Director of Public Prosecutions v Alfred (a pseudonym)
[2024] ACTSC 341
•30 October 2024, 15 November 2024
SUPREME COURT OF TE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Alfred (a pseudonym) |
Citation: | [2024] ACTSC 341 |
Hearing Date: | 2 October 2024 |
Decision Date: | 30 October 2024, 15 November 2024 |
Before: | Burns AJ |
Decision: | See [62] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – joint commission aggravated burglary and aggravated robbery – juvenile offences – joint commission aggravated burglary and attempted theft – breach of suspended sentences – substantial criminal history – significant childhood deprivation and disadvantage – substance abuse and mental health disorders – consideration of s 133C Crimes (Sentencing) Act 2005 (ACT) re juvenile offences – prospects of rehabilitation poor despite relative youth – sentence of imprisonment imposed – suspended sentences restored |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 133C |
Cases Cited: | Alfred (a pseudonym) v Eiffert [2023] ACTSC 403 |
Parties: | Director of Public Prosecutions ( Crown) Braiden Alfred (a pseudonym) ( Offender) |
Representation: | Counsel E Wren ( Crown) E Chen ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ( Offender) | |
File Numbers: | SCC 250 of 2023, SCC 31 of 2024 |
Burns AJ:
1․Braiden Alfred, you have entered pleas of guilty to one charge of aggravated robbery (CAN 5998/23) and one charge of aggravated burglary (CAN 6781/23) which occurred on 8 April 2023. At that time, you were an adult, so I will refer to these charges as the adult offences. The offence of aggravated robbery carries a maximum penalty of 25 years imprisonment, a $400,000 fine or both, while the offence of aggravated burglary carries a maximum penalty of 20 years imprisonment, a $320,000 fine or both.
2․In addition, you are before me for sentencing on charges that were found proven after a hearing in the Childrens Court. These charges are a charge of aggravated burglary (CH2023/219) and a charge of attempted theft (CH2023/218). These offences were committed on 31 January 2023. I will refer to these charges as the juvenile offences because you were 17 years 11 months old at the time you committed these offences. The offence of attempted theft carries a maximum penalty of 10 years imprisonment, a fine of $160,000 or both.
3․Finally, these offences place you in breach of five suspended sentences of imprisonment on which there is a total of one year and one month imprisonment outstanding. I will refer to these as the breach offences.
4․I will start by setting out the facts in the juvenile offences, as they occurred before the adult offences. On 10 May 2023 you were found guilty by a Special Magistrate of the charges of aggravated burglary with the intention to commit theft (CH2023/219) and attempted theft (CH2023/218) in the Childrens Court. You appealed against these findings of guilt, but that appeal was dismissed by Baker J on 21 December 2023 (Alfred (a pseudonym) v Eiffert [2023] ACTSC 403). You were subsequently committed to this Court for sentence by the Childrens Court on 6 June 2024.
5․The facts relating to these offences are those set out in paragraphs [4]-[8] of the reasons of Baker J for dismissing your appeal. Those facts are:
4. On 31 January 2023 at about 5:43pm, two offenders broke into the Apple Store located in the Canberra Centre in Civic, Canberra. The first offender (Offender 1) was wearing long black clothing, a black face mask, two black sneakers, and a white glove on his right hand, and was carrying an Aldi-branded shopping bag. The second offender (Offender 2) was wearing long black clothing, a white face covering, one white sneaker and one black sneaker, and a white glove on his right hand, and was carrying a black bag.
5. The two offenders entered the Canberra Centre, took the escalator to the upper floor, and approached the locked glass doors of the Apple Store. The staff members and security officers in the store retreated to the secure storeroom, located at the back of the store, which also housed most of the products sold in the store. The offenders forced the doors open and ran toward the storeroom. The offenders unsuccessfully attempted to gain entry to the storeroom, before exiting the store though a rear exit and leaving the Canberra Centre through the Bunda Street doors at 5:43pm. This course of conduct was captured on CCTV footage.
