R v Taylor [2015] ACTSC 122

Effective sentence of three years and 10 months' imprisonment.

CRIMINAL LAW - Sentence - property offences - dishonesty offences - burglary - theft - dishonestly take or drive a motor vehicle without consent - possess a drug of dependence - possess prohibited substance - drive while disqualified - unauthorised possession of firearm-- early guilty plea - discount - rehabilitation - protection of the community

Crimes Act 1900 (ACT) s 382(1)

Crimes (Sentencing) Act 2005 (ACT) ss 7, 16(2), 33(1), 35

Criminal Code 2002 (ACT) ss 308, 311, 318(1), 318(2)

Drugs of Dependence Act 1989 (ACT) ss 169(1), 171(1)

Firearms Act 1996 (ACT) s 43(1)

Prohibited Weapons Act 1996 (ACT) s 5

Road Transport (Driver Licensing) Act 1999 (ACT) ss 32(1), 32(5)

Douglas v The Queen (1995) 56 FCR 465

R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327

R v Scheele [2014] ACTSC 317

Legal Aid ACT (Offender)

SCC 235 of 2014; SCC 13 of 2015; SCC 14 of 2015

1. The offender adheres to pleas of guilty to the following offences.

(a) Between 5 and 9 June 2014 - burglary with intent to commit theft, contrary to s 311 of the Criminal Code 2002 (ACT) (Criminal Code). The maximum penalty is 14 years' imprisonment and/or a fine.

(b) Between 5 and 9 June 2014 - theft, contrary to s 308 of the Criminal Code. The maximum penalty is 10 years' imprisonment and/or a fine.

(c) Between 5 and 9 June 2014 - dishonestly take a motor vehicle without consent, contrary to s 318(1) of the Criminal Code. The maximum penalty is five years' imprisonment and/or a fine and upon conviction the sentencing court may make an order disqualifying the offender from holding or obtaining a driver licence for a period that it considers appropriate: s 16(2) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).

(d) On 11 June 2014 - possess a drug of dependence (methylamphetamine), contrary to s 169(1) of the Drugs of Dependence Act 1989 (ACT) (Drugs of Dependence Act). The maximum penalty is two years' imprisonment and/or a fine.

(e) On 11 June 2014 - possess prohibited substance (cannabis), contrary to s 171(1)(a) of the Drugs of Dependence Act. The maximum penalty is a fine of $150.

(f) On 11 June 2014 - drive while disqualified as a repeat offender, contrary to s 32(1)(b) of the Road Transport (Driver Licensing) Act 1999 (ACT) (Driver Licensing Act). The maximum penalty is one year's imprisonment and/or a fine and upon conviction the offender is automatically disqualified from holding or obtaining a driver licence for a period of 24 months or, if the courts orders a longer period, the longer period: s 32(5)(b) of the Driver Licensing Act.

(g) On 11 June 2014 - unauthorised possession of firearm, contrary to s 43(1)(a)(iii) of the Firearms Act 1996 (ACT). The maximum penalty is five years' imprisonment.

(h) On 11 June 2014 - dishonestly drive a motor vehicle without consent, contrary to s 318(2) of the Criminal Code. The maximum penalty is five years' imprisonment and/or a fine.

2. In relation to the offence of unauthorised possession of a firearm, the offender agrees to the following additional matters being taken into account on sentence:

(a) 24 May 2014 - possess knife in a public place, contrary to s 382(1) of the Crimes Act 1900 (ACT). The maximum penalty is six months' imprisonment and/or a fine.

(b) 24 May 2014 - unauthorised possession of prohibited weapon (knuckle duster), contrary to s 5 of the Prohibited Weapons Act 1996 (ACT). The maximum penalty is five years' imprisonment and/or a fine.

3. The offender was arrested on 11 June 2014 and has been in custody since that date. In relation to the offences in [1] (a) to (f) above, it is agreed that the pleas were entered at the earliest reasonable opportunity. Pursuant to s 35 of the Sentencing Act, the appropriate discount on sentence is 25%.

