Director of Public Prosecutions v Barnes (No 2)
[2024] ACTSC 240
•23 July 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Barnes (No 2) |
Citation: | [2024] ACTSC 240 |
Hearing Date: | 1 July 2024 |
Decision Date: | 23 July 2024 |
Before: | Christensen AJ |
Decision: | See [39] |
Catchwords: | CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – Review – possess prohibited firearm and ammunition – going equipped for theft – offences committed while on treatment order – whether to resentence or impose original sentence – consideration of Bugmy and Verdins principles – previous attempts at rehabilitation unsuccessful – treatment order cancelled and original sentence imposed – nonparole period imposed |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 33, 80ZC, 80ZD |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 |
Parties: | Director of Public Prosecutions ( Crown) James Edward Barnes ( Offender) |
Representation: | Counsel G Meikle ( Crown) C Duffy ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Numbers: | SCC 156 of 2023 SCC 157 of 2023 SCC 149 of 2024 SCC 150 of 2024 |
CHRISTENSEN AJ:
Introduction
1․The offender, James Barnes, is to be sentenced for the following offences (the sentence offences):
(a)possess unregistered prohibited firearm contrary to s 177(2)(a) of the Firearms Act1996 (ACT) (Firearms Act), carrying a maximum penalty of 10 years imprisonment, 1000 penalty units or both;
(b)possess ammunition contrary to s 249(1) of the Firearms Act, carrying a maximum penalty of 10 penalty units; and
(c)going equipped for theft contrary to s 315(1) of the Criminal Code 2002 (ACT), carrying a maximum penalty of three years imprisonment, 300 penalty units or both.
2․The determination as to the sentence for those offences will inform the finalisation of review proceedings arising from the sentence offences having been committed during the term of a drug and alcohol treatment order (treatment order) that was imposed on 19 December 2023: DPP v Barnes (Supreme Court of the Australian Capital Territory, Refshauge AJ, 19 December 2023) (Barnes (No 1)). Those reasons, subject to any required redactions, will be incorporated as a schedule. The offending the subject of that proceeding includes 28 offences involving burglary, theft, dishonestly obtain property by deception, damage property, and driving offences committed between April 2022 and January 2023.
3․Mr Barnes' treatment order is currently provisionally suspended pursuant to s 80ZC(2) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), the order having been suspended on 19 January 2024.
Sentence offences.
4․On 1 March 2024 at about 4:35am, Mr Barnes and another person were observed by police in the inner north of Canberra. Mr Barnes was riding a scooter and the other male a bicycle. They were wearing dark clothing and dark face coverings. When police activated their emergency lights, Mr Barnes and the other person accelerated away.
5․Police then searched in an area of Braddon for them. Mr Barnes was seen to stand up from behind a vehicle parked in a driveway. He ignored police directions to stop and began to run away. Police chased him until he was located in a large hedge separating two houses.
6․Mr Barnes was reaching into his pockets and police saw a silver box cutter style knife fall from his pocket. He then rolled onto his stomach and continued to reach for his pockets. Police utilised a taser and then removed Mr Barnes from the hedge and arrested him.
7․A backpack that Mr Barnes was wearing contained a slam fire type firearm, a
black-handled steak knife, and one round of ammunition. The particulars of the going equipped charge also include an article of black rubber gloves and a black torch.
Nature and circumstances: s 33(1)(a) of the Sentencing Act
8․The prosecution helpfully set out the factors that inform the assessment of the objective seriousness of the firearm offending with reference to what was said in Kajevic v Noble [2021] ACTSC 67 at [24]. I accept the prosecution's submission and have considered:
(a)there was possession rather than use of the firearm;
(b)the firearm is described as a slam fire type firearm, a firearm that discharges upon a cartridge being loaded into the chamber;
(c)the purpose for the possession was nefarious given the circumstances in which it was possessed;
(d)it is not known how the prohibited firearm came into the offender's possession;
(e)the firearm was stored in an extremely unsecured vessel being a backpack worn by the offender in public;
(f)the firearm was stored together with one round of ammunition, although there is no evidence that the ammunition was compatible with the firearm; and
(g)there is no evidence that the firearm was loaded.
9․In summary, there are some serious aspects to the possess firearm offending, but other less serious aspects. I have also had regard to what was said by Baker J in Kristiansen v Yeats [2022] ACTSC 351 (Kristiansen), as to this type of offending, and considered the sentences imposed there. The offence there was one contrary to s 43 of the Firearms Act, carrying the same maximum penalty. The form of firearm involved here, and the circumstances in which it was possessed, is such that I consider this to be more serious offending than what occurred in Kristiansen.
10․The ammunition offending involves only one round being possessed. It was also possessed in what was insecure storage with a firearm, but I have taken this into account in assessing the seriousness of the firearm offence.
11․The prosecution also helpfully made submissions as to the features relevant to the assessment of the offence of going equipped for theft and I have considered:
(a)the items found on the offender's person relate both to the concealment of crime and the physical commission of crime;
(b)the knife was capable of being used to threaten or inflict violence; and
(c)the offender was found with these items in the middle of the night in a high density residential area and in the company of another person.
12․I add that the offending involved not simply possession of a single item that would suffice to establish the offence but involved possession of multiple items in what I take to be a rolled-up charge. It is a serious example of this offence having regard to the type of implements, the number of them, the capability of them, and the circumstances in which they were possessed. That is, the circumstances in which they were possessed enabled a ready ability to engage in the concerning offending behaviour.
13․In R v Steen [2020] ACTSC 222 (Steen), Burns J imposed a starting point of 12 months imprisonment for possession of a single screwdriver: see Steen at [48], [121]. A consideration of sentencing statistics, to the extent they can be informative, provides that for this offence, terms of imprisonment in the range of six to 12 months have been imposed. I have not had regard to the particular of this charge which includes the firearm and the ammunition given the distinct charges that relate to these items.
14․The prosecution submitted that no penalty other than imprisonment in respect of the offences where imprisonment is an available penalty was appropriate: s 10 Sentencing Act. This was conceded on behalf of Mr Barnes. I agree. This is particularly so given the offending was committed some three months into the term of the treatment order, which is an aggravating factor on sentence.
15․The nature of the offending reflects a blatant decision to engage in serious criminal offending despite Mr Barnes having made promises to the court and the community as to an intention to rehabilitate from criminal offending and substance abuse. Strongly deterrent sentences are warranted and Mr Barnes' criminal history, one that includes burglary and theft, means no leniency can be afforded.
Subjective considerations: s 33(1)(m) of the Sentencing Act
16․Mr Barnes' subjective circumstances were otherwise set out in detail in Barnes (No 1) and are unnecessary to repeat in detail here. These do include that Mr Barnes experienced disadvantaged circumstances in his childhood such that the Bugmy principles (Bugmy v The Queen [2013] HCA 37; 249 CLR 571) are enlivened, and I have considered this in determining the appropriate sentence on this occasion. He commenced substance use from about 10 years of age.
17․The Verdins principles (R v Verdins [2007] VSCA 102; 16 VR 269) were found to apply at the previous sentence proceeding but no submission was made that they are applicable for this offending or sentencing. I have, though, had regard to the information available from that proceeding that Mr Barnes is diagnosed with complex post-traumatic stress disorder, attention deficit hyperactivity disorder, dyslexia, and has an intellectual disability.
18․As at the time of this proceeding, some seven months later, Mr Barnes is now aged 28 years. He gave evidence at the sentence proceeding and explained the courses and employment he has undertaken while he has been in custody. This includes a Certificate III in construction which will go for 18 months. He is engaging with the SMART Recovery course and has made inquiries to join the Solaris program.
19․Mr Barnes demonstrated a level of insight into his substance abuse and the rehabilitation he needs. He expressed that, “[t]he [treatment order] involved a lot of pressure that was too much for me at the time and probably not the right time for me to be sober”. He has optimism for when he is next in the community as he is now on the Buvidal program and he has a prosocial friend to reside with. His plans upon release are to stay clean, get his own house, obtain employment, and resume contact with his daughter.
Other relevant sentencing considerations
Pleas of guilty
20․A plea of guilty was entered in relation to each charge in the Magistrates Court at a stage that afforded substantial utilitarian value. A discount in the order of 25 per cent is appropriate.
Presentence custody
21․In relation to the sentence offences, Mr Barnes has spent a total of 153 days in presentence custody: ss 63 and 80ZC(3) Sentencing Act. The commencement date for these sentences will take this into account.
Drug and alcohol treatment order proceeding
22․As to the proceeding arising from the offending occurring during the treatment order,
s 80ZD of the Sentencing Act applies. The order to be made with respect to the sentence offences is such that Mr Barnes will be convicted and subject to a sentence order. Accordingly, cancellation is mandatory: s 80ZD(3) Sentencing Act.23․The treatment order having been cancelled, the Court is to then determine whether to resentence or impose the original sentence order.
24․As to whether it is appropriate in the circumstances to resentence Mr Barnes, it was submitted on his behalf that there remains hope for his rehabilitation, particularly having regard to the positive steps he has taken while in the Alexander Maconochie Centre. It was also submitted that there was compliance with the part of the treatment order that required his attendance at court for reviews.
25․The prosecution submitted accurately that “the life of the Treatment and Supervision Part of the offender's [treatment order] was short and depressing”. It was submitted that there were dismal efforts at rehabilitation and continued use of illicit substances. When given the opportunity of a place at residential rehabilitation, the prosecution described Mr Barnes as having squandered the opportunity in the most appalling way possible. That is, by failing to comply with his bare minimum obligations to attend court and by committing serious offences. The prosecution submits that no pathway other than imposition of the original sentence is available.
26․Mr Barnes said in evidence at the review proceeding that after his release from custody, he did attempt to go to residential rehabilitation but the arrangements he understood were in place did not eventuate. He felt despair from what he perceived as a lack of assistance and so he went and used substances.
27․When further arrangements did not result in him making it to the rehabilitation centre, he then made efforts to make his own way. He explained that he did not get there and when he became aware of the warrant, he was not thinking straight and returned to substance use and offending behaviour. He recognises now that he should have handed himself in “instead of absconding from court and being an idiot”.
28․I accept Mr Barnes' evidence such that I do not consider that he simply deliberately chose to squander his residential rehabilitation opportunity. It is apparent that Mr Barnes did not receive supports that may have been necessary for him to achieve attendance and he did make imperfect attempts to attend on his own.
29․But it remains that there was serious offending while on the order, that this was shortly after the imposition of the order, there was continued substance misuse, and there were no solid and sustained efforts to commit to his treatment order commitments and to rehabilitation. I am not persuaded that it is appropriate in the circumstances that Mr Barnes be resentenced.
30․The Court must impose the sentence of imprisonment that was suspended under the custodial part of the treatment order: s 80ZD(4)(a) Sentencing Act.
31․The orders with respect to the imposition take into account that 10 days of presentence custody has been served. While Mr Barnes had spent some 11 months in custody at the time of the original sentence proceeding, he was sentenced to time served for an offence of dishonestly obtaining property by deception. That offence and sentence order was not the subject of the treatment order.
Consequential order
32․The Court must then consider the order to be made as a result of the term of imprisonment that will now be imposed. In determining the total term, the totality principle has been considered with a large level of concurrency appropriate for the sentence offences given the nature and proximity of the offending. It is also appropriate that the concurrency to be ordered has regard to the overall sentence to ensure that a crushing sentence is not imposed.
