Director of Public Prosecutions v Blundell; Director of Public Prosecutions v Booth

[2025] ACTSC 16

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Blundell; DPP v Booth

Citation: 

[2025] ACTSC 16

Hearing Date: 

4 February 2025

Decision Date: 

6 February 2025

Before:

Baker J

Decision: 

See [87]

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary in company – damage Commonwealth property by joint commission – driving while disqualified as a repeat offender – reparation order sought – Bugmy principles applicable to one offender – where full-time imprisonment would cause hardship to other offender’s family – recognizance release orders imposed

Legislation Cited: 

Crimes (Sentencing) Act 2005 s 10

Crimes Act 1914 (Cth) ss 16A, 17A, 20, 21B

Criminal Code Act1995 (Cth) ss 11.2A, 132.5(1)(a), 132.8A

Road Transport (Driver Licensing) Act 1999 (ACT) s s 32(1)(a)

Cases Cited: 

Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (No 2) [2006] QSC 40; 62 ATR 494

Customs v Labrador Liquor Wholesale Pty Ltd [2006] QCA 558; 65 ATR 547

DPP v Lindsay [2021] VCC 1191

DPP v Padreny [2024] ACTCA 4

Hogan v Hinch [2011] HCA 4; 243 CLR 506

Mill v The Queen[1988] HCA 70; 166 CLR 59

Pearce v The Queen [1998] HCA 57; 194 CLR 610

R v Henry [1999] NSWCCA 111, 46 NSWLR 346

R v Hookham (1993) 31 NSWLR 381

R v West [2015] ACTSC 134

Vlahov v Commissioner of Taxation (1993) 26 ATR 49

Texts Cited:

Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders (ALRC 103, 2006)

Commonwealth Director of Public Prosecutions, Sentencing of Federal Offenders in Australia’: A Guide for Practitioners (7^th ed., July 2024)

Parties: 

Director of Public Prosecutions ( Crown)

Wayne Blundell ( First Offender)

Bradley Booth ( Second Offender)

Representation: 

Counsel

C Tsapoutas ( Crown)

S Robinson ( First Offender)

G Briggs ( Second Offender)

Solicitors

Cth Director of Public Prosecutions ( Crown)

Fortify Legal ( First Offender)

Briggs Law ( Second Offender)

File Numbers:

SCC 266, 359 and 360 of 2024

BAKER J:      

Introduction

1․The offenders, Wayne Blundell and Bradley Booth, have each pleaded guilty to one count of aggravated burglary in company contrary to s 132.5(1)(a) of the Criminal Code Act1995 (Cth) and one count of damage Commonwealth property by joint commission, contrary to ss 11.2A and 132.8A of the Criminal Code. Mr Booth has also pleaded guilty to a charge of driving while disqualified as a repeat offender, contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT).

2․The maximum penalty for aggravated burglary in company is 17 years’ imprisonment. The maximum penalty for damage Commonwealth property by joint commission is 10 years’ imprisonment. The maximum penalty for drive while disqualified as a repeat offender is imprisonment for one year and/or a $1600 fine, and automatic disqualification from driving for two years.

The offending

3․In the early hours of 5 May 2024, Mr Blundell and Mr Booth entered a white Ute with two other men, Brendan Palmer and James Taylor.[1] Mr Blundell was the driver of the Ute.

[1]Mr Taylor was originally due to be sentenced alongside the other co-offenders. However, prior to the sentence proceedings, he was remanded in custody in New South Wales for unrelated offening. He will be sentenced upon his return from New South Wales at a later date.

4․After briefly stopping at a Seven Eleven Service Station in Giralang, ACT at 3:43am to purchase food and to put air in the tyres of the Ute, the men drove to the Belconnen Naval Transmitting Station in Lawson, ACT (BNTS site).

5․The BNTS site is owned by Defence Housing Australia, a Commonwealth entity, and is listed in the Commonwealth Heritage List. The BNTS site is surrounded by a tall fence topped with barbed wire.

