. I record convictions on one charge each of attempted aggravated burglary, aggravated burglary and theft. I also note the scheduled offence of common assault and I have taken it into account in sentencing you for the attempted aggravated burglary.

23. I note first that the attempted aggravated burglary was committed in breach of a good behaviour order made in relation to the earlier offending that I have mentioned, and under s 108 of the Crimes (Sentence Administration) Act 2005 (ACT), I formally take no further action in relation to that good behaviour order.

24. I now sentence you to imprisonment as follows:

(a) for the attempted aggravated burglary, 12 months imprisonment, reduced from 16 months;

(b) for the aggravated burglary, 15 months imprisonment, reduced from 20 months; and

(c) for the theft, six months imprisonment, reduced from eight months;

and the specified reductions are obviously for the pleas of guilty.

25. The aggravated burglary sentence and the concurrent theft sentence will start to run three months after the attempted aggravated burglary sentence, giving a total sentence of 18 months. The sentence will be backdated to 21 December 2013 to take account of time in custody, and so it will run until 20 June 2015.

26. The sentence will be suspended with effect from today and I now order you to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 18 months. The good behaviour order is subject to the conditions that:

(a) you accept the supervision of ACT Corrective Services and obey all reasonable directions of the DirectorGeneral, or delegate, and

(b) that you undertake such counselling, courses, programs or treatments as directed by your supervising officer.

27. You will be given a written copy of the good behaviour order, and it will be explained to you by the court officials. In short, what it means is that for the next 18 months, Mr Stretton, you need to keep out of trouble, keep in close contact with Corrective Services and do as you are told by your supervisor. If you commit another offence during the next 18 months, or if you do not comply with other good behaviour order conditions, you may find yourself back before this court to be re-sentenced for these current offences. You need to understand, Mr Stretton, and this is very important, that you have still got 14 months of the current sentence left that you could be required to serve in fulltime custody. And if you turned up back here having committed more of the same sorts of offences, then that might well be the outcome.

28. So you really need to be absolutely determined to keep off drugs and perhaps, even more importantly, to keep away from other people for whom criminal activity has sadly become just a normal way of life. You are still at a point where you can leave that behind and make a much more satisfactory life for yourself, and I really do hope you can do that.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.

Legal Aid ACT (Offender)