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[2020] ACTSC 28
Supreme Court of the ACT
2020-02-10
Mossop J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - charges relate to breaking into four homes - burglary and aggravated burglary - theft - obtain property by deception - assault - possess knife - possess offensive weapon - proceeds of crime to support methamphetamine use - very poor criminal history - guarded prospects of rehabilitation but recent commitment to rehabilitation - short non-parole period
Crimes Act 1900 (ACT), ss 26, 381(1), 382(1)
Crimes (Sentencing) Act 2005 (ACT), s 7
1. The offender, Ronald Tracey, has pleaded guilty in the Magistrates Court to the following indictable offences:
(a) one count of obtaining property by deception contrary to s 326 of the Criminal Code 2002 (ACT), the maximum penalty being 10 years' imprisonment, 1000 penalty units or both (CC2019/2798);
(b) one count of aggravated burglary contrary to s 312 of the Criminal Code, the maximum penalty being 20 years' imprisonment, 2000 penalty units or both (CC2019/3448);
(c) two counts of theft contrary to s 308 of the Criminal Code, the maximum penalty being 10 years' imprisonment, 1000 penalty units or both (CC2019/6609, CC 2019/8135); and
(d) two counts of burglary contrary to s 311 of the Criminal Code, the maximum penalty being 14 years' imprisonment, 1400 penalty units or both (CC2019/8904, CC2019/8085).
2. He has also pleaded guilty to the following related summary offences:
(a) one count of possessing a knife without a reasonable excuse contrary to s 382(1) of the Crimes Act 1900 (ACT), the maximum penalty being six months' imprisonment, 10 penalty units or both (CC2019/2800);
(b) one count of assault contrary to s 26 of the Crimes Act, the maximum penalty being two years' imprisonment (CC2019/3444); and
(c) one count of possession of an offensive weapon contrary to s 381(1) of the Crimes Act, the maximum penalty being one years' imprisonment, a fine of $2000 or both (CC2019/8905).
3. The circumstances giving rise to the offences involve the offender entering into four different homes without permission of the residents.
4. On the morning of 8 February 2019 BL left his residence in Anthony Rolfe Avenue, Gungahlin, to go on holiday. He returned on 22 February 2019. He had left his residence tidy, locked and secure. He returned to find it with a mess of items and clothing on the floor. Drawers and cupboards were left open and the contents of the desk in the study and bedroom drawers had been tipped onto the floor. BL noticed that the door had been pried open, splintering the door frame at the handle and deadlock. He observed washing powder on the bedroom carpet, with a bottle of dishwashing detergent and a bottle of washing powder nearby. Those items had been left under the kitchen sink prior to him going on holiday. A pear pendant, two gold chains and a small cloth bag containing $300 in gold coins had been taken. Police attended and swabbed a red brown stain suspected to be blood on the dishwashing liquid bottle. Forensic analysis provided extremely strong support for the proposition that the offender was the source of the DNA profile obtained. The stolen items were not recovered and the offender was not known to BL. These facts give rise to charges CC2019/8085 (burglary) and CC2019/8135 (theft).
5. Between 22 and 23 February 2019, a burglary occurred at an address in Reid. A handbag containing a Visa Card and a Mastercard belonging to TD was stolen, along with other items. A series of transactions totalling $617.76 were subsequently made using the two cards. The transactions included purchases at Liquorland in the Canberra Centre, Coles Supermarket, L'Occitane Canberra Centre and purchases of Calvin Klein underwear. Police later viewed the CCTV footage from Liquorland Canberra Centre which captured a person identified as the offender making a transaction on 23 February 2019. At no time did TD give the offender permission to use her cards to make any purchases. This gives rise to charge CC2019/2798 (obtaining property by deception).
6. At approximately 4:45pm on 2 March 2019, LT, DL and EL returned to their residence in Foveaux Street, Ainslie. The property had been secured prior to leaving at around 3:00pm to go shopping. At the front door of the residence EL observed a person in the house through a window. He alerted the others to this. They were unloading the shopping. EL attempted to unlock the front door while LT went around the back of the house. As he got to the back of the house, he was met by the offender who was wearing a bright blue windbreaker and had three backpacks, including a grey mountain design backpack. He was on a blue bike. This is the offence of burglary (CC2019/8904).
7. LT told the offender to stop. The offender pulled out a yellow box cutting knife and said words to the effect of "do you wanna go" and "I'm going to fuck you up." This is the offence of possessing an offensive weapon (CC2019/8905).
8. LT backed away from the offender, who rode out of the backyard and proceeded to ride in the direction of Limestone Avenue. LT and EL followed the male in their car down Limestone Avenue and towards the Ainslie Football Club before they lost sight of him.