6. Police attended the area at approximately 5:45pm. Several officers searched Glebe Park, located next to the Canberra Centre. At this time the appellant was walking on the edge of the park near Cooyong Street. When the appellant saw one of the officers, he immediately hid in a small bush. The appellant then fled when the officer called out to him. The police officers pursued the appellant on foot. One of the officers located the appellant in a paved area of a hotel near the edge of the park, where he was apprehended and arrested at about 5:53pm. At the time of his arrest, the appellant was wearing a black t-shirt and colourful striped shorts. He was not wearing shoes.
7. At about the same time, other officers observed another young male (the co-offender) exiting Glebe Park. After a brief chase, police arrested the co-offender, who was wearing a black jumper and black tracksuit pants.
8. Police also conducted a search of the surrounding area of Glebe Park. During the search, police located and seized a black duffel bag, an Aldi shopping bag containing an orange baseball bat, a white shirt tied in a knot, a set of blue gloves, a single black sneaker with a red ankle rim, and a single white sneaker.
6․Baker J was satisfied beyond reasonable doubt that you were Offender 2.
7․The pleaded circumstance of aggravation on the charge of aggravated burglary is that you were in company with your co-offender. In assessing the objective seriousness of the charge of aggravated burglary, I take into account:
(a)while the means used to commit the offence were not sophisticated, the offence was clearly premeditated and planned. You and your co-offender took steps to ensure that you were not identifiable;
(b)the offence was of short duration;
(c)the premises were occupied at the time of the offence, and were known by you to be occupied;
(d)at the time of this offence you were on conditional liberty, being subject to suspended sentences imposed in this Court on 7 July 2022 for similar offending;
(e)the victim of this offence, the Apple Store in the Canberra Centre, was the victim of earlier offences of aggravated burglary and theft committed by you on 19 January 2022; and
(f)the offence was brazen, being carried out in daylight hours in a shopping centre.
8․I would assess this offence as in the lower part of the mid-range of such offences.
9․In assessing the objective seriousness of the charge of attempted theft, I take into account:
(a)the offence was committed in company;
(b)while the means used to commit the offence were not sophisticated, the offence was clearly premeditated and planned;
(c)at the time of this offence you were on conditional liberty, being subject to suspended sentences imposed in this Court on 7 July 2022 for similar offending;
(d)the offence involved revictimising the victim of an earlier offence committed by you;
(e)the offence was of short duration; and
(f)the offence was brazen.
10․I would assess this offence as in the lower range of such offences.
11․I will now turn to the adult offences. On Saturday, 8 April 2023 at about 4:24 AM you forced entry into the secured glass sliding doors of the Westfield Centre in Belconnen. Inside the Centre you handed your co-offender, Abraham Herjok Majok, a mallet. The two of you travelled up an escalator to level 3 and proceeded directly towards the premises of CeX Pty Ltd trading as Complete Entertainment Exchange.
12․You and your co-offender attempted to gain entry to the store via the security screen door before then smashing a glass window using your feet and tools. You used a hammer and your co-offender used the mallet. After successfully smashing the window, you climbed through into the store. Your co-offender remained outside keeping guard. He passed a “Louis Vuitton” bag through the smashed window into the store and you proceeded to fill the bag with various phones, tablet devices, cameras and other products.
13․Outside the store, a security guard attended the scene. Your co-offender walked towards the guard, raising and aiming a firearm at him. You climbed back through the broken window and you and your co-offender ran from the building after police were called by the security guard. Shortly thereafter, your co-offender was arrested while still in possession of the firearm. The firearm was an air pistol capable of discharging a projectile, but it is not alleged that it was loaded. The Louis Vuitton bag containing the stolen property was located nearby.
14․You were arrested later that morning at an address in Amaroo.
15․The value of the property stolen in the course of this incident was $18,667.
16․The circumstances of aggravation pleaded with regard to the charge of aggravated burglary are that you were in company with your co-offender and that you had with you an offensive weapon, namely a firearm. In assessing the objective seriousness of the offence of aggravated burglary, I take into account:
(a)while the means used to commit the offence were not sophisticated, the offence was clearly premeditated and planned;
(b)damage was occasioned to the premises to enable you to gain entry;
(c)the offence was committed at commercial premises in the early hours of the morning, meaning that the premises were vulnerable;
(d)at the time of this offence you were on conditional liberty, being subject to suspended sentences imposed in this Court on 7 July 2022 for similar offending;
(e)the victim of this offence, CeX, was the victim of earlier offences of aggravated burglary and theft committed by you on 25 October 2021; and
(f)the offence was of short duration.