33․Further, it is also relevant to consider that s 80ZD(5)(b) of the Sentencing Act provides that the Court may reduce the period of the imposed sentence, taking into account the extent to which there was compliance with the treatment and supervision part of the order. Mr Barnes' compliance, or rather, lack of compliance, is such that there is no period of compliance that would lead to a direct reduction.
34․I observe that I am not of the view, and no submissions were made as to this, that an order other than the fixing of a nonparole period is available: see DPP v Stewart (No 2) [2024] ACTSC 163 (Stewart) at [33]-[35] as to the analogous circumstance in s 80ZE of the Sentencing Act. Accordingly, as also found in Stewart, the principles regarding the fixing of an appropriate nonparole period as provided by R v Ruwhiu [2023] ACTCA 18 at [18] and [108] are to be applied.
35․Mr Barnes does demonstrate some recent gains in insight as to his substance use disorder and is making solid efforts while in custody to position himself to finally achieve rehabilitation on his release. His subjective circumstances suggest that he will be assisted by support and oversight in the community for a lengthy period, as well as the deterrent effect of a parole order upon release. In the circumstances, a nonparole period in the order of 60 per cent is appropriate.
Orders
36․For those reasons, the following orders are made:
In the proceedings of SCC 149, 150 of 2024
(1)James Edward Barnes be convicted of going equipped for theft (CAN2881/2024) and he be sentenced to 10 months imprisonment, reduced from 13 months imprisonment on account of his plea of guilty, to commence on 11 January 2028 and end on 10 November 2028.
(2)James Edward Barnes be convicted of possess unregistered prohibited firearm (CAN2877/2024) and he be sentenced to 9 months imprisonment, reduced from 12 months imprisonment on account of his plea of guilty, to commence on 13 October 2028 and end on 12 July 2029.
(3)James Edward Barnes be convicted of possess ammunition generally (CAN2880/2024) and no penalty be imposed.
In the proceedings of SCC 156, 157 of 2023
(4)Under s 80ZD(3) of the Crimes (Sentencing) Act 2005 (ACT), the Drug and Alcohol Treatment Order made on 19 December 2023 be cancelled.
(5)Under s 80ZD(4)(a) of the Crimes (Sentencing) Act 2005 (ACT), the sentence of imprisonment suspended under the custodial part of the Drug and Alcohol Treatment Order be imposed.
(6)The conviction of James Barnes of burglary (CAN2022/9092) and the sentence of 14 months imprisonment be imposed, commencing on 13 July 2024 and ending on 12 September 2025.
(7)The conviction of James Edward Barnes of damage property (CAN2022/9093) be confirmed and the sentence of 8 months imprisonment be imposed to commence on 13 February 2025 and end on 12 October 2025.
(8)The conviction of James Edward Barnes of burglary (CAN2022/7676) be confirmed and the sentence of 13 months imprisonment be imposed to commence on 13 November 2024 and end on 12 December 2025.
(9)The conviction of James Edward Barnes of theft (CAN2022/8030) be confirmed and the sentence of 7 months imprisonment be imposed to commence on 13 June 2025 and end on 12 January 2026.
(10)The conviction of James Edward Barnes of burglary (CAN2022/6034) be confirmed and the sentence of 12 months imprisonment be imposed to commence on 13 March 2025 and end on 12 March 2026.
(11)The conviction of James Edward Barnes of attempt burglary (CAN2022/6854) be confirmed and the sentence of 10 months imprisonment to commence on 13 July 2025 and end on 12 May 2026.
(12)The conviction of James Edward Barnes of attempt burglary (CAN2022/6855) be confirmed and the sentence of 10 months imprisonment be imposed to commence on 13 September 2025 and end on 12 July 2026.
(13)The conviction of James Edward Barnes of burglary (CAN2022/6857) be confirmed and the sentence of 14 months imprisonment be imposed to commence on 13 July 2025 and end on 12 September 2026.
(14)The conviction of James Edward Barnes of burglary (CAN2022/6860) be confirmed and the sentence of 14 months imprisonment be imposed to commence on 13 September 2025 and end on 12 November 2026.
(15)The conviction of James Edward Barnes of theft (CAN2022/6863) be confirmed and the sentence of 8 months imprisonment be imposed to commence on 13 April 2026 and end on 12 December 2026.
(16)The conviction of James Edward Barnes of burglary (CAN2022/6864) be confirmed and the sentence of 14 months imprisonment be imposed to commence on 13 December 2025 and end on 12 February 2027.
(17)The conviction of James Edward Barnes of damage property (CAN2022/6865) be confirmed and the sentence of 5 months imprisonment be imposed to commence on 13 October 2026 and end on 12 March 2027.
(18)The conviction of James Edward Barnes of burglary (CAN2022/6866) be confirmed and the sentence of 14 months imprisonment be imposed to commence on 13 March 2026 and end on 12 May 2027.
(19)The conviction of James Edward Barnes of burglary (CAN2022/6867) be confirmed and the sentence of 6 months imprisonment be imposed to commence on 13 December 2026 and end on 12 June 2027.
(20)The conviction of James Edward Barnes of dishonestly obtain property by deception (CAN2023/393) be confirmed and the sentence of 6 months imprisonment be imposed to commence on 13 January 2027 and end on 12 July 2027.
(21)The conviction of James Edward Barnes of dishonestly obtain property by deception (CAN2023/916) be confirmed and the sentence of 5 months imprisonment be imposed to commence on 13 March 2027 and end on 12 August 2027.
(22)The conviction of James Edward Barnes of dishonestly obtain property by deception (CAN2023/1108) be confirmed and the sentence of 6 months imprisonment be imposed to commence on 13 March 2027 and end on 12 September 2027.
(23)The conviction of James Edward Barnes of dishonestly obtain property by deception (CAN2023/1173) be confirmed and the sentence of 6 months imprisonment be imposed to commence on 13 April 2027 and end on 12 October 2027.
(24)The conviction of James Edward Barnes of drive motor vehicle without consent (CAN2023/415) be confirmed and the sentence of 9 months imprisonment be imposed to commence on 13 February 2027 and end on 12 November 2027.
(25)The conviction of James Edward Barnes of aggravated dangerous drive (first) (CAN2023/417) be confirmed and the sentence of 9 months imprisonment be imposed to commence on 13 March 2027 and end on 12 December 2027.
(26)The conviction of James Edward Barnes of joint commission of aggravated burglary (CAN2023/1180) be confirmed and the sentence of 24 months imprisonment be imposed to commence on 13 March 2026 and end on 12 March 2028.
(27)The conviction of James Edward Barnes of joint commission theft (CAN2023/3301) be confirmed and the sentence of 8 months imprisonment be imposed to commence on 13 August 2027 and end on 12 April 2028.
(28)The conviction of James Edward Barnes of unlawful possession of stolen property (CAN2022/5432) be confirmed and the sentence of 6 months imprisonment be imposed to commence on 13 November 2027 and end on 12 May 2028.
(29)The conviction of James Edward Barnes of minor theft (CAN2022/6862) be confirmed and the sentence of 2 months imprisonment be imposed to commence on 13 April 2028 and end on 12 June 2028.
(30)The conviction of James Edward Barnes of minor theft (CAN2022/6035) be confirmed and the sentence of 3 months imprisonment be imposed to commence on 13 February 2028 and end on 12 May 2028.
(31)The conviction of James Edward Barnes of possess knife without reasonable excuse (CAN2022/6856) be confirmed and the sentence of 1 month imprisonment be imposed to commence on 13 April 2028 and end on 12 May 2028.
(32)The conviction of James Edward Barnes of minor theft (CAN2022/6858) be confirmed and the sentence of 4 months imprisonment be imposed to commence on 13 February 2028 and end on 12 June 2028.
Total term of imprisonment
(33)The total term of imprisonment imposed is 60 months imprisonment, commencing on 13 July 2024 and ending on 12 July 2029.
(34)A nonparole period be imposed to commence on 13 July 2024 and end on 12 July 2027.
Addendum
37․Following the making of sentencing orders in this matter, counsel for the offender sought clarification as to the calculation of the presentence custody taken into account in sentencing the offender.
38․In relation to the sentence offences, the commencement date for the sentence offences portion of the sentence, taking into account the period of 153 days of pre-sentence custody, is 13 January 2023. That is, the sentence commences 153 days prior to the end date of the imposed custodial part of the Treatment Order.
39․In relation to the imposition portion of the sentence, the commencement date for the imposition portion of the sentence, taking into account the period of 10 days
pre-sentence custody, is 13 July 2024.
| I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Sentence her Honour Acting Justice Christensen Associate: Date: 31 January 2025 |
Schedule: Transcript of reasons of Refshauge AJ dated 19 December 2023
DPP v Barnes (Supreme Court of the Australian Capital Territory, Refshauge AJ, 19 December 2023)
HIS HONOUR: While dishonesty offences may be thought of by perpetrators as not so serious as, for example, offences of personal violence, that is not and should not be accepted. In the first place, the maximum penalties for crimes such as theft, dishonestly obtaining property deception, burglary, and aggravated burglary, are between 10 and 20-years imprisonment or fines of hundreds of thousands of dollars or both. Showing the seriousness that the legislature places on them. Of course, the maximum penalty is for the worst category of the offence but it still sets a comparison that shows the severity with which a sentence must express about the offence.
The second matter is, of course, that such offences do harm to the victim by depriving them of their property. In times of economic stress, this can cause greater hardship on the victims. It can, as noted in R v Hawkins, deprive them of property that they've worked hard to acquire. It can cause inconvenience, great distress if the property has sentimental value, and have other effects such as the extra trouble and bother of making insurance claims.
Thirdly, such offences have an effect more widely in the community, leading to members of the community feeling less secure for their property, making them sometimes suspicious and distrustful. It also has a wider effect in that the claims on insurance will increase insurance premiums more widely throughout the community.
It is in this context that James Edward Barnes now stands for sentence for 28 offences of which he's pleaded guilty. All but four of them; an offence of aggravated dangerous driving, offences of damaging property - I'm sorry, two offences of damaging property, one offence of possessing a knife without reasonable excuse, and dishonestly driving - I'm sorry, without a reasonable excuse. Dishonesty offences from the most serious to least serious ones.
Thus, the dishonesty offences are one offence of aggravated burglary, eight offences of burglary, two offences of attempted burglary, two offences of theft, four offences of dishonestly obtaining property by deception, one offence of dishonestly obtaining a financial advantage by deception, dishonestly driving a motor vehicle without consent, three offences of minor theft, and one offence of unlawful possession of stolen property.
On sentence, the prosecution carefully and thoughtfully, represented by Ms E Bayliss, tendered, without objection, a prosecution tender bundle. It contained - behind the very helpful and prescribed cover sheet - the committal and transfer documents, an agreed statement of facts, Mr Barnes' criminal history, four compensation schedules, a report dated 11 November 2022 of an alleged breach of bail - and a report of - dated 11 November 2022 of an alleged breach of bail.