9. LT told police that it appeared the offender had climbed up the side of the house and through the bathroom which was located on the landing between the first and second floor. The house had been ransacked and most cupboards had been opened and searched. There was no damage to the house. The residents identified that a gold necklace and a mountain design brand backpack were missing from the premises. None of the residents gave the offender permission to enter the property or take belongings from it. LT identified the offender in a photoboard. These facts give rise to the charge of theft (CC2019/6609).
10. Later that day (2 March 2019) at approximately 6:30pm, LI, DI and their six-year-old son returned to their residence in Braddon. The house had been secured prior to them leaving. DI noticed that his bike was in the front yard of the residence. LI noticed that her bike was in the yard. LI noticed that the front bedroom window as open. When LI, with her son, was directly in front of the screen door, she saw a male inside that appeared to be crouching over in the front hallway. She noticed that her sewing cabinet was askew, and the male appeared to be accessing it. That male was later identified to be the offender.
11. LI yelled out to DI words to the effect of "we're being robbed". This caused the offender to run towards the back of the house. DI moved towards the rear of the property via the rear gate. LI called the police. DI reached the rear of the yard as the offender was leaving the residence through the backdoor. DI confronted the offender in the yard and said words to the effect of "what are you fucking doing in my house?" The offender replied, "fuck you, you dog."
12. DI noticed that the offender was carrying a number of bags and backpacks belonging to himself and LI. DI told the offender to give his possessions back. The offender responded with words to the effect of "I'll stab you dog" and "I will do you, ya dog." DI saw that the offender was holding a large yellow handled flat head screwdriver. While making the threats, he was making a stabbing gesture with the screwdriver. DI yelled out that the offender had a screwdriver. The offender continued to move from the rear yard to the front yard while carrying the bags. He walked backwards while being followed by DI who remained at a safe distance, however every time he attempted to get closer the offender made a stabbing motion with the screwdriver. The offender had difficulty getting through the gate due to the number of bags that he was carrying.
13. As DI made a further demand to drop the bags, the offender dropped one of the bags he was carrying, followed by another shortly after. The offender continued moving backwards and facing DI, before pushing over LI's bike which was leaning against the side gate. While trying to get through the side gate, the offender attempted to stab DI with the screwdriver. DI observed the screwdriver to be above the offender's head at that time. These facts gave rise to the aggravated burglary (CC2019/3448).
14. The offender walked down the driveway towards the road before heading south towards the city. DI followed the offender from a distance of approximately five to 10 metres behind him. DI again asked the offender to drop the belongings, and the offender dropped another bag, however he was still wearing a backpack. The offender walked into a nearby apartment complex, and DI maintained his observation of him. LI lost sight of the offender at this point and ended her phone call with police.
15. The offender became stuck in the entrance to the apartment block and again made a stabbing motion towards DI, saying "fuck you, you dog, I'm going to stab you." DI believed the offender was going to stab him, because the offender was approximately one metre away. DI backed away and the male entered into a construction site. This gives rise to the assault (CC2019/3444).
16. An examination of the victims' residence indicated that the offender had gained entry by forcing the main bedroom window open. The offender ransacked the whole house before placing a large amount of property into the bags that the offender was attempting to leave the yard with. The ransacking included emptying the contents of the fridge and freezer onto the floor. Police also located a suitcase which had been packed with a number of possessions, however this was left inside the residence near the door. The examination also revealed that the offender had forced his way into the garage via the garage window which was also ransacked before DI and LI's bikes were removed. The property located in the bags left behind was a significant amount of jewellery, identification material, bank cards, clothing and shoes. Both DI and LI identified the offender in photo boards.
17. At approximately 3:20am on 4 March 2019, police were conducting a foot patrol of Ainslie Avenue, Reid. Police observed a male ride past on a white bicycle, and immediately recognised the male as the offender. Police stopped the offender and arrested him. During a search of the offender, police located a black handled serrated knife, approximately 23cm long, in the waistband of the offender's pants. When asked why he had the knife, the offender stated "I don't know". This gives rise to charge CC2019/2800 (possess knife without reasonable excuse).
18. DI and LI, who were the victims of the burglary at residence four prepared victim impact statements and read them in court. Both of these indicated ongoing psychological consequences from the invasion of their home. They both record trauma arising from the threatening conduct of the offender towards them and the consequences of having their son involved in a traumatic and potentially violent crime. They record the sense of violation from having their home ransacked and a sense of a lack of security. They record their observations of the impact upon their son. DI records a change in his outlook on life and upon other people, particularly those less fortunate than himself.
19. All of these impacts are not unexpected impacts of the burglary of residential premises involving violence. The statement of the husband demonstrates how, in addition to the traumatising consequences of the criminal acts, exposure to crime such as this can have long-term adverse consequences upon society through increasing distrust and a reduction in empathy for disadvantaged people.