17․I would assess this offence as in the mid-range of such offences.
18․The circumstances of aggravation pleaded with regard to the charge of aggravated robbery are that you were in company with your co-offender and that you had with you an offensive weapon, namely a firearm. In assessing the objective seriousness of the offence of aggravated robbery, I take into account:
(a)while the offence was not sophisticated, it was clearly premeditated and planned;
(b)the value of the property stolen was considerable;
(c)the offence was committed at commercial premises in the early hours of the morning;
(d)at the time of this offence you were on conditional liberty; and
(e)the offence was of short duration
19․While the firearm utilised in this offence was not loaded, the victim, the security guard, was not aware of that fact. Clearly, your co-offender intended that the victim should believe that the firearm was loaded and capable of lethal action.
20․I would assess this offence also as in the mid-range of such offences.
21․I will now turn to the facts of the breach offences upon which you were sentenced by Norrish AJ on 7 July 2022 in R v Alfred [2022] ACTSC 216:
2. The first group of offences was committed on 25 October 2021 when the offender entered the Westfield Belconnen Shopping Centre in company with two unknown persons and broke into a business called CeX, located on level 3 of the shopping centre. There he and the others stole a number of items to the value of $51,208, those items being a number of mobile phones, laptops, electronic tablets, video games and other electronic and digital goods in respect of which CeX was in the business of selling and exchanging. That business specialised in selling second-hand goods.
3. There are three charges that arise out of this offending, one offence of aggravated burglary which carries a maximum penalty of 20 years' imprisonment plus a substantial fine; one offence of theft, which carries a maximum penalty of 10 years' imprisonment and a fine; and a third offence which would ordinarily be dealt with summarily, in the Children's Court, that of trespass, which I am informed carries a maximum fine of $2,200.
22․On 7 July 2022 Norrish AJ sentenced you to a total of one year seven months imprisonment, suspended after 6 months imprisonment upon you entering into a Good Behaviour Order for a period of 18 months from 28 October 2022 and expiring on 28 April 2024 with conditions including that you be subject to supervision by the Director of Child and Youth Protection Services. Many of the sentences imposed by his Honour were ordered to be served concurrently with other sentences with a view that you be released from custody before your 18th birthday.
23․It is clear from the chronology of events that having been released from custody on 28 October 2022, within three months you committed the juvenile offences which are before me and then, a little over two months later, you committed the adult offences which are before me.
24․You did not give evidence at your sentence hearing but I had the benefit of a comprehensive Pre-Sentence Report dated 23 September 2024 and a report prepared by a clinical psychologist. I also had the benefit of a Child and Youth Protection Services Pre-Sentence Report dated 1 July 2022. I also had a copy of a Drug and Alcohol Treatment Assessment dated 22 May 2024 prepared by ACT Corrective Services and a Drug and Alcohol Sentencing List Suitability Assessment Report dated 29 April 2024.
25․Your family background as set out in the most recent PSR is as follows:
(a)You are a 19-year-old man of South Sudanese heritage. You are the eldest son of your family unit, comprising your mother and 9 siblings. You described a dysfunctional upbringing marred by multiple traumatic events. You stated that you and your family spent a period in hiding because your maternal uncle threatened, and attempted, to kill your immediate family. You recalled one occasion when your family only just escaped your home after your uncle set it alight. You stated that your father passed away when you were 10 years old. You said that you had a close, positive relationship with your father and you viewed him as a strong, pro-social role model.
(b)When you were 13 years old you were left in Africa for approximately 14 months. This was because of your ongoing behavioural issues. You were apparently left with relatives on the understanding that you were to attend boarding school in Kenya and reside with family. You told the author of the report that you were left with family that you did not know and that you were abused physically. Your mother eventually returned to Africa and the two of you later returned to Australia.
(c)You told the author of the report that your family had always struggled financially. You stated that you have positive relationships with your family. You expect that elders from your community will also hold you accountable for your criminal behaviours when you are released.
(d)Child and Youth Protection Services noted that there have been 78 Child Concern Reports received relating to exposure to domestic violence, physical and emotional abuse, neglect, and involvement with the youth justice system relating to your family. There have been 24 interventions in relation to your care and protection between 1 April 2006 and the cessation of Child and Youth Protection Services involvement in 2019.