Mr Barnes had sought that any sentence of imprisonment be served by a drug and alcohol treatment order or treatment under section 12A of the Crimes (Sentencing) Act 2005 of ACT Sentencing Act. Accordingly, on 5 July 2023, drug and alcohol treatment assessments, suitability assessments, under section 46J of the Sentencing Act were prepared. These were included also in the prosecution tender bundle. They were the drug and alcohol treatment assessment report dated 29 August 2023 of ACT Corrective Services, the Drug and Alcohol Sentencing List suitability report dated 25 August 2023 of Alcohol and Drugs Services, as well as an amendment to that report dated 30 August 2023, a case plan prepared by Alcohol and Drug Services was also included, as was a letter dated 23 August 2023 from Canberra Recovery Hub, a drug and alcohol program of the Salvation Army.
Mr N Deakes who appeared very professionally and helpfully for Mr Barnes, tendered, without objection, a letter dated 27 November 2023 from Canberra Recovery Hub and a psychological report dated 27 November 2023 of Ms Lisa Morris forensic psychologist. There were no challenges to the contents of any of this tendered material. Both counsels provided very helpful oral - written submissions, they supplemented them with oral submissions, engaging respectfully in debate with the court and answering questions.
From this material, the court makes the following findings.
The facts
It is, of course, essential for the court to make findings of the facts that are the bases for the charges proffered against an offender. While it's most helpful to the court whereas here the parties can agree on the facts, it's still the duty of the court to make the findings on which the sentence or sentences is or are to be based.
The 28 offences were spread over a period between 22 April 2022 and 4 January 2023. They were committed on 13 days between those dates, and it's convenient to address the offences chronologically in that way. The first two offences were said to have been committed on 17 April 2022 but the facts tell a different story. This date, however, does not seem essential in such a way as to affect the validity of the charge. See R v Fizer.
Thus, Mr Barnes advertised the sale of a bicycle on an online classified advertisement and community website, Gumtree. It had, in fact, been stolen sometime before but there was no evidence that he had stolen it. On 22 April '22, the victim saw the listing and contacted Mr Barnes to arrange a meeting which they agreed to do the next day.
On 23 April 2022, the victim saw Mr Barnes riding the bicycle and approached him. Eventually, he agreed to purchase it. Mr Barnes wanted cash but the victim could not do that and they agreed a price of $1,000. Arrangements were made for the victim to pay online which he did and arranged for a record of the transaction to be voided to Mr Barnes at an email address, '[email protected]' Mr Barnes then left, thus the offence was committed on that day. The charge date should probably be amended as I possible, see R v Hancock.
Shortly after that, a woman approached the victim and asserted that bike was, in fact, owned by her partner and had been stolen from him. She had taken photographs of the transaction between the victim and Mr Barnes. The victim sent images of the bicycle and of the photos that the female had sent him to the police the next day. After inquiries, it was ascertained by police that the bicycle had, in fact, been stolen and the victim returned it to the owner. He was, of course, out of pocket the $1,000 he had paid for a bicycle that Mr Barnes had no right to sell.
Police tried to contact Mr Barnes but could not do so until he was arrested on other matters on 4 June 2022 and was then charged with obtaining property, the $1,000, by deception and possession of stolen property, the bicycle. On 25 May 2022, Mr Barnes went to Blackfriars Holy Rosary Parish Church in Watson where he entered the church by using a jimmy tool to force open the locked front door, causing some damage, though there was no value given of it in the evidence. He broke some glass at the front door. It was a little unclear, but it appears that there may have been a stand inside the church. He then entered the office at the rear of the church, rummaged in a number of the drawers and then scattered items around the floor. When he left the premises, he left a metal bar behind which parish priest, Father Mannes Tellis confirmed did not belong to the parish. Items were stolen from the church, but no evidence was available to show that Mr Barnes had stolen them. These events led to the charges of burglary and damaging property.
The next day at about 10.16 pm, Mr Barnes went to a laser tattoo removal business in Canberra City, ACT. He attempted to open the front door using the handle, but it would not open, and he left. He returned about 15 minutes later with two tools and used one to try and push it between the door and the frame in an attempt to open the door. He also kicked the door with his foot. The door would not budge, and he left. He was clearly captured on closed circuit television, CCTV footage trying to enter the premises, and which was shown to police by the owner of the premises two days later. This led to the charge of aggravated burglary.
Later that day, Mr Barnes went to an office building in Canberra City about 600 metres away from the other business, arriving at about 11.03 pm. He went into the building, possibly through an unlocked side door. He then searched through drawers and cupboards, located a safe containing 15 keys including a master key for the building. Using a trolley, he took the safe on the trolley into the elevator and left through the basement of the building. Again, he was captured on CCTV footage. The safe and keys have not been recovered. The safe had a replacement value of $1,047. No value was given for the keys, but because the keys opened a number of locks, it was necessary, it appears to change many locks as the one key opened various numbers from one through 41, 180, 223 and 310. Nevertheless, these events led to charges of burglary and minor theft being laid.
The next day, 27 May 2022, Mr Barnes entered a basement carpark to an apartment complex in Belconnen, ACT. He cut the lock to a storage cage and took from it a mountain bike. This was captured on CCTV footage in the basement. He then advertised it on the website Gumtree for sale. The owner, having found the theft, looked on the online website, saw what looked like his mountain bike being advertised and arranged for his wife to make contact with the seller, Mr Barnes. An arrangement was made to meet later that day after negotiating the price down from $1,800 to $1,408.
The owner took a friend to meet Mr Barnes which they did at about 4.25 pm on 27 May 2022. Mr Barnes was riding a bike which the owner recognised as his from the pump attached to the frame. The owner then went up to Mr Barnes, told him that the bike was his and had been stolen earlier that day. Mr Barnes challenged that and said he had purchased it from a friend before fixing a few defects. The owner told Mr Barnes that the police had been called and he should stay there. Mr Barnes said he was not waiting around but told them that his name was James Barnes. The owner then reported the matter to police. The events led to Mr Barnes being charged with burglary and theft.
On Saturday, 11 June 2022 at about 11.03 am, Mr Barnes went to the rear door of a medical practice in Watson, ACT and attempted to open the rear door of the practice. He could not get in. He then left and returned about 40 minutes later with a knife, which he then used to open the door of the medical practice, but he was still unable to actually enter. These events were captured on the CCTV footage outside the medical practice, showing Mr Barnes clearly depicted in them. These were the bases for the charge of attempted burglary and possessing a knife without a reasonable excuse.
On 19 June 2022 at about 2.54 pm, Mr Barnes entered a secure basement carpark of an apartment complex at Dickson, ACT. He was carrying bolt cutters with him. He took an electric bicycle and took it to an exit where he left in while he continued to look through storage cages. He then returned to the bike, leaving the premises but taking the bicycle with him. Again, the basement carpark had a CCTV system which, very clearly identified Mr Barnes as the perpetrator. Mr Barnes was, as a result of these events, charged with burglary and minor theft.
On 23 June 2022 at 3.54 am, Mr Barnes went into a nail salon in Dickson. He used an unidentified object to force open the front door. He then left to park his bicycle on the other side of the store. Returning to the front door, he then forced it open, entering and then walked to the front counter. He went into the store and entered the staff room. He soon after left, taking a box of prescriptions with him. Again, there was CCTV in the store and the footage from it showed him clearly as the trespasser.
Later that day, in the late evening, Mr Barnes went to the bicycle racks outside a sports club in Turner, ACT. He took an object from a duffel bag he was carrying and used it to cut off the cable chain restraining an electric bicycle. He then took the bicycle and rode off on it. These events were captured on the CCTV at the club and showed Mr Barnes clearly. He was charged with theft.
On 27 June 2022 at about 8.15 pm, Mr Barnes entered a fast-food outlet at Belconnen. He entered the premises and, after searching it, removed a chair at the front counter of the restaurant. He then cut a security cord which allowed him to remove the cash draw completely. It was empty so he left it on the floor. He jumped over the counter of the restaurant. These events were also captured on CCTV. As a result he was charged with burglary and damaging property.
He then went to Gungahlin, ACT, arriving at a restaurant there at about 9.18 pm. He forced entry to the restaurant with an unidentified object and searched the premises using a screwdriver to open a cash draw, causing damage. He then left. These events were clearly captured on the CCTV footage, which was seen by police later. When police later went to his residence, his ex-partner was there and produced a bag of clothing belonging to Mr Barnes, which included clothing that he had been wearing at the restaurant and at the fast-food outlet. He was charged with burglary and damaging property as a result of these events.
On 17 November 2022, Mr Barnes used two credit cards that were not his to make purchases at four retail outlets, three in Ainslie, ACT and one in Dickson. The amounts of the purchases were respectively $60, $83.45, $47.99, and $94.75, a total of $286.19. The cards, however, had been stolen earlier that day from the office where the owner worked. There was no evidence that Mr Barnes had stolen the cards. Police went to the Ainslie shops and inspected footage from CCTV at a number of the premises which clearly showed Mr Barnes involved in the transactions. They also obtained receipts for various of the transactions. They reviewed the CCTV from Dickson also. As a result, Mr Barnes was charged with obtaining property by deception as a rolled-up count to cover the four transactions.
On 29 November 2022 at 11.00 am, Mr Barnes went to a department store in Belconnen and purchased some sunglasses for $307 using various payment methods, including a payment of $90 using a business credit card stolen earlier that day from a pub in Fyshwick, ACT and two payments of $90 and $98 using a personal credit card of the same person and also stolen at the same time from the same place and also cash. He then entered another electronic equipment retailer and purchased a mobile phone for $199 using the business credit card for two sums of $90 each and the balance in cash.
Next, he entered a newsagency and gift shop, purchased eight ‘Scratch-It’ tickets for $65 using the stolen personal credit card. Then he went to a jeweller and purchased a watch for $299 using the stolen business card and personal cards for paying each $90 and using other unknown credit cards and $50 in cash. Mr Barnes then went to a shoe store where he purchased some white shoes for which he paid $80 on the business card and $60 on the personal card. He gave the store his email address as '[email protected]' to link to the purchase. He then went to a currency exchange store and converted $40 of US dollars into $63.90 Australian dollars using the business credit card. He also gave his name and phone number to link with the purchase.
Police, after speaking to the credit cards owner, went to the Belconnen Westfield shopping centre and made enquiries of the various retailers with which Mr Barnes had dealt with using the stolen credit cards. The police viewed CCTV footage and obtained the phone number of Mr Barnes from the currency exchange store. As a result of these events, Mr Barnes was charged with two counts of dishonestly obtaining property by deception, one for the personal card in the sum of $432 and one for the business card in the sum of $440 and also dishonestly obtaining a financial advantage by deception, being the transaction in the currency exchange.
On 1 December 2022, Mr Barnes drove a motor vehicle, a Kia ProCeed motor vehicle in Watson, ACT. The motor vehicle had been stolen on 24 or 25 November 2022. There was no evidence that Mr Barnes had stolen it. He had, however, been in control of it on 26 November 2022 when he was seen and followed by the owner, where he had custody of it where it was parked on the ground floor of the Belconnen mall, and he sat in it for a while. Police went to where the vehicle was being driven by Mr Barnes in Watson and was able to identify him clearly.