4. There is disagreement regarding an appropriate discount on sentence for matters (g) and (h). In relation to the unauthorised possession of a firearm, the offender was initially charged with a more serious matter. However, the defence took the view that the charge was inappropriate because it could not be made out in accordance with the decision of Penfold J in R v Scheele [2014] ACTSC 317 (currently subject to an appeal). Ultimately, the Crown accepted the approach taken by the defence and offered the lesser charge. The offender immediately entered a plea of guilty to the charge. In those circumstances, the offender is entitled to the usual maximum discount of 25% for this offence. In relation to the offence of dishonestly drive a motor vehicle without consent, the plea of guilty was entered approximately seven months after the charge date in the Magistrates Court and after the date for the trial had been fixed. The appropriate discount is 15%.

5. The offender has a long criminal history. His adult criminal history contains many offences of dishonesty, including 13 prior matters of burglary and 14 prior matters of theft. There are also numerous prior driving offences.

6. In 2002, the offender received suspended sentences for offences of burglary and theft. The following year, he received a sentence of periodic detention for similar matters. The periodic detention order was cancelled and he received a partly suspended sentence.

7. In 2005, burglary and theft matters resulted in sentences of imprisonment. In 2007, burglary and receiving matters resulted in suspended sentences. In 2008, a good behaviour order was cancelled and the offender was required to serve a period of imprisonment. He received a sentence of imprisonment for dangerous driving in 2011.

8. In 2012, the offender came before Higgins CJ on several occasions in relation to a number of offences of dishonesty, including burglary. Subsequently, he came before the Magistrates Court in relation to an offence of dangerous driving. As a result of the sentences imposed by Higgins CJ and the Magistrates Court, the offender was subject to an effective period of imprisonment from 22 July 2010 to 14 January 2016.

9. He was released to parole on 15 February 2013, having served almost two years and seven months' imprisonment. About eight months later, on 22 October 2013, parole was cancelled because of drug use. He remained in custody until 9 April 2014. He was then released to parole. Within the ensuing two months, he committed the offences that are the subject of these proceedings.

10. On 11 June 2014 he was arrested in relation to the subject offences. He has been in custody since that time. Parole was revoked on 8 July 2014. Those sentences are due to expire on 11 October 2016.

11. I am mindful that, although the offender is currently subject to a period of imprisonment, if it was not for the offences for which I am to sentence him, he could have applied for release to parole any time after 11 June 2014.

12. At the time that he committed these offences, the offender had only recently been released from custody. He was on parole for matters of the same nature as those committed in June 2014, namely dishonesty and driving matters.

13. The fact that the offender was on conditional liberty at the time that these offences were committed, the recency of his release to parole, and the nature of the matters for which he was on parole are very significant aggravating features.

14. With respect to the additional offences, at about 8.00am on 25 May 2014, police spoke to the offender, who was seated at a bus stop in Isabella Plains. He agreed to be searched by the police officers. On the search a pocket knife was located, concealed under the waist band of his pants.

15. The offender said, "I forgot it was there." When asked to explain why he was carrying the knife, he answered, "For protection". A blue bum bag and a black pack were also searched. A knuckle-duster was located in the backpack.

16. With respect to the offence of burglary, between the morning of 5 June and the afternoon of 9 June 2014 the offender entered a home in Macgregor. The owners were absent during this period. The offender entered by forcing a lock at the rear of the premises. The time of day is unknown. For the purposes of sentencing, I assume that entry occurred during daylight hours.

17. Inside the residence, the offender stole a number of items, including some jewellery of very great monetary and sentimental value and an Australian Federal Police (AFP) uniform. One of the occupants of the residence was an AFP officer. The removal of these items constitutes the offence of theft.

18. It transpires that the offender had a prior acquaintance with the residents. He had gone to school with their son. However, there is no evidence that he knew either that he was stealing from their residence or that one of the occupants was an AFP officer. However, one would think that he would have realised that a resident was an AFP officer when he found the police uniform. There is no suggestion that he stole the police uniform for any nefarious purpose.

19. In addition to removing the items mentioned, the offender took a Holden vehicle valued at about $10,000.00 from the premises. That is the subject of the charge of dishonestly take a motor vehicle without consent. Later, the vehicle was found abandoned, locked and undamaged. Some items had been removed from the vehicle. Although the offender was disqualified from driving at the relevant time, he has not been charged with driving while disqualified for this particular incident.