(e)The report states that during interviews, you expressed a desire to be a positive role model for your younger siblings and spend quality time with your family.
26․You told the author of the report that your female companion has said she will continue to support you upon your release from custody, but there are some concerns about that relationship because she was banned from attending the AMC after she and your sister were observed passing prohibited items to you during their separate visits. She is also the sister of a fellow detainee who has a history of illicit drug related offending.
27․The report notes that you proposed residing at your mother’s home in Amaroo with your 7 siblings when you are released from custody.
28․You ceased schooling in year six after your father passed away. You have expressed the view that your father’s passing and your subsequent truancy were the catalyst of your descent into illicit substance use and criminal activity. You have had limited and sporadic employment. You claimed a desire to complete further education, but did not express any particular plans. The report states that you aspire to be a rapper but you also said you may have opportunities to access work in the panel beating sector. Your mother stated that in the short term you could assist her employer with commercial and residential cleaning.
29․You told the author of the Drug and Alcohol Treatment Assessment dated 22 May 2024 that you first consumed alcohol at 8 years old. You commenced cannabis use between 9 and 11 years of age. You commenced methamphetamine use at 12 years of age. Prior to being arrested you were using illicit drugs, primarily cocaine, methamphetamine and cannabis, almost daily. You told the author of the PSR that you were disappointed that you were not offered a Drug and Alcohol Treatment Order for the present offences, stating that you are motivated to address your substance misuse.
30․Since being remanded in the AMC on 8 April 2023 you have been subject to multiple disciplinary actions. On a more positive note, you were deemed to have completed the Young Offender Reintegration Pilot Program on 8 May 2024, having attended 65 of the scheduled 82 sessions. You received certificates in Brief Intervention Programs – Making my Way, Alcohol and Other Drugs, Thrive and Healthy Relationships. You also completed a road safety program. You initially engaged with the cognitive behavioural change component of that program although you discontinued your attendance.
31․You told the author of the report that the adult custodial setting was a greater deterrent than the youth Justice system and you do not wish to become institutionalised or accepting of incarceration.
32․The author of the report identified your protective factors as including your family, accommodation and limited criminal history. Your criminogenic risks include your unaddressed substance misuse linked to suspected trauma and antisocial companions. Your behaviour in custody was described as problematic and not aligning with your aspirations to reintegrate with society and your family. The author stated that there are limited instances where you have demonstrated new skills or insight into your offending risks which would be expected from a graduate of the Young Offender Reintegration Pilot Program. You accepted limited personal responsibility for your conduct. The author of the report stated that despite your hesitancy, your criminogenic risks may be lowered by assessment, self-awareness and treatment.
33․I have difficulty in accepting the description of your criminal history as “limited”. You in fact have an extensive criminal history commencing in 2018 and including multiple offences of burglary, and theft. You also have prior convictions for recklessly inflicting grievous bodily harm and common assault as well as dangerous driving and aggravated robbery. In my view, you have a particularly extensive and concerning criminal history for someone who is only 19 years old. It is quite clear from your criminal history that you have been given multiple opportunities in the past to address offending behaviour, including substance abuse. You have shown little inclination to take positive steps to address substance abuse and to avoid criminal offending.
34․I will now turn to the contents of the psychologist’s report. The psychologist took a personal history and administered a number of tests. The psychologist expressed the view that your emotional and personality development were impacted by a disjointed and chaotic developmental history where your need for a secure attachment, safety, nurturing, and care were not effectively met. You experienced traumatic events. Information provided by you suggested that during the period of the current offences you experienced symptoms that were consistent with a Post-Traumatic Stress Disorder but your symptoms have subsided whilst in custody. You described experiencing symptoms consistent with a Major Depressive Episode at the time of your assessment. It was recommended that you undergo a psychiatric assessment to determine whether you suffer from a bipolar disorder.
35․The psychologist stated that you appear to have below expected receptive and expressive language, spelling and conceptual skills for someone of your age and recommended that you undertake a detailed assessment. The current assessment revealed that you meet the criteria for Attention Deficit Hyperactivity Disorder – Combined Presentation and this is likely to have been a long-standing condition likely impacting your capacity for educational and vocational achievement. It was recommended that you be reviewed by a psychiatrist regarding possible treatments for that condition.