Police drove up to the vehicle as it was driving out of a complex at Watson, stopping with both vehicles ‘nose-to-nose’ in the driveway. Mr Barnes, however, backed the car away and drove around the police vehicle, accelerating into Higginbotham Street, Watson. Police followed the vehicle, activating their vehicle emergency lights in an effort to conduct a traffic stop and directing Mr Barnes to do so. Mr Barnes, however, did not stop the vehicle. In fact, he drove it across a green belt and accelerated into Dowling Street, Watson. Because of safety issues, police terminated the pursuit. Later, they saw the vehicle again accelerating across another green belt before driving out of sight. Later, however, the vehicle was seen stationary in the Watson complex. They took control of it and forensic examination showed DNA from Mr Barnes in the vehicle. He was charged with dishonestly driving a motor vehicle without consent and aggravated dangerous driving.
Finally, on 4 January 2023, Mr Barnes, with another unidentified male, went to the underground car park of an apartment complex in Bruce, ACT. They went to a storage unit in the carpark from which they removed various items, being a television set, and an electronic scooter. They then loaded the television set onto the scooter and left the premises. These events were captured on CCTV footage in the carpark.
On 16 January 2023, Mr Barnes was arrested. He was charged with aggravated burglary by joint commission and theft by joint commission. As to the first, nomenclature is obscure. The pleading is simply that of an aggravated burglary, namely that at the time of the burglary, Mr Barnes was in company with another person. The joint commission of an offence was pleaded by the reference to section 45A of the Criminal Code 2002 of the ACT. This, it appears from R v Elliot, R v Allred, may be adequate. As there have been no submissions about this in these proceedings, no other findings should be made.
The proceedings. Mr Barnes was first arrested on 4 June 2022, where he was charged with the offence of dishonestly obtaining $1,000 by deception. He was granted bail on 6 June 2022. He was next charged with offences on 30 June 2022 and in this case, was remanded in custody. The evidence before the court is unclear about the offences for which he was then charged, but he was further charged with other of the offences committed between 25 May 2022 and 27 June 2022 on 20 July 2022. He was, however, remanded in custody on 30 June 2022 and remained in custody until 9 November 2022.
On 17 August 2022, he pleaded not guilty to the charges which had then been preferred. This required the prosecution to prepare the brief of evidence for those charges. He was, however, further charged on 17 August 2022 with the offences committed on 27 May 2022 and he then did not plead to them. On 18 September 2022, he was charged with the offences committed on 24 and 25 May 2022. He did enter pleas of not guilty to them.
After a number of adjournments, all matters with which he had then been charged were mentioned and he entered pleas of guilty to them on 8 November 2022. He was also granted bail to attend a residential drug rehabilitation facility, Oolong House. According to the report of an alleged breach of bail, he did attend on 9 November 2022, but because of a positive result to drugs on admission, he was not admitted and required to return the next day with an expectation that he would produce a negative result on urinalysis for drugs. He did not attend. He did not make contact with the community corrections officer supervising him. As noted above, he later committed further offences.
He was then arrested on 16 January 2023, as noted above. He was remanded in custody and has remained in custody since then. He was charged with the offences committed on 17 November 2022, 29 November 2022, 1 December 2022 and 4 January 2023 on 7 February 2023. He did not enter pleas for these offences until 22 June 2023 when he pleaded guilty. On that day he was committed to this court for sentence and the summary charges were transferred also.
On 31 July 2023, he was dealt with in the ACT Magistrates Court for charges of escaping from lawful custody on 16 January 2023, failing to appear in accordance with his bail undertaking on 8 December 2022, when he was bailed to attend at Oolong House and three offences of minor theft committed on 26 April 2022, 15 May 2022, and 20 June 2022.
He was sentenced to eight months imprisonment to commence on 5 September 2022 and end on 4 May 2023. Thus, while he has been in custody on these offences for a total of 559 days, he has been a sentence prisoner for 242 days and so the period of presentence custody, which is required to be taken into account on sentence, is 343 days. His plea of guilty was, in each case entered in the Magistrates Court, though in some cases, following a plea of not guilty. Thus, in those cases, somewhat reducing the utilitarian value of the plea to the criminal justice system.
The offences. As noted in R v Killick, there are two primary considerations in sentencing. The objective seriousness of the offences committed and the subjective circumstances of the offender. In this territory, the Sentencing Act as set out in section 33 mandating mandatory considerations that a court sentencing an offender must take into account and section 34 sets out those matters that are irrelevant and must not be considered.
The objective seriousness is described in section 33(1a) of the Sentencing Act as the nature and circumstances of the offence. There are a number of matters encompassed in this consideration. The first of the matters is the factual basis of the offence. This has already been found, as noted above. Then there is the maximum penalty provided for the offence. This is highly relevant as noted in Markarian v The Queen. This is because it’s the legislatures prescription of the penalty for the worst category of offence, but also because it provides a comparison with other offences as to the relative seriousness. Finally, taken with all the other factors, it provides a yardstick.
The other matter to be asserted is the relative seriousness of the actual offence committed compared with other versions of the offence. That is to say each offence can be committed in a wide variety of ways and under a diversity of circumstances. In order to identify the seriousness of the offence, it’s necessary to identify the particular factors that will inform the seriousness of the offence. Singh v The Queen. Thus, at the time, the courts have identified particular factors of each offence that are aggravating or mitigating factors. These should be identified in any particular case to indicate the particular seriousness of the offence actually committed.
Aggravated burglary is an offence under section 312 of the Criminal Code 2002 of the ACT which attracts a maximum penalty of 20 years imprisonment or a fine of $320,000 or both. It is, thus, a very serious offence though by no means the most serious offence in the criminal calendar. That it is by joint commission under section 45A of the Criminal Code means that where the offender has entered into an agreement to commit an offence and the offence is committed in accordance with the agreement, the offender is guilty of the offence, even if he or she does not commit each of the acts required to constitute the actual offence.
The general factors of aggravation or mitigation can helpfully be considered at the same time as the examination of those for burglary. Since it is the same offence but aggravated by one of two factors. Here, there was only one such factor, namely that Mr Barnes was in company. There was no weapon involved. While this made Mr Barnes liable for the offence, his actual level of participation is relevant to the identification of his actual moral culpability. R v Carvery. Here, Mr Barnes did engage in all the relevant acts to constitute the offence.
Burglary is made an offence by section 311 of the Criminal Code, for which a maximum penalty of 14 years imprisonment or a fine of $224,000 or both is prescribed. It is, thus, a less serious offence than the aggravated one, but still serious. The courts have, over the years, identified a number of factors that are relevant. These have been summarised by reference to the authorities in R v McHughes (No. 3). In this case, it’s not necessary to set out each of them, but to note those that are relevant here.
The first point is that none of the burglaries involved the actual trespass into a residence. That would have been more serious. Those involving commercial premises are the least serious. Those involving basement secure carparks are somewhere more serious as they are associated with residential properties. Arguably, the fact that it was a sacred space for worship made the burglary of Blackfriar’s Holy Rosary Parish Church more serious. Those of the burglaries where there was damage on entry are more serious, though in none of the cases was the damage very considerable. Though, in the first, at the Black Friar’s Holy Rosary Parish Church, there was broken glass. Unfortunately, where there was damage, there was no evidence of the cost of such damage, and it seemed to be moderate. Similarly, there was, in some cases, a strewing of items around inside the premises into which Mr Barnes had entered as a trespasser. But no damage done while Mr Barnes was trespassing, apart from the broken glass cabinet in Black Friar’s Holy Rosary Parish Church.
In none of the cases, were the occupants likely to have been there, which would have been an aggravating factor, and there was no confrontation, also an aggravating factor. There seemed no particular premeditation, though in some cases, an implement was used suggesting that it was not completed opportunistic. The motivation was expressed succinctly in the suitability assessment of alcohol and drug services, where Mr Barnes is reported as having said that he was, ‘Using ice at the time and the offences were all to get money for ice. I would go looking for somewhere to feed the habit, which I wouldn’t have done if I wasn’t on ice.’ There was no challenge to this evidence.
None of the premises seemed to have been targeted or the subject of prior burglaries so far as the evidence shows. There was no victim impact statement to show any particular trauma suffered by the occupants or owners, other than the obvious distress and a level of feeling of insecurity that they may have felt. The amount of property taken varied, and the value was not always clear, but this is a matter for a separate offence. Although the seriousness did vary a little, the burglaries were basically unremarkable versions of the serious offence, but not of particular seriousness in themselves.
In two cases, the burglaries were attempted but not successful. While an attempt is punishable as if the offence had been committed, section 45 of the Criminal Code, the seriousness is less since the offences were only attempted, not completed. See Kahina v The Queen. It is to be noted that, had Mr Barnes been able to have effected entry, he would have committed the offence, though his efforts were pretty limited. That is also relevant. R v Lovelock.
Theft is prescribed by section 308 of the Criminal Code, which sets a maximum penalty of 10 years imprisonment or a fine of $160,000 or both. It is, thus, less serious than the burglary offence, but still potentially a serious offence for which imprisonment is frequently imposed. Of course, the offence encompasses the theft of very small amounts, although these are more usually charged as a minor offence. The offence encompasses also the taking of very valuable property, perhaps many thousands, perhaps millions or billions of dollars in value.
The primary consideration in such an offence is the value of the property taken. In the first case on 23 June 2022, the item stolen was a bicycle. It was not recovered, which makes the offence somewhat more serious. The value of the bike assessed in the compensation schedule is $2,497. That is a significant value, though not a very large amount in itself. For the other theft on 4 January 2023, the items were a television set and a scooter. There is no evidence to suggest that they were returned to their owner. In submissions, it was said that the value was $2,300 and there was no challenge to that. Whereas with the second theft, it’s associated with a burglary, it’s generally the practice that the sentence for the theft will be wholly or substantially concurrent with the sentence for the burglary. Dawson v The Queen.
The monetary value is not the only value that is relevant. Sentimental value or inconvenience caused by the theft is all relevant. There was, however, no evidence of any particular such value here. Minor theft is criminalised by section 321 of the Criminal Code and renders Mr Barnes liable to a maximum penalty of six months imprisonment or a fine of $8,000 or both. This is also a version of theft, and so the principle applies to that offence also.
In the first theft, the value of the property was assessed at $1,072.26, not a very substantial value, though a small amount over half the maximum for the offence. Nevertheless, the loss of the keys would be a significant inconvenience and also cause substantial cost in changing the locks. In the second offence, the value of the bike taken was a little more at $1,295. In the third offence, no value is given in the evidence of the medical prescriptions and box. They would be likely to have little monetary value. The inconvenience of losing prescriptions may have been significant but in the absence of any evidence of a victim impact statement, no serious consequence can be found.
Dishonestly obtaining property by deception prohibited by section 356 of the Criminal Code and the section prescribes a maximum penalty of 10 years imprisonment or a fine of $160,000 or both. It’s a form of receiving and is serious because of course, if there are no receivers, there would be fewer, if any thieves. Again, the seriousness of the maximum penalty is in part because the offence scans a very great range of the value of the property, which is the most significant factor, see R v Walker. It is often associated with the misuse of stolen credit cards, R v Dowling.
Relevant factors are the value of the property as noted, the number of transactions, and the period of time over which the offence is committed. It is always relevant to consider if there was any planning involved.