6․At approximately 4:10am, the Ute was driven through a hole in the wire fence. The offenders intended to steal copper wire contained in the buildings on the site, and brought torches, rope, two powered saws and a prybar with them to carry this out. (CC2024/5057 – aggravated burglary in company – Blundell) (CC2024/7796 – aggravated burglary in company – Booth).

7․Three of the men then left the Ute to explore the BNTS site, including the Main Transmission Building Garage Workshop (the Workshop). At approximately 4:17am, one of the men then reversed the Ute through the Garage Door of the Workshop.

8․The men then utilised the tools to expose cables below the floor, and connect ropes between the cables and the Ute. The Ute then drove in and out of the workshop several times, in an attempt to rip the cables from the floor and expose the copper inside. This caused damage to the floor of the workshop. (CC2024/7981 – damage Commonwealth property by joint commission – Blundell) (CC2024/10436 – damage Commonwealth property by joint commission – Booth).

9․The presence of the men on the site triggered security detectors and live CCTV. The security company notified Police who attended the site as an emergency.

10․At 4:26am, four police entered the BNTS site on foot, as the vehicle access gate was locked. They approached the workshop, where they could hear a vehicle revving its engine and honking the horn. After the driver exited the Ute, the Police confronted all of the men.

11․Mr Booth, who was closest to the Ute, was instructed to get onto the ground. When he did not comply and ran towards the Police, Police deployed their Conducted Energy Weapon (CEW). This was unsuccessful, and Mr Booth re-entered the Ute and began to rev the engine. Mr Booth then drove through a wire fence, damaging it and left the site (CAN 6437/2024 – driving while disqualified as a repeat offender – Booth).

12․Police then arrested Mr Blundell and Mr Taylor, who were still inside the workshop. Police later found Mr Palmer hidden inside a cardboard box.

13․Mr Blundell agreed to participate in a police interview, which was conducted at 8am that day, in which he made the following admissions:

(a)He went to the Seven Eleven at Giralang at 3am to meet the other offenders, who picked him up in the Ute;

(b)He only knew the identity of Mr Taylor (who was also apprehended at the site), and did not know the driver or other passenger;

(c)He had never seen the Ute before;

(d)He and the other offenders entered the BNTS site through a hole in the fence;

(e)They were attempting to steal copper wire from the site; however the cables attached to the Ute kept breaking and they were unable to retrieve any copper wire;

(f)Mr Blundell was unsure of who purchased the tools or the identity of the person who escaped through the fence; and

(g)He was unsure who owned the Ute.

14․Police found the abandoned Ute later that day, and were able to identify Mr Booth as the fourth co-offender as a result of forensic evidence obtained from inside the Ute.

Damage caused by the offending

15․The offending caused significant damage to the floor of the building. Rectification of the damage has been delayed as a result of the exposure of hazardous material which must be safely dealt with before that work can commence.

16․The prosecutor tendered the following quotes setting out the anticipated cost of repairing the site:

Item	Description	Cost
Workshop damage rectification	Damage to internal elements of the Garage Workshop to floors/ walls and underfloor cabling	$20,760.16 ex GST
Stripped Waste Pile Remediation	Remediation required to an asbestos contaminated pile of waste dumped by the offenders	$18,380 ex GST
Replacement of Bush Rocks Sentinel Facilities Management	Re positioning of existing bush rocks that were pushed out of the way by vehicles at entry point off Baldwin Drive where intruders entered	$625 ex GST
Placement of Large Bush Rocks Sentinel Facilities Management	Placement of entry point of intruders off Baldwin Drive of larger bush rocks	$7,694.50 ex GST

17․In his oral submissions, Mr Robinson, who appeared for Mr Blundell, drew the Court’s attention to the fact that there was no evidence, either in the Agreed Statement of Facts, or elsewhere, which could support a finding that the offenders had dumped “an asbestos contaminated pile of waste”, or that bush rocks had been “pushed out of the way” by the offenders’ Ute. Mr Robinson also noted that the Agreed Facts indicated that the offenders entered through a “pre-existing” hole in the fence, and that the quotes indicated that the building was already damaged by graffiti. Mr Robinson submitted that the Court could not be satisfied beyond reasonable doubt that the offenders caused the damage quoted.