36․Although you have indicated a desire to work and improve your education, the psychologist opined that it is likely that these goals will be unrealised unless a strong plan for remediation, including cognitive ability and skills assessment, mentoring and training, is applied. In the past you have exhibited difficulties with authority, which has affected your capacity to retain employment. Personality testing suggests that your proneness to suspiciousness, distraction and rigid perfectionism may impede your work performance and ethic.
37․The psychologist noted your history of polysubstance abuse. Your cocaine use was assessed to be consistent with a Substance Use Disorder at the time of the present offending. It was also likely that you met the criteria for such a disorder relating to the use of cannabis, ice and alcohol. You reported that you had not used illicit substances since being remanded in custody, which was supported by urinalysis drug testing. You have not accessed a therapeutic substance intervention program but you have completed some brief criminogenic programs whilst in custody. The psychologist believed that you require monitoring, support and treatments to ensure abstinence from substance abuse after you are released from prison.
38․Based upon information provided by you, the psychologist stated that at the time of the commission of the present offences you met diagnostic criteria for:
(a)Substance Use Disorder (cocaine);
(b)Conduct Disorder (mild); and
(c)Post-Traumatic Stress Disorder.
39․Based on information provided by you, the psychologist stated that at the time of her examination you were experiencing:
(a)Major Depressive Episode;
(b)Anti-Social Personality Disorder; and
(c)Attention Deficit Hyperactivity Disorder (combined presentation).
40․The psychologist expressed the opinion that your conduct disorder and substance dependence were primary contributors to your chaotic lifestyle, lack of compliance with societal expectations, your failure to comply with your legal orders and your current offences. Being substance dependent at the time of the offences likely amplified the symptoms of your conduct disorder to the extent that it had a dis-inhibiting effect on an already reduced capacity to comply with rules, make moral judgements, effectively consider risks and regulate your conduct. Your level of moral insensitivity, impulsivity, and internal pleasure derived from risky behaviour would likely be exacerbated by your substance abuse and affect your already compromised ability to curtail your conduct. Your conduct disorder is a propensity to disregard and violate the rights of others, and your capacity to act pro-socially is severely compromised. Also, your PTSD symptoms may have made it more difficult for you to remain calm and avoid reckless and destructive behaviour.
41․At the time of these offences, the psychologist said your conduct disorder affected your affiliative and intuitively driven moral behaviours. The existence of a conduct disorder impaired your ability to exercise appropriate judgment especially when considering risks, compliance with rules and ability to appreciate the wrongfulness or seriousness of your conduct.
42․The psychologist expressed the view that your antisocial personality disorder may be worsened by time in custody due to contact with other similarly affected individuals who tend to reinforce poor attitudes and behaviours. Being in custody, however, means that your physical and mental health are not affected by substances and you are likely to be more responsive to authority and in better control of your conduct.
43․The psychologist also expressed the view that someone experiencing a major depressive episode is more likely to experience increased psychosocial difficulties in custody. Your lowered mood may make it difficult for you to engage in routines, take care of yourself and get along with others. A custodial environment is likely to exacerbate and perpetuate symptoms of low mood.
44․The psychologist stated that while you are in custody you should be referred to a GP and/or psychiatrist and medication should be considered for your ADHD and depressive episode. If these do not work, alternative therapies may be tried, but these may be difficult to access in custody. Anti-Social Personality Disorder is best treated by long term psychotherapy which may be available to you in custody. Such therapy is best conducted in a therapeutic environment and not in a prison unless the custodial environment is specially adapted for this purpose.
45․I accept the opinions of the psychologist that you meet the diagnostic criteria for the various disorders she referred to. I accept that the disorders from which you suffered at the time of these offences likely affected your ability to make calm and rational judgements. I do note, however, that these offences were not spontaneous, but rather involved significant planning and premeditation. I accept that a combination of your substance abuse and personality disorder reduced your capacity to comply with rules, make moral judgements, and to effectively consider risks and regulate your conduct.