20. Excluding the value of the vehicle, the agreed value of the items taken from the premises was approximately $24,000.00.

21. One of the owners of the premises read a victim impact statement. The offences caused great distress to the victims. In addition to the expected distress and upset associated with an invasion of one's home, there was the distress associated with the loss of items of great sentimental value. For example, one piece of jewellery had been passed down to the owners from a great grandmother and other pieces had been passed down from a great aunt. These items are irreplaceable. None of the items has been recovered.

22. At about 11.00am on 11 June 2014, police commenced physical surveillance of the offender. The offender was driving a Holden Commodore station wagon that had been stolen about two weeks earlier. This is the subject of the offences of dishonestly drive a motor vehicle without consent and drive while disqualified as a repeat offender.

23. When police officers identified themselves to the offender, he ran away. A short time later, they located him hiding under a staircase at premises in McKellar. When the offender was searched, police located 1.7 grams of cannabis in the pocket of his jeans and a small box containing 0.128 grams of methylamphetamine. The possession of these substances is the subject of the offences of possess prohibited substance and possess substance of dependence respectively.

24. On searching the vehicle, police found a six millimetre BB calibre pellet pistol with a magazine. This is subject of the unauthorised possession of firearm offence.

25. In assessing the objective seriousness of the burglary matter, the New South Wales guideline judgment of R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327 provides some assistance. It addresses matters such as the nature of the premises and the nature of the items stolen, including whether they had sentimental value. However, unlike in the ACT, the offence of burglary in New South Wales involves theft. In this jurisdiction, the theft is a separate offence. Putting aside the theft aspect of the considerations addressed in Ponfield, the Crown submits, and I agree, that the relevant considerations place the offence of burglary in the low to mid-range of objective seriousness.

26. I also accept that the theft offence assumes considerable objective seriousness because of the monetary value and, more importantly, the sentimental value, of the items that were stolen and the impact of the theft on the victims. The taking of the vehicle was a typical offence of its nature and, in itself, is of no great objective seriousness, particularly as the vehicle was recovered undamaged shortly afterwards.

27. The BB calibre pellet pistol that was the subject of the unauthorised possession of firearm offence was examined by a ballistics expert employed by the AFP. It was found to be capable of discharging a projectile. The projectile that could be discharged was a BB pellet which, in most circumstances, is incapable of doing significant damage. However, the photographs illustrate that the firearm has a threatening appearance and the wielding of such a firearm would be likely to cause fear. The firearm could be easily concealed. Further, I note that the firearm was located with a magazine. The possession of firearm offence occurred about two weeks after the offender committed the additional offences of possessing the knife and unauthorised possession of the knuckle-duster. It provides a context for the possession of the firearm which is unsavoury. It paints a picture of the offender as someone who, at various times, possessed different items which could be used in a threatening manner.

28. The unauthorised possession of the firearm is a matter of significant objective seriousness. The additional offences are to be taken into account when the offender is sentenced for that matter. This is not by way of increasing the sentence that would otherwise have been imposed, but are significant in relation to sentencing purposes.

29. The offender is now 34 years of age. He has had no significant history of employment

30. The offender has a long history of drug abuse. When he gave evidence, he indicated that he resorted to drugs as an escape from problems in his early life. However, those problems have not been the subject of detailed evidence. He began to use cannabis at 13 years of age. At 15 years of age he abused amphetamines. At the time of the subject offences he was a daily heavy user of ice. He attributes the commission of the offences to this abuse of ice. The offender has abused heroin since 18 years of age. He informed the author of the CADAS Assessment Report that he quickly relapses into heroin abuse upon release from custody. Since the age of about 25 years, he has abused benzodiazepines, consuming between five and 20 tablets a day.

31. The offender has attempted rehabilitation on a number of occasions, with some success. In 2001, he completed the Salvation Army Oasis Bridge Program. He says that he remained free from drugs for the ensuing 12 months. He said that he relapsed as the result to upset arising with his then partner. In 2004, he completed a five month program at Bennelong Haven. In 2007, he almost completed a program at Lyndon Therapeutic Community. He left five days before graduation. He believes that he was unfairly expelled; he was taking prescribed medication which put him in breach of the rules of that program. In 2014, the offender attended the Karralika Nexus Program for a period of about six weeks. He did not complete the Program because he was involved in an altercation on Anzac Day 2014, which resulted in his hospitalisation.