18․In these circumstances, the prosecutor appropriately acknowledged that the damage which is the subject of last three quotes (the stripped waste pile remediation and the replacement and placement of bush rocks) should not be taken into account by the Court in assessing the damage that resulted from the offending conduct.

19․I am satisfied that the first quote (workshop damage rectification) relates to damage that was sustained as a result of the offending. Accordingly, I will assess the objective seriousness of the offending on the basis that $20,760.16 of damage was caused by the offenders’ conduct.

Subjective circumstances (Mr Blundell)

Personal background

20․Mr Blundell is 48 years old.

21․Mr Blundell was born and raised in Queanbeyan, New South Wales. He told the author of the Intensive Correction Order Assessment Report (ICOAR) that he had a positive upbringing, free from domestic violence or substance abuse. Mr Blundell’s father passed away in 2004. However, he maintains a positive relationship with his mother.

22․Mr Blundell completed his year 10 certificate and has been employed in various labouring positions for the vast majority of his adult life. He stopped working five years ago in order to care full-time for his grandson, who has Level 3 autism, ADHD and an intellectual disability. Mr Blundell’s grandson requires significant support, including from various specialists to assist with his communication and behavioural needs. Mr Blundell has been a recipient of the Centrelink jobseeker allowance since he ceased employment. Mr Blundell is the only member of his family who does not, and has not, suffered from mental health difficulties. Mr Blundell faces significant barriers to his ability to obtain stable employment arising from his obligations to take care of family members, particularly his grandson.

23․Mr Blundell lives in government housing. In written submissions filed on behalf of the offender, the Court was told that, at the time of the offending, this three bedroom government house was overcrowded, housing up to seven adults and one child. More recently, various family members have obtained other accommodation, leaving Mr Blundell, his wife, their son and their grandson in the home.

Motive for the offending

24․Mr Blundell told the author of the ICOAR that he committed the offences as a result of financial strain and engagement with anti-social peers. A psychologist report and letters from the offender and his wife further explained that, at the time of the offending, Mr Blundell had just bought a second-hand car, which required repairs before it could be registered and transferred to his name. No other family member has a license or a car. Mr Blundell needed the car to take his grandson to his specialist appointments. He knew some people who had previously attended the BNTS site, which appeared to be abandoned. They suggested the idea. He said that he has now taken action to remove himself from their influence.

Drug use

25․Mr Blundell has consumed cannabis almost daily since the age of 17. Mr Blundell told the author of the ICOAR that he ceased this substance use in around December 2024. When tested in January 2025, Mr Blundell returned negative results for ethanol, but tested positive for a low level of cannabis. He expressed confidence in his ability to abstain from cannabis use while subject to any order for conditional liberty.

Mental health

26․The Court received a psychological report from Dr Aaron Cunningham, psychologist, dated 29 January 2025, which stated as follows concerning Mr Blundell’s mental state at the time of examination:

Mr Blundell does not present with a history consistent with an antisocially minded individual. He does not present with significant risk factors for offending. His offence behaviour presents as a lapse in judgement in the context of financial stress. In my opinion, incarceration would be onerous for Mr Blundell’s family. Mr Blundell’s family rely on him to attend medical appointments for his grandson. From a psychological perspective, Mr Blundell does not present with mental health or drug and alcohol treatment needs. He would benefit from maintaining the support and stability of his family and ceasing association with antisocial peers.

Remorse

27․Mr Blundell provided a letter to the court in which he expressed remorse for his actions and took “full accountability” for the offending. He explained that he was “looking for a quick and easy solution for [his] money problems as [he] needed to fix [his] car, transfer the ownership and register his car to take [his] grandson to specialist appointments.”

28․Mr Blundell said that he had learned from his mistake and regretted his actions. He also explained that he was going through a very stressful time and did not think about the consequences of his actions. He explained that he has taken action not to interact with people who could be a bad influence upon him.