46․I also accept that the various disorders referred to by the psychologist and their operation on you at the time of the offending justify a slight reduction in your moral culpability. In committing these offences, however, you acted with knowledge of what you were doing and with knowledge of the gravity of your actions. As such, a significant reduction is not warranted. For this reason also, a moderation of the importance of punishment and general deterrence as sentencing considerations is also justified, but, again, this should not be significant.
47․I also accept that your disorders will make imprisonment somewhat more difficult for you than for someone not similarly afflicted.
48․Of greater significance is the neglect and abuse to which you were subject in your childhood, as well as your exposure to violence during that period of your life. Any causal connection between this history and the development of the disorders referred to by the psychologist is unclear. I do accept that you commenced substance abuse at an early age. It is appropriate, nevertheless, to moderate general deterrence and punishment as sentencing considerations due to your childhood history of neglect and abuse.
49․On the other hand, the disorders from which you suffer mean I must give careful consideration to the need for community protection in sentencing you for the present offences. From the report of the psychologist I glean that in order for you to be successfully treated you will need to commit to a process of treatment not only for drug abuse but also to address your mental health disorders. To date, you have shown little commitment to addressing these issues while in the community. When sentencing you on 7 July 2022, Norrish AJ remarked on your history of reoffending after short periods of compliance following release from custody. It is relevant to note that before Norrish AJ it was submitted that you had demonstrated remorse and shown genuine motivation to change. It was also said that you were aware of your age and the fact that you were approaching the point where sentences of imprisonment would be served in an adult prison. I note that similar statements were made in the present proceedings.
50․While you have professed a desire to undertake treatment for substance abuse since you were remanded in custody, it is unclear to what extent these statements are genuine or are simply directed towards securing your release from custody. Based upon your history, it is also unclear whether you have the commitment to undertake and complete any treatment or programs directed towards your rehabilitation while you are not in custody.
51․In sentencing you for the offences which occurred before you turned 18, I must take into account the provisions of s 133C of the Crimes (Sentencing) Act 2005 (ACT) which requires me to consider the purpose of promoting your rehabilitation and permits me to give more weight to that purpose than to other sentencing purposes. In addition, in sentencing you for that offence I must have particular regard to the common law principle of individualised justice.
52․While the provisions of s 133C do not apply in sentencing you for the adult offences, you were still a very young man at the time you committed those offences. Accordingly, accepted common law principles would suggest that rehabilitation remains a particularly important sentencing consideration in sentencing you for the adult offences.
53․Your criminal history suggests that you are not presently a good candidate for rehabilitation. You have not taken opportunities which have been given to you in the past to address your offending behaviour, and you have inevitably returned to criminal offending not long after being released from custody. You appear to take pride in presenting yourself as a gangster. In addition, you have been subject to disciplinary action whilst in custody awaiting sentence. I cannot, at the present time, assess your prospects for rehabilitation as better than poor, despite your relatively young age. Your prospects would undoubtedly improve if you were to commit to appropriate treatment both while in custody and when you are released into the community.
54․I do not accept the submission made on your behalf that I should deal with the adult charges by way of a Drug and Alcohol Treatment Order. In that regard I give particular weight to the Drug and Alcohol Sentencing List Suitability Assessment Report in which it was assessed that you are unsuitable for such an order because of your lack of meaningful participation in the assessment process.
55․The juvenile charges before me were committed for sentence after a contested hearing in the Childrens Court. As such, you are not entitled to any reduction in sentence for a plea of guilty. The adult charges were committed for trial to this Court, but subsequently resolved into pleas of guilty after a Criminal Case Conference. Your pleas of guilty on the adult charges have saved the community the cost of a defended trial. I also accept that your pleas of guilty are evidence of some remorse. I will reduce the otherwise appropriate sentences on the adult charges by approximately 15 percent because of your pleas of guilty.
56․Despite your youth and the other matters to which I have referred, general deterrence remains an important sentencing consideration for both the juvenile and adult offences. Personal deterrence is also important. It is also important that the community be protected from those who would commit serious criminal acts, particularly those involving the use of firearms. I acknowledge that you were not the person who actually wielded the firearm used in the adult offences, but you were undoubtedly aware that your co-offender was armed with a firearm for the purpose of scaring witnesses.