The first offence was a somewhat planned offence for Mr Barnes had to have the bike, arrange for its advertisement, arrange for the means of receiving the payment and then attending to sell it. The amount involved $1000, was by no means significant, but not a very large sum. I am sorry, it was by no means insignificant, but not a very large sum. Though for the value it would have – though for the value it would have likely not have been insubstantial. Nevertheless, all things considered was a relatively unsophisticated offence.
The other offences involve the use of a credit card by which Mr Barnes obtained property worth $286.19, an even lesser amount. The offence is a rolled up offence involving four transactions. The approach to such offences has been set out in R v John as follows:
The approach may be summarised as follows. For sentencing purposes, the rolled up count is one charge and the sentence may not exceed the maximum penalty for the offence charged. Nevertheless, the criminality encompassed within the count is greater than were the count to be constituted by any one offence. The sentence is not necessarily and perhaps not usually the sum of the sentences that would be imposed for the offences comprising the account. However, in an appropriate case, it may be, and the fact that the count is a rolled up count may have a bearing on the application of the relevant principles as to accumulation or concurrency.
This here was an unremarkable version of the offence with no great seriousness. The third and fourth offences committed on 29 November 2022 were of a similar nature. Here, there were two credit cards. It was a somewhat ingenious way then for addressing the issue where each purchase, if it was over $100, would require a personal identification number, PIN, for the purchase. But that was not information that Mr Barnes had, so he partially paid with each card an amount less than that for which a PIN was required. Again, the charges were rolled up charges for a number of transactions were involved.
The items purchased were not apparently directly involved with securing funds to pay for drugs. The inhibitions that his drug use would have removed may well have facilitated the offences. The amount involved was $432 in one case and $440 in the other. Dishonestly obtaining a financial advantage by deception is an offence against section 332 of the Criminal Code and renders Mr Barnes liable to a maximum penalty of 10 years imprisonment or a fine of $160,000 or both.
It is thus the similar offence for the obtaining property by deception. It is, in fact, the same offence as that but where what is obtained is not property but a financial advantage. Here, the advantage was that Mr Barnes obtained the capacity to use the money which he had as American dollars but not able to spend in Canberra. The amount involved was $98, a small amount and clearly related to his drug use.
Damaging property is criminalised by section 431 of the Criminal Code which specifies a maximum penalty of 10 years imprisonment or a fine of $160,000 or both. It is thus a serious offence but also encompassing small amounts of damage of $100 or less up to many thousands of dollars when the detectives come calling to say that a car has been damaged or a house or other item involved. Here, the first offence was the smashing of the glass cabinet at Blackfriars Holy Rosary Parish Church. The offence was apparently committed so as to enable the burglary. Regrettably, no value was given in the evidence but the smashed glass would not be trivial or substantial, and the drug takeover – I'm sorry, and the damage to the doorframe likely of a low value.
The second offence was at the fast food store on 27 June 2022 where a security cord was cut. There was no value for the damage to the cord. It facilitated the taking of the cash drawer, though it was empty. The risk of more serious harm would have been if there had been cash is obvious but that is not the offence. It is not a serious offence.
The third offence was at the restaurant on the same date when the use of a screwdriver to prise open the cash drawer was undertaken. The causing of damage while on the premises would ordinarily be an aggravating factor in the burglary but has been separately charged, and so care must be taken to avoid double punishment. There is no evidence as to the value of the damage. It also seems not to be a serious offence.
Dishonestly driving a motor vehicle without consent is an offence against section 318(2) of the Criminal Code and renders Mr Barnes liable to a maximum penalty of five years imprisonment or a fine of $80,000 or both. It is thus a much less serious offence than the others but still punishable by imprisonment which is often imposed. The offence has been considered carefully in R v Connors. The actual offence encompasses both driving and riding as a passenger in a stolen motor vehicle. The driving as here is the more serious offence. The motor vehicle was recovered making it a less serious version of the offence.
The period during which Mr Barnes had the car is relevant. Here, he had control of it for five days, a not inconsiderable time during which the owner was deprived of it. While relevant, there was no value of the motor vehicle on the evidence but it was clear it was not a business or a luxury car. The age and condition was not stated in evidence so a general assessment cannot be made of the value by the court. It would have been generally a significant amount but not a substantial amount.
The manner of driving is relevant but here is separately charged. Apart from the manner of driving, separately charged, it was not used for the commission of any other offence. Aggravated dangerous driving is an offence proscribed by sections 7 and 7A of the Road Transport (Safety and Traffic Management) Act 1999 of the ACT for which the maximum penalty is three years imprisonment or a fine of $48,000 or both. It is thus still somewhat serious but among the less serious of the current offences.
The offence has been considered in R v Seymour where are number of factors are identified, as in other cases. This includes, essentially, the manner of driving and whether other traffic users are put at risk which includes a consideration of excessive speed, impaired driving such as under the influence of alcohol or drugs, poor driving such as driving on the incorrect side of the road or on a footpath, driving through red traffic lights, erratic driving and being involved in a police pursuit.
Other matters include, (a), the level of the traffic in the area of driving, and the other road users or persons nearby, such as pedestrians or adjacent property owners that were present, including whether it was near a school area or an aged care facility or similar facility. The more persons exposed, the more serious the offence; (b), the period of driving and the distance travelled; (c), any actual collision or likely collisions with other vehicles, roadworks or structures, including whether road users had to take evasive action. Should any collision cause damage or injuries, those are relevant aggravating factors; (d), whether there were any passengers in the vehicle.
Here Mr Barnes did the motor vehicle off the road on to what were not vehicular spaces, though there was no evidence about the level of traffic and no evidence of likely harm caused. Mr Barnes did fail to stop when signalled by the police, but this was a fact that made it an aggravated offence as charged. There was no passenger in the vehicle and the distance travelled and time taken was not significant.
Unlawful possession of stolen property is made an offence by section 324 of the Criminal Code and legislates the maximum penalty of six months' imprisonment or a fine of $5,000 or both. It is a version also of receiving but a less serious version, R v Roux (No. 2), and so similar considerations apply. The summary of consideration, set out in R v Guy, is the value of the property, whether there was planning or sophistication in any event, and the circumstances, how the property came into the offender's possession.
In this case, the bike had been stolen by persons unknown. The value was at least $1,000, which is a price sought by Mr Barnes. There was no apparent planning or sophistication. In this part of the offending, and the evidence was silent as to how Mr Barnes came into possession of the property, the bicycle.
Possessing a knife in a public place without a reasonable excuse is a crime under section 382(1) of the Crimes Act 1900 of the ACT and which provides for a maximum penalty of six months' imprisonment or a fine of $1,600, or both. In R v Foster, the court pointed out that possession of knives is a serious matter because of their potential to cause serious harm to adults. Eventual use is also relevant. Here it was not used as a weapon, but to gain entry to a place where Mr Barnes wanted to enter and steal goods from inside.
Subjective Circumstances
As noted above, the second highly relevant matter that a court, in sentencing an offender must consider, are the personal circumstances of the offender. Mr Barnes was born 27 years ago, the eldest of his parents' three children. He has a younger brother and sister and a half sister as well. He was born in Canberra and apart from a brief time in Nowra, New South Wales, has lived here since. His father was a gambler which put stress on the family as his losses were at times crippling. He left the family home when Mr Barnes was four years old. His mother repartnered. Family home, however, was chaotic. His mother drank alcohol, and with his stepfather, smoked cannabis. His stepfather was very violent and especially to Mr Barnes as he was the eldest child.
When he was 10 years old [redacted] which has left him with a psychiatric injury. He has been diagnosed with complex post traumatic stress disorder (CPTSD). This led him to run away from home for the first time. He lived in [redacted], being exposed to significant alcohol and drug use. He would frequently be returned home by police but would then run away again.
[Redacted]. His mother then moved to Nowra and at age 12 he joined her there. At age 15 [redacted]. He went to live with a friend, living there for about 10 to 11 months.
Mr Barnes did attend school, but it was not a happy experience. He had learning issues, and the educational support he received he said 'didn't help'. As a result, he has difficulty in reading and writing. He described that he 'never paid attention' and 'didn't listen'. He was suspended for smoking cannabis and getting into trouble. He experienced bullying. [Redacted]. He has had no further formal education.
[Redacted]. He has had no other employment in the community. He is, however, currently employed in custody in the kitchen.
Mr Barnes has had a number of relationships, the most significant commenced when he was 17 years old and lasted for about two and a half years. His daughter, now aged nine years old, was born of that relationship. When it broke down, Mr Barnes began using methadone and was 'going down a bad path'. He looked after his daughter for a period, though there were different reports as to how long that period was. He reported to Ms Morris, a forensic psychologist, that he and his ex-partner reunited three and a half years ago for about two years, and then she took off with his daughter. [Redacted].
Mr Barnes has had a number of other relationships but an earlier one was marred by drug use and anti-social behaviour. The most recent relationship, however, is much more positive without drug use. Mr Barnes has no significant physical health issues. He has injured his left hand some time ago which required a cast. He repeatedly removed it, however, and seems to have a habit of going against medical advice. He has had seizures in the community on three occasions over a five-year period. He was hospitalised only overnight stays for each of them. He has significant mental health issues which will be dealt with separately later.
Mr Barnes began drug and alcohol use at an early age, perhaps unsurprisingly given his chaotic childhood. He commenced drinking alcohol at about 10 or 11 years of age. He would drink a whole four litre cask of wine a day. He appears to have given up alcohol 17 years ago and has not drunk much since then. He says he 'last had a drink about 12 months ago because it's not really my thing'.
He also started using cannabis at about the same time, perhaps a little later. Initially, he was smoking about one and a half grams a day. Again, he has decreased his use over time to where he says he last used about 18 months ago and does 'not smoke anymore'. His use of his drug of choice, methamphetamine, began when he was about 19 years of age when his most significant relationship broke down. Within a year, he was using daily and intravenously. By age 25 years, he was using between a gram and 3.5 grams daily.
While he has been a tobacco smoker, he has not done anything in that area for about a month now. The only other substance he has used is gamma hydroxybutyrate (GHB) but only a couple of times and it is not really his drug of choice. Mr Barnes has had no alcohol, tobacco or other drug treatment though he has expressed an interest in it.
Mr Barnes has a significant criminal history though it is not as serious as may be seen in this court in other cases. [Redacted].
[Redacted], he has 24 offences on his record. Over 60 per cent are dishonesty offences including break, enter and steal or burglary and aggravated burglary - basically the same offences - shoplifting, theft, dishonestly driving or riding in a motor vehicle without consent, obtaining property by deception, possessing stolen property and minor theft. He has also been found guilty of possession of a knife. Thus, he has committed most of the current offences before. His first period of full time custody was in 2019. He has had a number of community based orders and breached them.
Mr Barnes participated in the process for the suitability assessments. He was found to be future focused towards engaging in treatment. He was found to be friendly, polite and interested. He asked questions about the treatment order and his obligations, and had his questions answered. He displayed some insight and expressed a desire to change his lifestyle.
Mental health
Ms Lisa Morris provided a detailed report on the mental health of Mr Barnes. It was carefully and professionally prepared, and very helpful. Mr Barnes was diagnosed with attention deficit hyperactivity disorder (ADHD) and dyslexia as a child. That, of course, would explain some of his juvenile behaviour. He has become eligible for assistance from the National Disability Insurance Scheme for these matters, though he is not currently prescribed any medication for them.