29․Mr Blundell’s wife and sister in law also provided letters to the Court in which they described Mr Blundell’s sincere remorse. Both confirmed that at the time of the offending Mr Blundell was having significant financial and stress issues. They also confirmed that Mr Blundell has made positive changes to his life, such as disassociating with his previous acquaintances, so as to ensure that he is not at risk of reoffending.

30․Mr Blundell also told the author of the ICOAR that he did not dispute the agreed statement of facts and that he accepted responsibility for his offending. He attributed his offending behaviour to financial stress and engagement with antisocial peers.

31․I am satisfied that Mr Blundell is remorseful for the offending.

Criminal history

32․Mr Blundell has one prior conviction for a single offence of failing to vote in 2016. The Crown accepted that as this conviction was for minor and unrelated offending, he should be considered as having prior good character. I accept that the present offending is out of character.

Intensive Correction Order Assessment Report (ICOAR)

33․The author of the ICOAR assessed Mr Blundell as being at a “low risk of general re-offending”, noting that he presents with a number of protective factors including family support, stable accommodation and no record of mental health issues. Mr Blundell’s primary areas of risk were identified as “within the financial, companions and alcohol/drug problem domains”. The author noted that drug and alcohol treatment is available in the community through external services and that financial advice is available in the community through Care Financial. The author also noted that Mr Blundell has approved accommodation in the community.

34․The ICOAR author assessed Mr Blundell as suitable for an ICO.

Pre-sentence custody

35․Mr Blundell spent one night in custody following his arrest for the present offences. Mr Blundell’s sentence will be backdated by one day to take account of this presentence custody.

Subjective circumstances (Booth)

Personal background

36․Mr Booth is a 32 year old Wiradjuri man. He is the youngest of three children from his parents’ relationship, and he has five step siblings. Mr Booth’s parents separated when he was six years old.

37․Mr Booth has four children, aged 15 months, 4, 6 and 8 years respectively. He shares the parenting of these children with his ex-partner. At the time of the sentence proceedings, Mr Booth was in custody, bail refused, in relation to an unrelated charge. Mr Booth’s legal representative informed me that he was speaking to his children every few days from custody. Mr Booth has now been released on bail in relation to that unrelated charge.

38․Mr Booth gave evidence in the sentence proceedings. He disclosed to the Court that he was sexually abused by his brother when he was approximately 8 years old. This conduct involved indecent touching. Mr Booth had not told anyone about this offending until very recently, when he disclosed what had occurred to his father and to his lawyer.

39․Mr Booth now has a close relationship with his father, who is on a disability pension. Mr Booth helps his father as much as he can. Mr Booth’s father provided the Court with a letter expressing his support, and confirming that he is willing for Mr Booth to live with him.

Education and employment

40․Mr Booth struggled with school, having been diagnosed with ADHD as a child. Although he was not expelled, he was suspended from school and left regular schooling in year 9. He subsequently unsuccessfully attempted to obtain his year 10 certificate at Canberra Institute of Technology in Woden. He is not literate.

41․Mr Booth has worked as a house painter for many years. His employer provided a letter which described Mr Booth as “reliable” and “talented”. His employer indicated that he has employment for Mr Booth if Mr Booth receives a non-custodial sentence.

Drug use

42․Mr Booth has a history of illicit substance use, including alcohol, methamphetamine (ice) and cannabis. He first commenced using alcohol and methamphetamine when he was 14 years old, and commenced using cannabis when he was 12 years old. By age 25, he was drinking between six and ten cans of rum and coke each day. He told the Pre-Sentence Report author that he stopped drinking “cold turkey” about 4 months ago.

43․Mr Booth’s methamphetamine use has fluctuated. He told the PSR author that at the time of the offending, he was smoking between a gram and a half and three grams of methamphetamine each day. 

44․The Court was informed that Mr Booth decided to steal the copper wire in order to fund his drug use. He told the PSR author that he was under the influence of methamphetamine at the time that he committed the offences.