57․On 17 April 2023, your co-offender in the juvenile offences was sentenced in the Childrens Court for offences of aggravated burglary and attempted theft. On the charge of aggravated burglary he was convicted and released upon a 12 month good behaviour order with 6 months of supervision and 20 hours of community service. On the charge of attempted theft he was convicted and released upon a 12 month good behaviour order with supervision and 20 hours of community service.
58․I accept the submission that you and your co-offender played materially identical roles in this offending. Your co-offender was approximately 2 months older than you, and he had not been subject to profound abuse or neglect in his formative years. His criminal history was, however, considerably less serious than yours. Your lawyer conceded that your co-offender had a generally more favourable set of subjective circumstances justifying disparity between any sentence imposed in his case and those which may be imposed in your case.
59․It is accepted that you have spent 586 days in presentence custody referrable to the present offences as at 2 October 2024. The commencement date for the sentences I impose should therefore be 24 February 2023.
60․I am satisfied that no other alternative than immediate periods of imprisonment are appropriate for the offences which are before this Court.
61․With regard to the breach charges, you committed further offending very soon after you were placed on the suspended sentence orders by committing very similar offences to those upon which the suspended sentences had been imposed. There is no evidence of any rehabilitation undertaken by you while you were in the community. I am satisfied that neither you nor the community received any benefit from the suspension of the sentences imposed by Norrish AJ. In my opinion, it is appropriate to impose the suspended portions of imprisonment rather than to resentence for those offences.
Orders
62․For the above reasons, I make the following orders:
(1)I record convictions on each of the juvenile and adult charges. That places you in breach of the suspended sentences imposed by Norrish AJ.
(2)In respect of the offence of aggravated burglary (CH 22/188) the suspended period of imprisonment of 3 months is restored commencing on 24 February 2023 and expiring on 23 May 2023.
(3)On the charge of aggravated burglary (SCCAN 76/2022) the suspended period of 1 year 1 month imprisonment is restored commencing 24 February 2023 and expiring 23 March 2024.
(4)On the charges of damaging property (SCCAN 77/2022 and SCCAN 78/2022) the suspended periods of 4 months imprisonment are restored commencing 24 February 2023 and expiring 23 June 2023.
(5)On the charge of theft (SCCAN 79/2022), the suspended period of 6 months imprisonment is restored commencing 24 February 2023 and expiring 23 August 2023.
(6)On the charge of aggravated burglary on 31 January 2023 (CC CAN 219/2023) you are sentenced to 2 years imprisonment commencing 24 November 2023 and expiring on 23 November 2025.
(7)On the charge of attempted theft on 31 January 2023 (CC CAN 218/2023) you are sentenced to 12 months imprisonment commencing 24 February 2025 and expiring 23 February 2026.
(8)On the charge of aggravated burglary on 8 April 2023 (CAN 6781/2023) you are sentenced to 2 years 3 months imprisonment (reduced from 2 years 9 months because of your plea of guilty) commencing 24 May 2025 and expiring on 23 August 2027.
(9)On the charge of aggravated robbery on 8 April 2023 (CAN 5998/2023) you are sentenced to 2 years 6 months imprisonment (reduced from 3 years because of your plea of guilty) commencing 24 August 2025 and expiring 23 February 2028.
(10)I cannot impose a non-parole period which encompasses the restored sentences or the sentences imposed on the juvenile offences. It is inappropriate to impose a good behaviour order because of the sentences of imprisonment imposed on the adult offences. I will, however, bear the restored sentences and the sentences imposed on the juvenile offences in mind in fixing a non-parole period with regard to the adult offences.
(11)The total period of imprisonment which you are liable to serve because of the orders I have made is 5 years commencing 24 February 2023 and expiring 23 February 2028. I will set a non-parole period commencing on 24 May 2025 and expiring on 23 August 2025.
(12)Pursuant to r 6906 of the Court Procedure Rules 2006 (ACT), the sentences on the charges of aggravated burglary (CC CAN 219/2023) and attempted theft (CC CAN 218/2023) imposed by Burns AJ on 30 October 2024 are confirmed except that each of those sentences will be partially suspended from 24 August 2025 with the offender being required to sign an undertaking to be of good behaviour during the period of suspension ending on 23 February 2026, with no further conditions other than the core conditions.
| I certify that the preceding sixty-two [62] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Burns. Associate: Date: 18 December 2024 |
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