32. When explaining his drug history and inability to remain drug free for long periods of time after ongoing rehabilitation, the offender had a tendency to blame others and an inability to accept full responsibility for his relapses.

33. Other subjective circumstances are that, at 19 years of age, when was riding a bike, the offender was hit by a car and suffered a head injury. In 2013, while in custody, he suffered spinal and other injuries. On Anzac Day in 2014, he was attacked and injured while he was protecting a woman. The CADAS Report discloses that the offender has issues with pain management. As a result, he wears a buprenorphine patch.

34. The offender was diagnosed with attention deficit disorder as a child. While he was at the Alexander Maconochie Centre, a psychiatrist with ACT Forensic Health Services diagnosed the offender as suffering from bipolar disorder. He is currently being medicated for that condition, with good effect. At one stage the offender was taking methadone. He ceased opiate treatment earlier this month.

35. The Pre-Sentence Report (PSR) indicates that the offender needs treatment for his drug dependency and for his mood disorder. It indicates that the offender has some insight into the impact of his actions on the victims. The author of the PSR says (and I agree with this assessment) that it is difficult to gauge the offender's motivation to rehabilitate and the depth of his commitment to rehabilitation. On the one hand, he has taken a number of steps to place himself in a good position to undertake rehabilitation. On the other hand, he has not always taken up every opportunity that has been afforded to him. The author of the PSR assessed the offender as having a high risk of re-offending. The offender's history of drug relapse and associated relapse into criminal conduct certainly supports that assessment.

36. In submissions, defence referred me to the decision in Douglas v The Queen (1995) 56 FCR 465. In that case, the Court said that the age of an offender when he or she became addicted to drugs and the degree of judgment open to the offender at that age is relevant in evaluating the extent to which the offender should be punished for the resulting criminal conduct; drug addiction from an early age may inform an assessment of moral culpability.

37. I agree with that statement. It is just a way of expressing how individualised justice may apply; that drug dependency may inform moral culpability, depending on the circumstances in which an offender became addicted. In this case, the offender commenced his drug dependence while an adolescent, at an age when he could not make a mature decision about the use of drugs. I accept the submission that "once an addict, always an addict". However, I am also mindful that the offender is now 34 years of age. He has had multiple admissions to residential rehabilitation establishments. He has been in custody; an environment which discourages drug-taking. Despite those opportunities, the offender has, on many occasions, relapsed into drug dependency. As an adult of 34 years of age he has to accept responsibility for his relapses.

38. I note that, pursuant to s 33(1)(p) of the Sentencing Act, a sentencing court is to take into account, "whether the offender was affected by alcohol or a controlled drug when the offence was committed and the circumstances in which the offender became affected."

39. The Crown submitted that I should be sceptical about the offender's prospects of rehabilitation. I am sceptical based on his history. However, the history also shows that, on a number of occasions, he has achieved significant success with rehabilitation. He has been able to remain within strict programs for periods of up to 10 months at a time. For a number of periods in his life, he has remained drug-free. That suggests a capacity to remain drug-free and avoid relapse in the future. One hopes that, as he is now in his 30s, his maturity will reinforce his future commitment to sustaining a drug-free lifestyle.

40. In sentencing the offender, I must consider the matters which are relevant and known to me under s 33 of the Sentencing Act. I believe that I have referred to most of the relevant considerations above.

41. Section 33(1)(i) of the Sentencing Act requires that the sentencing court consider "the degree of responsibility of the offender for the commission of the offence." I accept that the offender has accepted a significant degree of responsibility for the commission of all offences. That was clearly indicated by his early pleas of guilty. In giving evidence, he attempted to articulate that he accepts responsibility and experiences remorse. I accept that he has taken significant responsibility for his conduct. This is also relevant with respect to s 33(1)(w) of the Sentencing Act, which requires that the sentencing court take into account "whether the offender has demonstrated remorse."