20. The burglary of the premises on Anthony Rolfe Avenue, Gungahlin (residence one) involved a burglary of residential premises. It involved forced entry causing damage to the property. It involved a methodical ransacking of the property to the extent that went beyond what was necessary to conduct a search. It is in the mid-range of objective seriousness for this offence.
21. Having regard to the scope of s 326 of the Criminal Code, the charge of obtaining property by deception involving a rolled up charge relating to a number of transactions on the credit card stolen from residence two, totalling $617.76, is in the low to mid‑range of objective seriousness.
22. The aggravated burglary on the premises in Foveaux Street, Ainslie (residence three) involved a residential as opposed to commercial or public building. It involved a burglary at a time when people were likely to be home, that is an afternoon on a weekend. It did in fact lead to an interaction with the residents. It is in the mid-range of objective seriousness.
23. The possession of the box-cutter with an intent to use it in an offence involving actual or threatened violence is in the mid-range of objective seriousness. Although the weapon is not the most serious, the intent was very clearly expressed.
24. The theft that occurred of a gold cross necklace and a mountain design backpack is, having regard to the scope of s 308, in the low-range of objective seriousness.
25. The aggravated burglary committed at Ijong Street in Braddon (residence four) is in the mid-range of objective seriousness and more serious than that of residence three. Not only did it involve a burglary of residential premises on the evening of a Saturday at which time persons may well be at home, it involved a methodical ransacking of the contents of the house and collection of the items intended to be stolen. It involved a direct confrontation with the occupants as the offender attempted to escape.
26. The common assault on DI involved the threat of immediate violence upon a resident pursuing him following the burglary. The threat was of stabbing, which in the context that it occurred, was a very serious threat. However, because it involved no actual physical violence it is below the mid-range of objective seriousness for this offence.
27. The charge of possessing a knife in a public place is in the mid-range of objective seriousness. It is consistent with the offender's involvement in crime and drug use that he would be in possession of such a knife.
28. The subjective circumstances of the offender are described in a pre-sentence report prepared by ACT Community Corrections and an updated pre-sentence report.
29. He is 47 years old. He is an Indigenous man with heritage from the Murri people of Queensland. He is not actively engaged with the ACT Indigenous community.
30. He was born in Queensland. He reported to authors of the pre-sentence report that his formative years involved significant dysfunction because he was a ward of the state. He entered the foster care system from a young age. He absconded from many of his foster care placements. When he was 12 years of age he entered juvenile detention.
31. The offender reported that he attended school when he was sentenced to juvenile detention and left during Year 9. He held unskilled positions within the construction industry since his departure from school. He acknowledged that his employment history had been adversely affected by his criminal history and several custodial sentences. He reported he received Centrelink payments while in the community and that he has no debts or savings.
32. He reported long-term use of methamphetamine, commencing when he was 28 years old. Before his arrival at the Alexander Maconochie Centre (AMC) he used methamphetamine daily. At the time of his arrest he did not have problematic use of heroin or alcohol, although he did in the past.
33. The offender has three sisters who reside in Queensland. He has had limited contact with them over the past 15 years. He has not had an intimate partner and has no children. The offender reported that his former friends and companions actively use illicit substances. Prior to arriving at the AMC the offender was not involved in prosocial leisure activities.
34. He has experienced homelessness throughout the past 20 years between his periods in custody.
35. The offender was diagnosed with an unspecified mental health condition approximately 10 years ago. He has received medication at the AMC to address this. AMC records stated that he had contact with the medical staff at the Hume Health Centre and reported no significant concerns with his physical health.
36. During April 2019, he was transferred to the Management Unit at the AMC due to engaging in fighting with other detainees. He received further sanctions for pouring his bodily fluids onto AMC property. Since July 2019, his behaviour in custody has improved, and he secured employment as a laundry worker within his accommodation unit. In August 2019, he self-referred to the Anger Management Program although dropped out of the program.
37. An updated pre-sentence report outlines that whilst in custody he has completed the First Steps Alcohol and Drug Program and the Stress Less Program. He has also begun attending sessions with the Peer Mentor Support Program. The offender's participation in these programs has been described in terms consistent with attendance, contributions to useful discussions, having polite and engaged manner and dedication to practicing new skills and learning exercises. He has some concerns about his reading and writing skills.
38. The pre-sentence report also records that the offender has been a recipient of National Disability Insurance Scheme (NDIS) payments for six years. His disability is related to a head injury caused by a motor vehicle accident, alcohol abuse and being the recipient of several assaults during previous custodial episodes. He advised that whilst in custody he has used some cannabis and non-prescribed buprenorphine. He wishes to enter the Solaris Therapeutic Community Program but has not been able to do so yet. He has submitted a restorative justice referral. He has displayed some insight into his crimes and a desire to apologise to the victims.
