R v T M [2014] ACTSC 394

Crimes (Sentencing) Act 2005 (ACT)

Guy v Anderson and Telford (No 2) [2013] ACTSC 245

R v Campbell [2010] ACTCA 20

R v PM [2009] ACTSC 24

1. T M was born on 28 October 1995 and is aged 19. He appears for sentence, having pleaded guilty to five offences at the first available opportunity.

2. The offender committed theft and burglary offences on 4 September 2013 at 14 Gilruth Street, Hackett. He was then a young person. He entered the home of Mr and Mrs Door through a secure rear sliding door, using a tool to open the door. He entered every room of the house, threw items around each room and accessed cupboards and drawers. He stole 136 items, most of which were items of jewellery. The items were valued at $60,311.14.

3. On 20 September 2013, the offender committed three further offences: aggravated burglary, attempted aggravated burglary, and going equipped for theft. On this occasion, he was accompanied by a cooffender (who has been sentenced for his part in the matter). They entered a house in Nelson Place, Curtin, went to a bedroom, ransacked a wardrobe, and stole a black jewellery box and jewellery to the value of $1500.

4. Shortly afterwards, they went to a nearby house, number 16, Nelson Place, where they removed the screen from a room at the south eastern corner and attempted to open a window. On finding the window could not be opened properly, they left.

5. An attempted burglary was then reported. Police attended. The cooffender, who was carrying a bag, ran off before being apprehended. This offender was however arrested. He was found to have with him a flattipped screwdriver and a grade multi tool. That item is the subject of the offence of "going equipped for theft", an offence he has asked me to take into account when sentencing him in respect of a later offence, one of aggravated burglary.

6. The offence of aggravated burglary occurred on Wednesday, 23 July 2014. On the evening of that day the offender robbed an off-duty bus driver, who had just done him a great favour by giving him a lift in his bus. At the end of the journey, the offender approached the driver with a redhandled Stanley knife and asked him for his money, saying "I've got a knife and I'll stab you but I don't want to as you're a nice fellow". The victim, totally understandably, panicked, and was in fear for his safety. So he gave him a bag containing a day's takings, consisting of $59.20.

7. The offender was later arrested. This offence, of course, occurred when he was on bail. He was intoxicated at the time. Committing the offence and being intoxicated were both breaches of his bail conditions. When he was arrested, police found he was in possession of $59.20 and a Stanley knife.

8. NRMA Insurance Ltd is the insurer of one of the houses burgled and it requires reparation of $62,809.14. ACTION Buses requires reparation of $573.90. I have been asked to make reparation orders.

9. All offences were committed while he was on conditional liberty. Those on 4 September and 20 September 2013 were committed after he had been dealt with by Magistrate Fryar on 4 June 2013 for a number of offences.

10. Because he was sentenced by Magistrate Fryar to six months' imprisonment for an attempted aggravated robbery, and was in breach of Her Honour's good behaviour order by reason of these offences, I am required to sentence him to the remainder of his sentence which would otherwise have been suspended.

11. In respect of the matter for which I am to resentence the offender for the remainder of the sentence imposed by Magistrate Fryar, Mr Sabharwal, who appears for the offender, agrees that he was in breach of the good behavior order. As will appear below, I consider it appropriate that I sentence him to serve the remaining three months of imprisonment. I see no utility in resentencing him in any other way.

12. The offender has an extensive criminal history as a young offender, mostly for the same type of offences as those for which I am to sentence him.

13. The offender had a deprived childhood. His mother died when he was young and his father took no part in his upbringing. He spent much of his childhood in care, going from one family to another. He attended a large number of schools.

14. Since he has been about 13, he has lived in residential units by himself or with others. At school, he was a disruptive young man and used drugs, including alcohol, cannabis, ecstasy, speed and gas. When interviewed by those who prepared reports about him, he could not see cannabis as a problem.

15. He has three sisters. He has said that he feels he is a disappointment to his sisters.

16. In 2012 he was involved in a one vehicle collision with a tree and suffered severe injuries. He was left with a diffuse axonal brain injury, a fracture to the base of the skull, and a broken jaw. He subsequently underwent surgery for the jaw. He now has shortterm memory problems. He has had to undergo a considerable amount of rehabilitation to regain the use of the left side of his body. Those injuries and their sequelae I take into account, as will later appear.

17. When the first of these offences put him into an institution called Mimbari, he complied well with custodial requirements. He underwent some vocational courses. He completed the Year 10 certificate.

18. In evidence was a neuropsychology report of 31 May 2012, which concluded that the brain injury had had a significant impact on his nonverbal intellectual functioning, and was complicated by his complex premorbid psychosocial history, and that without consistent structure and support, the impairments would increase his vulnerability to making poor choices, decisions and judgments.

19. When a Presentencing Report was updated in November 2013, he was asked about the aggravated burglary and the attempted aggravated burglary. His explanation for committing those offences was that he owed $1300 to Centrelink. He did say, however, that the offences were stupid and that he realised the victims would have been devastated. He said he would not do that again. In the Presentencing Report of 12 August 2014, he is noted in relation to the aggravated robbery as having seemed annoyed and unaware of the severity of the offence. He apparently displayed no empathy for the victim. But the report's author concluded that this was reflective of cognitive incapacity due to his brain injury.