45․Mr Booth has indicated a desire to engage in drug and alcohol rehabilitation. He has made contact with several rehabilitation centres whilst on remand. He has been engaging in S.M.A.R.T recovery and ADAPT programs whilst in custody.

46․Mr Booth has been accepted into the Ngunnawal Bush Healing Farm. It is a requirement of the Ngunnawal Bush Healing Farm that participants remain abstinent from drugs and alcohol for the duration of the 8 week program. Mr Booth expressed a desire to the PSR author to connect with his culture through this program. He also articulated a motivation to “get clean” and to “be there for his father who is getting older”.

Mental health

47․The PSR author recorded that Mr Booth is presently on medication for depression. Mr Booth also reported that he was diagnosed with ADHD as a young child, both to the PSR author and in his evidence in the sentencing proceedings. He reported that he was prescribed medication for ADHD as a child, but has not received any treatment or diagnoses for this condition as an adult.

Remorse

48․Mr Booth told the PSR author that he agreed with the prosecution’s Statement of Facts, but had little memory of the offending. As noted earlier, Mr Booth stated that he was under the influence of methamphetamine at the time of the offending. The PSR author recorded that Mr Booth was “able to recognise that the index offences have affected a lot of people, such as his children and family, himself, but also the court, police and the greater community”. I am satisfied that Mr Booth is remorseful for his offending.

Criminal history

49․Mr Booth has a significant criminal history, which includes convictions for aggravated burglary, theft, damage property, driving offences, drug offences and common assault in both NSW and in the ACT.

50․In 2011, Mr Booth breached a good behaviour order by engaging in further offending. He has also received sanctions for institutional misconduct, most recently on 20 January 2025.

Pre-sentence custody

51․The parties agree that the Court should take into account 20 days served by way of pre-sentence custody by Mr Booth. I will backdate the sentences imposed on Mr Booth by 20 days.

Pre-Sentence Report

52․As a result of an oversight, an ICOAR was not requested for Mr Booth. However, a PSR was prepared. The PSR author assessed Mr Booth as suitable for a high level of supervision. The author indicated that supervision would include strategies to address Mr Booth’s “dynamic risk” in the areas of alcohol/ drug use, finances and leisure/ recreation.

Sentencing considerations

Objective seriousness (Commonwealth matters: Mr Blundell and Mr Booth)

53․The matters informing the objective seriousness of the aggravated burglary offence for each Mr Blundell and Mr Booth include:

(i)The premises were not residential, nor were they commercial. The likelihood of people being physically present at the premises at the time of the offending, which was in the early hours of the morning, was small;

(ii)Entry to the premises was initially through a pre-existing hole in the fence, rather than by force;

(iii)Whilst the offending was unsophisticated, the offending evinced a degree of planning, as is demonstrated by the tools which the offenders brought to the premises.

54․The matters informing the objective seriousness of the offence of damage property include:

(i)The premises were heritage listed;

(ii)The premises were decommissioned at the time of the offending;

(iii)Damage was occasioned to the premises by the use of a vehicle;

(iv)Whilst the offending was unsophisticated, tools were brought to the premises by the offenders, evincing a degree of planning;

55․Although the cost of rectification was not the amount initially claimed by the Crown, it remains the case that the cost of repairing the damage sustained, $20,760.16, is significant.

Objective Seriousness (Territory offence: Mr Booth only)

56․As outlined above, after police arrived at the BNTS site, Mr Booth fled from the site in the Ute, driving the vehicle through the wire fence. Police were unable to intercept the Ute.

57․At the time that Mr Booth drove the ute, he was serving a period of licence disqualification, having been disqualified from driving by the ACT Magistrates Court on 27 August 2021 for a period of 6 years, and again on 22 June 2023, for a further period of 3 years. His present disqualification will conclude on 26 August 2030.

58․As the prosecutor submitted, Mr Booth’s conduct in repeatedly driving whilst disqualified indicates a blatant disregard for court orders. Further, the driving occurred in the context of other serious criminal offending. In these circumstances, I consider that this offending falls in the high range of objective seriousness.