An assessment by Ms Morris determined that Mr Barnes met the criteria for CPTSD. When asked about any involvement of this in the commission of the offences, Ms Morris said:
The description given by Mr Barnes indicates that he was aware that the conduct was wrong but that he would not experience consequences. Given the apathy with which Mr Barnes presented during interview, it's likely that he was experiencing a flattening of mood and disregard for his well being. This can be associated with his trauma condition as a sense of helplessness arising from emotional overwhelm and fatigue. Thus, while Mr Barnes knew that his conduct was wrong, he did not appear to care what the consequences were in that moment.
This can be accepted as a finding that his mental health condition impaired his ability to exercise appropriate judgement, impaired his ability to make calm and rational choices, and to think clearly, and had a disinhibiting effect. It impaired his ability to appreciate the wrongfulness and seriousness of his conduct, obscuring his intent to commit the offences and causally contributed to the commission of the offences.
Mr Barnes is not currently prescribed medication to assist his mental condition and, in particular, his ADHD. Accordingly, it did attract the application of the principles set out in R v Verdins. Thus, his mental condition seems to reduce his moral culpability and makes denunciation less likely to be a relevant sentencing objective.
[Redacted]. This moderates the role of general deterrence in sentencing. Similarly, as very properly accepted by Ms Bayliss in her written submissions, it was stated:
It is open to the court to find that Mr Barnes' mental conditions reduce his moral culpability.
Specifically, in relation to his intellectual disability, Wellspace Australia states:
Mr Barnes can comprehend basic, simple information. Due to his ODD, he can have difficulty understanding complex concepts, ideas or written information at an age appropriate level. When he is in a heightened state due to his ODD and impaired emotional regulation skills, Mr Barnes can have difficulty processing information. Mr Barnes requires information to be delivered in a simple manner that facilitates his understanding.
Ms Morris similarly articulates that:
The offender presents as guarded which gives the impression of having poor comprehension skills in an attempt to avoid topics of discussion. These symptoms suggest that because of Mr Barnes' neurodivergence and avoidance strategies arising from his post traumatic stress disorder, he may not learn as quickly as others from punishment. Accordingly, if there is a more appropriate disposition, then specific deterrence and punishment may not play so prominent a part in the sentencing.
Childhood disadvantage
Closely related to this is the disadvantage that Mr Barnes suffered as a child. He was exposed to family violence, [redacted] which has been diagnosed as leading to CPTSD and he was exposed to drug and alcohol usage. He fled his home from the ages of eight to 12 years old. This has led, it would seem, to significantly disrupted school attendance and suspension also. The consequence of this is shown in the Bugmy Bar Book section on interrupted school attendance and supervision is that such children who struggle at school may be more likely to commit criminal acts.
This makes the intellectual issues referred to above more significant, especially given the difficulty Mr Barnes has with reading and writing. The consequence is that such disadvantage is relevant to sentence. This was clear in Bugmy v The Queen as summarised by the court in R v KN:
In summary, a history of disadvantage and deprivation may be a mitigating factor on sentence (see Bugmy). What is clear from Bugmy and subsequent case law is that, (a), the effects of disadvantage and deprivation do not diminish with the passage of time (Bugmy). The Bugmy principles do not diminish in relevance where an offender has an existing criminal record (Bugmy and R Irwin), and, (c), the application of the Bugmy principles is not discretionary (Irwin).
These principles, as accepted by Ms Bayliss, apply here.
Compensation
Claims were made by four of the victims for compensation. The purchaser of the bike, who paid Mr Barnes $1,000, sought that it be returned. The owner of the safe, which, with keys, had been stolen, sought $1,072.36, being the value for a replacement safe. The owner of the second bike stolen on 19 June 2022 sought $2,497 for the loss of that bike. Finally, the owner of the bike stolen on 23 June 2022 sought $1,295 for the bike that had been stolen from him.
A very helpful analysis of the decision of whether to order that compensation be paid was made in Victoria in R v Miric. The principles and approach are set out in R v Steen as applicable in this territory. There it was said, 'Justice Bell made a most useful and thorough analysis of the principles surrounding the making of compensation orders in R V Miric'. His Honour made the following points:
The making of such orders are discretionary. It is not wrong in principle, however, to order compensation against an offender without means. The order is a means of vindicating the invasion of the victim's rights by avoiding the need for expensive civil action.
The court may have regard to the effect such an order may have on the rehabilitation of the offender and the means available to meet such an order. An order for compensation is not a punishment and is different in its effect on sentencing to a confiscation order.
A lengthy period of payment is not reasonable and compensation should generally only be ordered in straightforward cases. In this case, an order for compensation would be largely symbolic. In the United Kingdom it has been held that a compensation order should not be made where there is no realistic prospect of its payment (see R v Inwood). That approach was followed in New Zealand in R v Rollo, though legislation has since changed that situation there.
Here the total compensation is $5,864. Mr Barnes has no employment at the moment and he is unlikely to have any in the next few years. He is currently receiving Centrelink payments and does not have a significant experience of employment. In these circumstances, it is not appropriate to make a compensation order under section 19 of the Sentencing Act. The court declines to make such an order.
Current Sentencing Practice
A factor this required under section 33(1)(za) of the Sentencing Act to be taken into account on the sentencing of an offender is current sentencing practice. Part of that has been addressed in the identification of the factors that aggravate or mitigate the objective seriousness of the offences. This has been addressed when considering the offences earlier.
In addition, however, an important sentencing value is consistency and this is to be seen in the consideration of the sentences currently being imposed. This is not because any sentence is a precedent. This is not so, as noted in Wong v The Queen. Similarly, there is no correct sentence (R v Pham). Nevertheless, 'in seeking consistency, sentencing judges must have regard to what has been done in other cases' (Barbaro v The Queen).
There are two ways this may be considered. The first is by inspecting the records in the ACT sentencing database which collects the sentences of many, if not most, of the sentences imposed in this jurisdiction. There are limitations in the information available from statistics as explained in R v Horn. Nevertheless, they do provide relevant information and can be useful.
Thus, in R v Elphick the court said:
The limitations of sentencing statistics are well-known. However, for what they are worth, sentencing statistics show that in relation to sentences imposed by the Supreme Court, when the penalty that is imposed is imprisonment, (a), the offence of aggravated burglary usually results in a sentence of between 18 months and three years and six months' imprisonment; (b), the offence of burglary usually results in a sentence of between 12 months and three years and six months' imprisonment; (c), the offence of taking a motor vehicle without consent usually results in an offence of six to 12 months' imprisonment; (d), the offence of obtaining property by deception usually results in a sentence of six to 12 months' imprisonment; (e), the offence of theft usually results in a sentence of six to 18 months' imprisonment; (f), the offence of minor property damage is usually punished by a sentence of six months' imprisonment; (g), the offence of minor theft usually results in a sentence of six months' imprisonment; and, (h), the offence of drive whilst disqualified usually results in a sentence of six months' imprisonment.
As to a number of other offences, for the offence of aggravated dangerous driving the sentence is usually between three months and one year's imprisonment. For the offence of damaging property, the sentence is usually between two months and 12 months' imprisonment.
The other method of accessing current sentencing practice is for the consideration of comparable cases which can provide guidance to the identification and application of relevance sentencing principle and also an analysis of comparable cases identify discernible sentencing patterns and possibly a range of sentences against which to examine a proposed sentence (Hiley v The Queen).
Mr Deakes provided a reference to some decisions on burglary and aggravated burglary. They were R v Novakovic, R v Hancock, R v Elphick, R v Carberry and R v Tracey. None were directly comparable, but have nevertheless been considered. Ms Bayliss also referred to R v Hancock, and as well R v Horn and R v Accused (No.3). The court has considered all of these cases. None of them provide direct comparisons, but the principles that have been considered and applied are appropriate and have been helpful.
Consideration
The task of the court sentencing an offender is to impose a sentence that is just and adequate (Singh v The Queen). In order to do this, it is necessary to have regard to all the relevant factors. This can be complicated for some will point in different directions. Nevertheless, it is necessary for the court to meld these into one sentence for each offence, having regard to the purposes for which the sentence is to be imposed (see Tait v The Queen).
This task is easier because the factors are set out in section 33 of the Sentencing Act. These have, so far as are known, already been addressed. The task is also easier because the purposes of sentencing have been set out in section 7 of the Sentencing Act. Past offences of dishonesty are a cause of serious harm to the persons deprived of the property, and in the case of burglary offences, whose premises have been entered without authority. These offences also cause disquiet among the community.
Thus an element of punishment is required. Such a sentence will also denounce the conduct which is unacceptable in a civilised community, and though this is more debatable, may deter others who are minded to commit such offences from doing so. This is more limited a factor for the reasons set out above, considering Mr Barnes' mental condition. The sentence must also make Mr Barnes accountable for his actions. It may also deter him from committing such actions again, though again this has more limited relevance for the reasons referred to above considering his mental situation and his childhood disadvantage, added to the fact that it has not proved successful to date.
The sentence will acknowledge the harm done to the victims. Regrettably, there were no victim impact statements. These can be very valuable to the court for identifying and so able to recognise the actual harm done to a victim, not all of which will necessarily be appreciated in any way. Some will also experience harm that would not be known or expected by the court. The can, however, understand in general terms the harms done that make the sentences ones which acknowledge at least that harm.
A role for rehabilitation is important too. This is perhaps the surest way to protect the community which is, of course, the ultimate purpose of the criminal law. Mr Barnes pleaded guilty though, the point at which the plea was entered is relevant and was, in some cases, after a plea of not guilty had been entered. The timing of the plea is important, Cranfield v The Queen. All were entered in the Magistrates Court. This did provide a utilitarian value to the criminal justice system and should provide an appropriate reduction in the sentence under section 35 of the Sentencing Act. This discount will be greater where no plea of not guilty was entered.
The pleas were entered to charges where the evidence was very strong against Mr Barnes. In some cases, it might be said to be overwhelming where CCTV actually captured the offences being committed. Nevertheless, while substantial discount may not be appropriate in all cases, some discount is available, and section 35 does not prevent that even in cases of overwhelming evidence. All the offences committed by Mr Barnes were unsophisticated. Indeed, he made it quite clear in a number of cases who he was and left contact details with a number of the victims.
Mr Barnes was in the community on conditional liberty at the time he committed each of the offences. That is to say, he was permitted by a court to be in the community and not in custody, but on conditions including that he not commit any further offences. Thus, he was subject to a community corrections order made on 2 December 2021 for 12 months from that day for an offence of larceny, known in this jurisdiction as theft. This order ended on 20 December 2022.
He was, however, granted bail on 9 November 2022, also a form of conditional liberty, and so the offences committed after that time are covered by that period of conditional liberty. The consequence is not that the objective seriousness of the offences are greater but the sentence imposed but be more severe.
Mr Barnes has shown some remorse. He has pleaded guilty though to the majority of the offences he first pleaded not guilty. He took no objection to the statement of facts and agreed with it. He knew that what he had done was wrong and was 'disappointed in his behaviour'. He expressed an interest in the process of restorative justice and reparation that he would make amends to the victims to the best of his abilities. He has been keen to engage in rehabilitation. All this suggests that he shows some remorse, still quite limited, but a growing recognition of how he must accept and regret his actions and acknowledge the harm done to the victims.