20. The cooffender in relation to the two offences on 20 September 2013, Mr Cameron, was sentenced by Burns J on 9 May 2014. At that time, this offender was 17 and Mr Cameron 19. Mr Cameron had a number of convictions on his record. He received a 25 per cent reduction for pleading guilty. For the attempted aggravated burglary, he was convicted and sentenced to 13 months' imprisonment. For the aggravated burglary, he was convicted and sentenced to a term of imprisonment of 21 months. With concurrency, the sentence imposed on him was two years, three months and he was ordered to serve almost 21 months before being eligible for parole.

21. I consider their roles in those offences were roughly equal. But because this offender was a young offender at the time, parity does not strictly apply. Whilst I will take those sentences into account, I take the view that I should deal more leniently with this offender.

22. The Crown submitted (and Mr Sabharwal did not disagree with this), that the 4 September 2013 burglary was greater in objective criminality because it was on domestic premises and occurred at a time when people might reasonably have been expected to be there. There was an entry by force and there was the ransacking. There was the theft of a large number of items. I accept the Crown's submission and I find that to have been close to a midrange example of that offence.

23. The aggravated burglary was aggravated by the same factors, including having occurred in domestic premises in daylight when people might be expected to have been at home. There was damage to a window and some planning. Again, I find the offence to have been towards the midrange. The attempted aggravated burglary involved some planning. Again, that was a domestic building and there was a broken screen. But I consider the offence to have been a relatively low range matter.

24. As to the aggravated robbery, there was the use of the knife, the making of the threat and the fact (as I find) that the victim was in a vulnerable class. As the Crown conceded, however, it was a somewhat spontaneous matter. There was no significant planning and only a small amount stolen. I regard that offence as a little above low range.

25. When sentencing for this offence, I have considered R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, but it is, of course, not binding on this court. What aggravates this offence is that he was on bail at the time.

26. The offences other than the aggravated robbery occurred when the offender was a young offender. I take heed of section 7 of the Crimes (Sentencing) Act 2005 (ACT). I also take heed of sections 133C, 133D and 133G of that Act, noting in the case of a young offender that the needs of rehabilitation are to have greater weight. I note in that respect the helpful judgment of Refshauge J in R v PM [2009] ACT SC 24, particularly at [52]-[54], as to the relevant principles in sentencing young offenders.

27. Since he was a young offender when most of the offences occurred and only 18 when the aggravated robbery occurred, and by reason of his brain damage and impoverished childhood, I do propose to apply leniency. I consider he needs help with his illicit drug use and he needs help with vocational training. I consider his brain damage will make it hard for him to resist his old ways. He did plead guilty early. I do have reservations about his rehabilitation, but I find that he has reasonable prospects of rehabilitation, by reason of his youth, an important factor here.

28. I have noted his statements of contrition. Whilst I have some reservations about them, I consider they do show a little bit of insight. His record of breaching bonds and the like is not a good sign but, again, his youth is of assistance in explaining that conduct.

29. As to the offence I am asked to take into account in relation to the aggravated burglary, going equipped for theft, I take it into account, bearing in mind the observations of the Court of Appeal on this issue in R v Campbell [2010] ACTCA 20 at [50]. As to the matter for which I am to deal with him for the breach of bond imposed by Magistrate Fryar, I bear in mind the need to treat the breach appropriately: Guy v Anderson and Telford (No 2) [2013] ACTSC 245 at [31].

30. The offender has been in custody since 5 March 2014. In respect of the attempted aggravated robbery for which Magistrate Fryar sentenced the offender, I sentence him to serve the three months' imprisonment which would otherwise have been suspended. He is to serve that period of imprisonment from 5 March 2014 to 4 June 2014. As to the theft count, he is sentenced to nine months' imprisonment, which I impose after a discount of three months for the plea of guilty. That is to date from 5 April 2014 to 4 January 2015.

31. On the count of burglary, the offender is sentenced to 12 months' imprisonment after a discount of four months for the guilty plea. That sentence is to date from 5 July 2014 to 4 July 2015. On the aggravated burglary, after a discount of three months for the guilty plea, he is sentenced to 18 months' imprisonment to date from 5 January 2015 to 4 July 2016. On the attempted aggravated burglary, after a discount of two months for the guilty plea, he is sentenced to 12 months' imprisonment to date from 5 January 2016 to 4 January 2017. On the aggravated robbery, after a discount of four months for the guilty plea, he is sentenced to two years' imprisonment to date from 5 September 2016 to 4 September 2018. I take into account the offence of going equipped for theft with the aggravated burglary count.

32. The total period of imprisonment is four years and six months, and the offender is to serve a minimum period of two years and six months. After that period he will be eligible to apply for parole. I order the offender to pay reparation of $573.90 to ACTION Buses and $62,809.14 to NRMA Insurance Ltd.

I certify that the preceding 32 numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Walmsley.