42. I take into account current sentencing patterns in the ACT. Although 33(1)(za) of the Sentencing Act refers to "current sentencing practise", a different consideration, it is accepted that it is relevant for a sentencing court to take into account current sentencing patterns. Despite the maximum available penalty for burglary in the ACT being 14 years' imprisonment, current sentencing patterns showed that offenders frequently receive sentences of between 18 months and two and a half years' imprisonment.

43. In sentencing the offender I am also required to consider the sentencing purposes set out in s 7 of the Sentencing Act. It is important to ensure that the offender is adequately punished. Specific deterrence is a relevant consideration. So is general deterrence, although one wonders about the efficacy of general deterrence in cases of drug addicted offenders who commit impulsive offences of burglary to fund their habit.

44. Protection of the community is an important consideration in the case of this offender. The offender has a long history of being released from custody and then re-offending in the same way. Promotion of rehabilitation is a related consideration. The only way in which the community will be protected from the offender is if he is rehabilitated. Accountability, denunciation and recognition of the harm done to the victims of the burglary as well as to the community through the commission of offences of this nature are particularly important in this case.

45. Rehabilitation is a very important consideration when the Court comes to determine the appropriate length for a non-parole period. The best approach to assessing this offender's capacity for rehabilitation is to leave a high degree of discretion with the Sentencing Administration Board. The Board is best placed to determine whether the offender is ready to be released to undertake a strict program of rehabilitation or whether the risk to the community is too high.

46. In imposing the non-parole period, I also need to have regard to the overall picture of imprisonment. The offender has been in custody for most of the period since July 2010. He was at large in the community for eight months, from February to October 2013, and again for just over two months from April to June 2014.

47. In determining the starting date for the sentences I have had regard to the overall picture of imprisonment. But for the subject matters, the offender could have sought and been granted parole since the end of 2014. I take into consideration that he spent the period 11 June to 8 July 2014 in custody solely in relation to the subject offences.

48. It is not seriously disputed that the only appropriate sentence is one that involves full-time imprisonment. Defence requested that I give consideration to alternatives to full-time imprisonment but I consider that alternatives to be out of the question.

49. In fixing the accumulation of the sentences, I have taken into account the total picture of imprisonment. While the offences committed between 5 and 9 June 2014 are completely separate from the offences committed on 11 June 2014, there is a close correlation in time and all the offences resulted from the offender's relapse.

51. For the offence of dishonestly drive a motor vehicle without consent on 11 June 2014, the starting point is 18 months' imprisonment, less approximately 15%. I impose a sentence of 15 months' imprisonment from 11 June 2015 to 10 September 2016.

52. For the offence of drive while disqualified on 11 June 2014, the starting point is six months' imprisonment, less 25%. I impose a sentence of four months and two weeks' imprisonment from 11 June 2015 to 24 October 2015.

53. For the offence of unauthorised possession of firearm on 11 June 2014, taking into account the additional offences committed in May 2014, the starting point is two years' imprisonment, less 25%. I impose a sentence of 18 months' imprisonment from 11 September 2015 to 10 March 2017.

54. For the offence of possess methylamphetamine committed on 11 June 2014, I impose seven days' imprisonment from 11 June to 17 June 2015.

55. For the offence of possess cannabis committed on 11 June 2014, the offender is fined $50.00.

56. For the offence of burglary with intent to commit theft between 5 and 9 June 2014, the starting point is three years' imprisonment, less 25%. I impose a sentence of two years and one month's imprisonment from 11 June 2016 to 10 July 2018.

57. For the offence of theft committed between 5 and 9 June 2014, the starting point is three years' imprisonment, less 25%. I impose a sentence of two years and one month's imprisonment from 11 March 2017 to 10 April 2019.

58. For the offence of dishonestly take a motor vehicle without consent committed between 5 and 9 June 2014, the starting point is 12 months' imprisonment, less 25%. I impose a sentence of nine months' imprisonment, from 11 March 2017 to 10 December 2017.

59. This is an effective sentence of three years and 10 months' imprisonment from 11 June 2015 to 10 April 2019. It adds a period of imprisonment of two years and six months to the previously existing expiry date for sentences.

60. I fix a non-parole period to expire on 10 May 2017.

I certify that the preceding sixty [60] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.