In addition to these matters referred to above, it is necessary to take into account the facts of the offending and the objective seriousness of the offences, as well as the subject circumstances of Mr Barnes including, especially, his mental health and childhood disadvantage. Having regard, however, to all of these factors and after considering all the relevant alternatives, it is clear that no sentence but a sentence of imprisonment is required, section 10 of the Sentencing Act.
There are, of course, 28 offences. A sentence that is just and adequate must be imposed on each of them and the terms of imprisonment must be carefully considered to ensure that Mr Barnes is not punished twice for the same criminality. In addition, the court must carefully consider whether there are common elements between the offences or whether they are part of the same course of conduct to justify wholly or partly concurrent sentences. In this case, some of the offences can be considered to be part of the same cause of conduct, for example, those committed on 25 to 27 May 2022 and those committed on 27 June 2022. Of course, as also noted, the theft and minor theft offences associated with burglaries may be considered to be part of the same criminality.
The length of the total sentence must then be reviewed to ensure that the principle of totality is respected and that the total sentence is adequate to reflect the total criminality but no more than that, and that the total sentence is not excessive and will leave open the realistic prospect of reform and hope for Mr Barnes to achieve his goals when he is released into the community. That has been done. The court must also ensure that the sentence does not leave a perception that the offender can commit multiple offences with impunity. That has also been considered.
Further, the consideration that the childhood disadvantage, mental health challenges, and wish to rehabilitate is relevant in the moderation to his criminality suggests that it is better to increase the level of concurrency rather than reducing the sentences. This has the effect of recording and making it clear that the offences are serious and need to be visited with a stern response which will achieve the purposes set out above, but at the same time they can recognise the required moderation of that culpability of Mr Barnes as required by law. This will have the same effect, though not quite in the same way, as that approach in R v Crawford (No 1).
Mr Barnes, please stand.
The information for the first offence of dishonestly obtaining property by deception will be amended by the deletion of '17' and substitution of '23'. I convict you of the offence of dishonestly obtaining property by deception and sentence you to 11 months imprisonment to commence on 10 January 2023. Had you not pleaded guilty, I would have sentenced you to 15 months imprisonment. I convict you of the first offence of burglary. I sentence you to 14 months imprisonment to be wholly concurrent on the sentence for dishonestly obtaining property by deception. Had you not pleaded guilty, I would have sentenced you to 17 months imprisonment.
I convict you of the first offence of damaging property and sentence you to eight months imprisonment to be cumulative as to one month on the sentence for the burglary. Had you not pleaded guilty, I would have sentenced you to 10 months imprisonment. I convict you of the second offence of burglary and sentence you to 13 months imprisonment to be cumulative as to two months on the sentence of damaging property. Had you not pleaded guilty, I would have sentenced you to 17 months imprisonment.
For the theft associated with that property, I convict you and sentence you to seven months imprisonment to be cumulative as to one month on the sentence for burglary. Had you not pleaded guilty, I would have sentenced you to nine months imprisonment. I convict you of the third count of burglary and sentence you to 12 months imprisonment to be cumulative as to two months on the sentence for the theft charge. Had you not pleaded guilty, I would have sentenced you to 16 months imprisonment.
I convict you of the first count of attempted burglary. I sentence you to 10 months imprisonment to be cumulative as to two months on the sentence for theft. Had you not pleaded guilty, I would have sentenced you to 12 months imprisonment. I convict you of the second count of attempted burglary and sentence you to 10 months imprisonment to be cumulative as to two months on the sentence for the first count of attempted burglary. Had you not pleaded guilty, I would have sentenced you to 12 months imprisonment.
I convict you of the fourth count of burglary and sentence you to 14 months imprisonment to commence - I'm sorry, to be cumulative as to two months on the sentence for attempted burglary. Had you not pleaded guilty, I would have sentenced you to 17 months imprisonment. I convict you of the fifth count of burglary and sentence you to 14 months imprisonment, to be cumulative as to two months on the sentence for the earlier count of burglary. Had you not pleaded guilty, I would have sentenced you to 17 months imprisonment.
I convict of the second count of theft and sentence you to eight months imprisonment, to be cumulative as to one month on the sentence for burglary. Had you not pleaded guilty, I would have sentenced you to 10 months imprisonment. I convict you of the sixth count of burglary and sentence you to 14 months imprisonment, to be cumulative as to two months on the sentence for theft. Had you not pleaded guilty, I would have sentenced you to 16 months imprisonment.
I convict you of the second count of damaging property and sentence you to five months imprisonment, to be cumulative as to one month on the sentence for burglary. Had you not pleaded guilty, I would have sentenced you to six months imprisonment. I convict you of the third count of damaging property and sentence you to six months imprisonment, to be cumulative as to one month on the count - on the sentence for burglary. Had you not pleaded guilty, I would have sentenced you to seven months imprisonment.
I convict you of the second offence of dishonestly obtaining property by deception and sentence you to six months imprisonment, to be cumulative as one month on the sentence for damaging property. Had you not pleaded guilty, I would have sentenced you to eight months imprisonment. I convict you of the offence of dishonestly obtaining financial advantage by deception and sentence you to five months imprisonment, to be cumulative as to one month on the sentence for dishonestly obtaining property by deception. Had you not pleaded guilty, I would have sentenced you to seven months imprisonment.
I convict you of the third count of dishonestly obtaining property by deception and sentence you to six months imprisonment, to be cumulative as to one month on the sentence for dishonestly obtaining financial advantage by deception. Had you not pleaded guilty, I would have sentenced you to eight months imprisonment.
I convict you on the fourth count of dishonestly obtaining property by deception and sentence you to six months imprisonment, to be cumulative as to one month on the sentence for dishonestly obtaining property by deception. Had you not pleaded guilty, I would have sentenced you to eight months imprisonment.
I convict you of driving a motor vehicle without consent and sentence you to nine months imprisonment, to be cumulative as to one month for the sentence of dishonestly obtaining property by deception. Had you not pleaded guilty, I would have sentenced you to 12 months imprisonment. I convict you of aggravated dangerous driving and sentence you to nine months imprisonment, to be cumulative as to one month on the sentence for dishonestly driving a motor vehicle without consent. Had you not pleaded guilty, I would have sentenced you to 12 months imprisonment.
I convict you of joint commission aggravated and sentence you to 24 months imprisonment, to be cumulative as to three months on the sentence for aggravated dangerous driving. Had you not pleaded guilty, I would have sentenced you to 32 months imprisonment. I convict you of joint commission theft and sentence you to eight months imprisonment, to be cumulative as to one month on the sentence for joint commission aggravated burglary. Had you not pleaded guilty, I would have sentenced you to 11 months imprisonment.
I convict you of unlawful possession of stolen property and sentence you to six months imprisonment, to be cumulative as to one month on the sentence for joint commission theft. Had you not pleaded guilty, I would have sentenced you to eight months imprisonment. I convict you of minor theft and sentence you to three months imprisonment, to be wholly concurrent with the sentence for an unlawful possession of stolen property. Had you not pleaded guilty, I would have sentenced you to four months imprisonment.
I convict you of possessing a knife without reasonable excuse and sentence you to one month imprisonment, to be wholly concurrent with the sentence for minor theft. Had you not pleaded guilty, I would have sentenced you to five weeks imprisonment. I convict you of the third count of minor theft and sentence you to four months imprisonment, to be cumulative as to one month on the sentence for possessing a knife without reasonable excuse. Had you not pleaded guilty, I would have sentenced you to five months imprisonment. I convict you of minor theft, the final count of minor theft; the third count, and sentence you to two months imprisonment, to be wholly concurrent with the sentence for the earlier minor theft. Had you not pleaded guilty, I would have sentenced you to 10 weeks imprisonment.
You may be seated.
Mr Barnes has not been sentenced to 58 months imprisonment of which he's now served 11 months. The issue to be determined is how the balance of the sentence is to be served. He has sought that a treatment order be made, so it's appropriate to first consider that. In order to undertake that consideration, there are basically two issues; is Mr Barnes eligible and if he is, is it suitable that a treatment order be made? Clearly, eligibility is a primary consideration and the eligibility criteria is set out in sections 12A and 80S of the Sentencing Act.
As the criteria set out in 80S of the Sentencing Act really concerns suitability, it's appropriate first to consider the criteria in section 12A of the Sentencing Act. Those can be dealt with in the following way. Mr Barnes has been sentenced on a plea of guilty to an offence of burglary which is an eligible offence. This is the primary offence. He has been sentenced to 14 months imprisonment for that offence which is more than the minimum period of imprisonment for eligibility.
He has, except for the offence of dishonestly obtaining property by deception committed on 23 April 2022, the sentence of 11 months to which he has been sentenced, having now been served, the sentences for the other offences total three years and 11 months imprisonment which is less than the maximum period of imprisonment for to which an offender may be eligible for a treatment order. All the other offences are eligible offences and so may be associated offences, and he pleaded guilty to all of them.
The suitability assessment of Alcohol and Drug Services assessed Mr Barnes as likely to have a severe substance use disorder. Ms Lisa Morris noted that he meets the criteria for a stimulant use disorder severe. There was no challenge to these findings and so it may be accepted that Mr Barnes has a dependence on drugs, specifically methamphetamine. Mr Barnes said that he was using drugs at the time of the offending which was committed in order to fund his drug habit. This was also not challenged; accordingly, his dependence can be accepted to have substantially contributed to the commission of the offences.
Mr Barnes has lived in Canberra all his life except for a short period of apparently less than a year when he lived in Nowra. Accordingly, it may be accepted that he will remain in Canberra for the balance of the term of his sentence. Mr Barnes has signed the prescribed consent for whom in which he accepts that he has had his obligations under a treatment order and the workings of such an order explained. This is confirmed by the suitability assessments which - when it is also reported that he had the opportunity to ask any questions about the treatment order and such questions have been answered in a way that he can understand. Accordingly, it can be accepted that he has made an informed consent to the making of a treatment order.
No concerns of any victims have been brought to the court's attention. Accordingly, Mr Barnes is eligible for a treatment order to be made for him to serve his sentence of imprisonment. Both counsels submitted that it was appropriate for a treatment order to be made. Both suitability assessments, however, recommended that a treatment order not be made. Such recommendations can be overwritten by the court but must be taken very seriously, more especially when both make such a recommendation.
The Alcohol and Drug Services suitability assessment actually recommended that Mr Barnes was suitable. The amended assessment, however, noted that the proposed residence where Mr Barnes was to live had not been found suitable by ACT Corrective Services, and so I admit that he would be, effectively, homeless. This would make it impossible for him to succeed on a treatment order which provided for him to engage with a day drug rehabilitation program and counselling.
The ACT Corrective Services had raised three issues, one of which was the suitability of the proposed premisses. As to the residence, the problem identified was that he wished to reside with his partner, but she was in a property where the tenant did not live there and so the property was at risk, as it was an ACT Housing property. The partner of Mr Burnes is pro-social, though she has some criminal history which does not appear to be current. She does not use drugs. This would be very desirable for his support. The property, however, is tenanted by his partner’s aunt and Mr Deakes submitted that she has returned to the property so that the problematic issue is no longer a problem.