Bugmy (Mr Booth only)

59․As to the moral culpability of Mr Booth only, I make the following findings. As outlined above, in the sentence proceedings, Mr Booth disclosed that he had been a victim of sexual offending as a young child. There are other aspects of Mr Booth’s childhood that are suggestive of disadvantage, including his failure to complete his schooling. In relation to the sexual offending, the prosecutor conceded that the principles in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 “may play a part”.

60․As outlined above, Mr Booth commenced using drugs as a young child. This drug use is inextricably connected to his childhood experiences: see similarly R v Henry [1999] NSWCCA 111, 46 NSWLR 346 at [348] (Simpson J, as her Honour then was). It is well recognised that “young people who start taking drugs at an early age to cope with their distressing emotional or psychological symptoms cannot be expected to fully understand the consequences that a drug addiction will have on their functioning and their subsequent lives”: DPP v Lindsay [2021] VCC 1191 at [27], citing Brown v R [2014] NSWCCA 335 at [27].

61․Where an offender’s childhood experiences have been the foundation for a drug addiction, and where that drug addiction is connected to the commission of the crime, the rehabilitative elements of sentencing may assume greater weight: Henry at [344].

62․In the present case, the offending was the direct result of Mr Booth’s drug use. Mr Booth used ice at the time of the offending, and was motivated to engage in the offending in order to support his drug addiction. In these circumstances, there is a basis to give greater weight to rehabilitation in determining the sentence to be imposed upon him.

Plea of guilty and cooperation with authorities (ss 16A(2)(g) and 16A(2)(j) and (ja) of the Crimes Act)

63․The Court is required to take into account the utilitarian value of a guilty plea: DPP v Padreny [2024] ACTCA 4 at [70] – [74]. A guilty plea may also demonstrate remorse, contrition, acceptance of responsibility and willingness to facilitate the course of justice.

64․Mr Blundell and Mr Booth each pleaded guilty in the ACT Magistrates Court. As the Crown accepted, these pleas were entered at an early opportunity. There is significant utilitarian value in the cost and delay in the trial being avoided, and in bringing finality to the proceedings. I will afford each offender a 25% discount for their early pleas of guilty in respect of each offence.

65․The Court is also required to take into account an offender’s cooperation with authorities. In the present case, Mr Blundell cooperated with police and participated in a record of interview in which he made some relevant admissions. However, as the Crown submitted, Mr Blundell denied knowing the identity of the co-offenders aside from Mr Taylor (who was arrested the same time). He also told police that he did not know the name of the person who escaped through the fence and that he did not know who owned Ute. In these circumstances, I do not consider that the offender’s cooperation with authorities is such that there should be any additional quantified discount to that given in respect of Mr Blundell’s plea of guilty to both charges. I will, however, take Mr Blundell’s limited cooperation with authorities into account when assessing his subjective case and in determining the appropriate sentence to be imposed.

66․Mr Booth did not cooperate with police. He fled from the scene and was located by police more than a month after the incident. Mr Booth told police that he would participate in a record of interview, but failed to do so.

Hardship to family (Mr Blundell)

67․As noted above, Mr Blundell and his wife have the full-time care of their 10 year old grandson, who has been diagnosed with Autism Level 3, ADHD and an intellectual disability.

68․If Mr Blundell were to be incarcerated, his family would suffer the loss of his income (a Jobseeker allowance), the loss of transport and the loss of the support of Mr Blundell. Particularly in view of the special needs of Mr Blundell’s grandson, I am satisfied that incarceration would result in significant hardship to Mr Blundell’s family.

Prospects of rehabilitation

Mr Blundell

69․In view of Mr Blundell’s lack of any significant criminal history, remorse, family supportand the proactive approach that he has taken to withdrawing himself from antisocial influences, I am satisfied that Mr Blundell has excellent prospects of rehabilitation.

Mr Booth

70․Although I am satisfied that Mr Booth is also remorseful, his prospects of rehabilitation are considerably more guarded than Mr Blundell’s prospects. He has a lengthy criminal history. His conduct in driving despite two disqualifications indicates a disregard for court orders. He is motivated to overcome his drug addiction from which the offences emanate, but he will require support for this to occur.