39. The offender tendered a letter to the court which includes some further information about his history and attitude to his offending and personal circumstances. He recognised that he has "wasted my entire adult life in jail". He says that he wants to stop breaking into people's houses and to live in the community. He says that he wishes he could change and that "I hate the person I have become". He identifies that he is getting older and feels that with housing and a meaningful job he would have a realistic chance of not reoffending.
40. He has a substantial criminal history in New South Wales, Victoria and Queensland. In New South Wales he has convictions from the age of 21 for robbery and assault, assault police, stealing and larceny. In Queensland, as an adult, he has convictions which include assault, unlawful damage, stealing, unlawful use of a motor vehicle, escaping from custody, breaking and entering, assault occasioning actual bodily harm, assaulting police and correctional services officers and unlawful wounding. In Victoria his offending commenced in 2001 when he was 29 years old. It includes assault, theft, burglary, possessing the proceeds of crime, making a threat to kill, theft of a motor vehicle, intentionally causing injury, resisting police, armed robbery, damaging property, dealing in property suspected of being the proceeds of crime, burglary, entering a building with intent to steal, disposing of stolen goods and arson. His criminal history demonstrates a persistent pattern of property crime and violence. It reduces the potential for leniency. It affects the weight that can be given to rehabilitation as a sentencing purpose when weighed against the other purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT).
41. Pleas of guilty to each of the offences, aside from CC2019/8135 (the theft at residence one) and CC2019/8085 (the burglary at residence one) were entered in the Magistrates Court on 27 August 2019, following an initial plea of not guilty. Notwithstanding the strength of the Crown case, I will allow a discount of approximately 20% having regard to the utilitarian value of the pleas of guilty and the acceptance of responsibility that they involve.
42. He pleaded guilty in the Magistrates Court to the charges involving residence one on 26 November 2019. This was after an initial plea of guilty but prior to committal. I will allow a discount of approximately 20% in relation to this plea of guilty.
43. He has spent 343 days in custody attributable solely to these offences since his arrest on 4 March 2019. It is appropriate to take this period into account by backdating the commencement of the custodial sentences that will be imposed.
44. The offending involves serious property offences involving the threat of violence committed in relation to ordinary residences in the Territory. Two of the burglaries involved confrontation with the residents of the premises. The series of offences demonstrate that the offender is a serial, methodical burglar. He searches thoroughly and intrusively for items to steal. He is prepared to threaten serious violence upon the residents who confront him. His conduct is consistent with the use of proceeds of his crime to support his methamphetamine use.
45. The offender has a dreadful criminal history. It must be recognised that the consequences of his deprived upbringing and early involvement with the criminal justice system have ongoing consequences. Having said that, it is apparent that notwithstanding extensive periods in custody for a variety of serious offending he remains a recalcitrant recidivist. It is notable that the pre-sentence report identified methamphetamine use since the age of 28. It does not provide an explanation for his extensive criminal history prior to that age.
46. Very clearly, specific deterrence must remain an important sentencing consideration. However, community protection, denunciation and recognition of the harm to the victims must also be very prominent sentencing considerations. So too must general deterrence. There can be no doubt that crime caused by methamphetamine use is an extremely serious problem. There remains some prospect of rehabilitation which must be considered having regard to the offender's stated willingness to engage in a rehabilitation program targeted at his methamphetamine use and his age. The updated pre-sentence report contains some positive signs of engagement with programs likely to assist with his rehabilitation. It must be recognised however that his prospects of rehabilitation can, having regard to his criminal history, only be described as guarded. Having said that, because of his age and the possibility that he will demonstrate by his conduct in prison that he remains, over the long-term, motivated to rehabilitate himself, I will set a non-parole period which might be shorter than otherwise appropriate having regard to his criminal history. That will give him the potential for release on probation if over the years of his sentence his conduct warrants it.
47. Having regard to the seriousness of the offending and the offender's poor criminal history, in my view the only appropriate sentences are ones of imprisonment. Each of the sentences I impose incorporate a discount of approximately 20%, although the shorter sentences may involve somewhat greater reduction because of the rounding to the nearest month.
48. I have provided a degree of concurrency between the sentences where the offending is related. Where the offending is separate, I have nevertheless allowed a degree of concurrency having regard to issues of totality.
49. The offender has been in custody since his arrest on 4 March 2019 and the sentences will be backdated to that date. The aggregate sentence that arises from the orders I am about to pronounce is seven years and eight months. The non-parole period which I will order is a period of 50 months.
I certify that the preceding fifty [50] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.
R
Tracey [2020] ACTSC 28