The second matter raised by ACT Corrective Services is that it was suggested that a diagnosis of an oppositional defiance disorder that Mr Barnes received, together with his intellectual disability would likely prevent full compliance. There is no doubt that an intellectual disability can prevent a treatment order being effective, see R v McHughes (No 3). This issue, however, does not render him unsuitable in the view of alcohol and drug services. It did not seem that the problem was as great as it was for Mr McHughes. Neither the alcohol and drug services, nor Ms Morris referred to a diagnosis of oppositional defiance disorder. While Ms Morris suggested that a residential placement would give him a better chance of success, neither identified this as a problem. Ms Morris did suggest that he should be placed where his neurodivergence could be managed but made no other recommendation. Accordingly, it does seem that the concern by ACT Corrective Services can be managed.
Finally, ACT Corrective Services were concerned about the prior criminal record of Mr Barnes and his non-compliance with community-based orders. Again, this is an important matter to be considered. It is true that Mr Barnes has a moderately significant criminal record as earlier described. The main offences have been dishonesty offences which appear to be related to his drug use. Thus, if that can be managed, it will be easier for his current behaviour to be curtailed. Further, he has in the past had no drug treatment. With that added to the additional support that the treatment and supervision team has to each see, section 80M of the Sentencing Act provides, it seems likely that Mr Barnes will be able to manage a community-based order better.
Some of this is a bit like the comment that those who need intensive corrections order will not be able to access them, R v EL. Thus, while the concerns are important and need to be taken seriously, they do not mean that a treatment order cannot be made. The care plan prepared by alcohol and drug services appeared to be appropriate and Canberra Recovery Services are prepared to accept him. Thus, there are suitable arrangements for the administration of the order. While Mr Barnes has breached a suspended sentence order in the past, his current commitment, especially his motivation to connect with his daughter makes it more likely that he will better comply on this occasion, especially supported by the treatment and supervision team. Accordingly a treatment order is suitable for Mr Barnes to serve his sentence of imprisonment. Accordingly, a treatment order will be made.
Mr Barnes, please stand.
I make a drug and alcohol treatment order under section 12A of the Crimes (Sentencing) Act 2005 of the ACT for you in respect of the primary offence of burglary of which you have been convicted and for which you have been sentenced to one year and two months imprisonment. The order is extended to all the other offences except the offence of obtaining property by deception, of which you have been convicted and for which you have been sentenced and which are associated offences of the primary offence. I note that the convictions and sentences imposed for the primary and the associated offences have been recorded and are hereby incorporated into the drug and alcohol treatment order in the custodial part of the order.
The drug and alcohol treatment order is for three years, ten months and 20 days from today, 19 December 2023 to 8 December 2027. The treatment and supervision part of the drug and alcohol treatment order is for one year and six months from today, 19 December 2023 until 18 June 2025. The custodial part of the drug and alcohol treatment order for the primary and associated offences are hereby suspended under section 80W of the Crimes (Sentencing Act) 2005 of the ACT from today, 19 December 2023 until 8 December 2027.
Under section 80ZA of the Crimes (Sentencing) Act 2005, you are required to sign an undertaking to comply with the offender’s good behaviour obligations under section 85 of the Crimes (Sentence Administration) Act of the ACT 2005. From the day after the end of the treatment and supervision part of the treatment order, 9 June 2025 until the end of the total sentence, 8 November 2027, with a probation condition need you accept supervision by the commission of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising you considered appropriate, and obey all reasonable directions of the person supervising you including as to alcohol and drug testing, counselling and treatment.
For the treatment and supervision part of the drug and alcohol treatment order, the core conditions of the order set out in section 80Y of the Crimes (Sentencing) Act 2005 are imposed. You are to admit yourself to the day program at Canberra Recovery Hub. You are directed to complete the program at Canberra Recovery Hub, to not leave the program until you have completed it and to comply with all the directions of the person in charge of the program and the rules of the program. Should you leave or be discharged from the program before completing it, you are to report to ACT Corrective Services by 4.00 pm on the next business day, with a view to having the drug and alcohol treatment order reviewed.
You are to undertake any program, treatment or counselling, alcohol and drug testing or case management that may be required by any member of the treatment and supervision team and obey all reasonable directions of any member of that team about where you reside, with whom you associate and your attendance from time to time. You are to comply with any direction of the court from time to time about attendance in court in person or by electronic means. You are directed to sign a sealed copy of this order and an undertaking to comply with the order and any obligations under the Crimes (Sentence Administration) Act 2005 of the ACT for the period that this order is in force before you leave the court precinct, and you will properly do that downstairs with custodial officers. And you are directed to appear in person on Friday, this Friday, 22 December 2023 at 11.30 am.
Mr Barnes, that’s a lot of words and I am sorry. It’s important that it’s all out there and you probably understand quite a lot of it because it’s about you and what you did. These were serious offences and 28 of them made this really unrestrained bout of criminality very serious. However, I understand, the court understands and accepts that you have got some challenges and that your drug and alcohol use, which started at an early age and which was partly due to some childhood disadvantage and some trauma and difficulties that you have had in your life, justifies a moderation in that and so, at the end of the day, I have said about 58 months is appropriate for that. You have now got just under 47 months left to serve and you will serve that in three ways.
The first is in treatment, right. Off to the Canberra Recovery Hub, right. You make contact with them today or tomorrow to let them know that you have been allowed to have a treatment and get going. Now, they probably won’t be going over Christmas, so that will start, but you should make contact with Corrective Services and the other members of the team, and you will be given, I hope, a letter about this.
Now, I know you have got some problem in reading, but Mr Deakes will help you to understand that letter and you can ask him for assistance, or you can ask any of the people who will be assisting you about reading and understanding your obligations. It is really important that you understand those because if you breach your obligations, you can be sanctioned.
THE PARTICIPANT: Yes.
HIS HONOUR: Those sanctions are usually warnings and points. Each point is a day in custody but we don't send you off for one day in custody, generally. We wait until you have accumulated seven points and then send you off for seven days or 14 days. All right? That is an opportunity to reset, rethink, rework, and they are not necessarily refusing you to continue on in the process. All right?
THE PARTICIPANT: Yes.
HIS HONOUR: But unless you know what the obligations are, you won't do it.
THE PARTICIPANT: Yes.
HIS HONOUR: Now, it is really important that you take this seriously and that means you understand it is going to be hard. Right? It is going to be difficult. All right? Two things about that. First of all, this court is here to support and help you. Right? The people who will assist you, Community Corrections officers, the health people, are there to advise you. The counsellors, the people at Canberra Recovery Hub want you to succeed. We want you to succeed. So don't just throw up your hands when it gets tough and say, 'It's too hard,' and run away. All right? Come back and talk to us. All right?
If you do something wrong, we will have to punish you for that but we will punish you less and want to help you if you come back, if you talk about it, if you let people help you. At the end of the day, however, only you can do it. Only you can change yourself, your attitudes, your habits, your approaches, your behaviours. All right? Each time you meet a challenge and overcome it, it will be easier the next time. All right? So keep going. You will come and see me every week for the first time – well, not every week, every couple of weeks because it is January, and we are going into a bit of a holiday, but you will come back and see us. All right?
THE PARTICIPANT: Yes.
HIS HONOUR: That is an opportunity for us to say, 'Well done. You're going well,' but also to say, 'This is a problem. We need to fix this.' Perhaps give you a sanction, perhaps take some action, but also to have a conversation with you. You can say, 'I'm finding this difficult. I don't know what to do about this. I need to do something about this. How do I do it?' And then we can try and help you with that.
THE PARTICIPANT: Okay.
HIS HONOUR: I am a judge. I have a lot of power. I can't unfortunately solve everything. I would wave a magic wand and do that if I could but I can't necessarily, but I can change some things and will do so if that is helpful to you succeeding. But I also can put you in touch with people who might be able to help you and assist you and support you, and enable you to get where you want to be if you are focused on the future. And the future is drug free, crime free and things like having a connection with your daughter, meeting her again, being the father that she ought to have, and that, as I read it, you didn't really have.
What a wonderful future for you if you can be focused on this, getting through it and doing the right thing, and then perhaps getting a job, getting another family, getting into the community and so on, other things that you would like to do. Those are there. So two really important things. Don't run away.
THE PARTICIPANT: I won't.
HIS HONOUR: Right? Don't commit any further offences, obviously. Don't use drugs.
THE PARTICIPANT: Yes.
HIS HONOUR: Cold turkey is hard but really work on that. All right? Very important.
THE PARTICIPANT: Yes.
HIS HONOUR: Okay. The second thing is be honest. All right? Of course, you have got to be honest with me. Telling me lies is perjury. That is an offence. I can put you in jail for that. All right? But telling lies to your counsellors and to your support people will make it really hard for them to help you. I know sometimes it is hard to tell the truth because it makes you feel embarrassed or ashamed. Right?
Shame is a difficult emotion, but like pain, it actually is, in some ways, good. Pain says, 'Don't put your finger on the hot stove,' you know, or, 'You need to put a band aid on that scar or gash.' In the same way, shame can be a good emotion because it can say, 'I shouldn't be doing this. I won't do it again because I will feel that shame. I know where the boundaries are.' So be honest even if that makes you feel vulnerable.
We are not here to judge you. We have judged you now. We have put you on the program, and yes, if you do something wrong, I will judge you but not in the way of policing you, but in the way of helping you come through and graduate at the end of the day. But it is also important to be honest with yourself. All right? Because it is very easy to say, 'I'm really upset at the moment and a quick shot of meth will help me.' All right? And it's really only just a shot. No, it's not. It is back into drug and crime.
THE PARTICIPANT: Yes.
HIS HONOUR: Isn't it?
THE PARTICIPANT: Yes, it is.
HIS HONOUR: So be honest with yourself and say, 'No. I will feel ashamed if I do that. I won't do it because I don't want to feel ashamed.' All right? So this is a long journey. 18 months. Right? But we will help you along the way, get back into the community and do the things you want to do. We can help you with [redacted], we can help you get in jobs, all those kinds of things that will get you, but you must be committed to it.
You must be strong, you must be really, really prepared for this and put a lot of effort in it. Put your shoulder to the wheel. I hope it works. It would be very good if we could graduate you so I wish you the best of luck. You may be seated. Anything arising, Ms Bayliss?
MS BAYLISS: Just one matter, your Honour.
HIS HONOUR: Yes.
MS BAYLISS: It was in relation to the sentence imposed for the seventh in time burglary, CC2022/6866.
HIS HONOUR: Just a moment. 6866. Yes.
MS BAYLISS: I am wondering what it was, your Honour.
HIS HONOUR: It was 14 months – I'm sorry, I did get a bit confused there. It has been a long, difficult sentence. It was 14 months imprisonment to be cumulative as to two months on the sentence for the damaging property.
MS BAYLISS: Thank you, your Honour.
HIS HONOUR: All right. Mr Deakes.
MR DEAKES: No, that clears it up, your Honour.
HIS HONOUR: All right. I'm sorry. I thought I had got confused about then but I had no idea where I was so I just thought I would keep going, to be honest. You have got to be honest, don't you? That is what I have said.
MS BAYLISS: Yes.
HIS HONOUR: All right. Thank you for your patience and your assistance. I hope the rest of the day will be a bit more interesting. I will adjourn the court briefly.
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