Comparable cases

71․Neither party was able to provide the court with any comparable cases concerning the sentences imposed for either Commonwealth offence.

Determination

Commonwealth offences (Mr Booth and Mr Blundell)

72․For the reasons outlined at [53] – [55] above, the Commonwealth offences committed by each offender are serious. The Crown submitted that no sentence other than imprisonment is appropriate in all of the circumstances: s 17A of the Crimes Act. I agree.

73․As a result of the offenders’ actions, significant damage has been occasioned to a Commonwealth building, which has heritage status. The damage was occasioned using tools to expose cables beneath the floor of the building, and driving the vehicle several times in order to rip out cables from the floor.

74․The maximum penalty for the offence of aggravated burglary is imprisonment for 17 years. The sentences to be imposed must give effect to the need for general deterrence, both on the offenders and for other offenders: s 16A(2)(j) and (ja) of the Crimes Act. The sentences to be imposed must also recognise the financial harm that was caused to the Commonwealth by the offenders’ actions. The maximum penalty for the offence of damage Commonwealth property by joint commission is 10 years’ imprisonment.

75․The offenders’ role in the offending was relevantly identical. However, their subjective cases differ considerably. Whilst the offences were financially motivated, I accept that neither offender was seeking to make a profit. Mr Blundell was under considerable financial and emotional strain, whilst Mr Booth was acting to feed a drug addiction which he first developed when he was only 12 – 14 years old (see further at [42] above).

76․As outlined above, I am satisfied that Mr Blundell has good prospects of rehabilitation. The offending was out of character. Whilst the s 17 threshold is crossed, I am satisfied that the sentence may appropriately be served by Mr Blundell in the community by way of a fully suspended sentence and a recognizance release order.

77․I have considerably greater concerns concerning Mr Booth. As outlined above, Mr Booth’s criminal history is extensive. Whilst his moral culpability has been reduced for the reasons outlined above, there is a greater need to protect the community and to specifically deter Mr Booth from engaging in criminal conduct in the future.

78․However, as is well recognised, “rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest”: Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]. I am satisfied that Mr Booth is motivated to address his addiction. He will require support to do so. As his legal representative submitted, Mr Booth has the benefit of secure housing and a supportive prosocial family member. The Ngunnawal Bush Healing Farm will provide assistance for him in remaining abstinent from drugs and will also provide him with meaningful cultural engagement. He also has paid work with an employer which will enable him to earn an income for himself and his family. With additional robust support from ACT Corrective Services, I am of the view that it is appropriate for Mr Booth to also serve his sentence in the community.

79․It is extremely regrettable that an ICOAR was not requested for Mr Booth. I have considered whether to adjourn the proceedings in order to obtain an ICOAR. Unfortunately, such a report would take at least six weeks to be prepared. The Crown did not invite me to adjourn the proceedings for this purpose. Rather, the Crown accepted that the purposes of sentencing could be met by fully suspended sentences, with appropriate conditions on a recognizance release order. It is not in the interests of Mr Booth, the Court or the community, for there to be a further adjournment of this sentencing proceeding. I am satisfied that a suspended sentence, with supervision by ACT Corrective Services, will achieve the relevant purposes of sentencing.

80․Taking into account the greater need for protection of the community with respect to Mr Booth in comparison to Mr Blundell, the duration of the sentence to be imposed on Mr Booth will be longer than that imposed on Mr Blundell. The sentences to be imposed will be as follows:

(i)    For the offence of aggravated burglary in company, Mr Blundell will be sentenced to a period of imprisonment for two years, discounted by 25% to take account of his guilty plea, to imprisonment for 18 months;

(ii)   For the offence of property damage by joint commission, Mr Blundell will be sentenced to imprisonment for 18 months, discounted by 25% and rounded down to take account of his guilty plea, to imprisonment for one year, one month and 14 days;

(iii)  For the offence of aggravated burglary in company, Mr Booth will be sentenced to a period of imprisonment for two years and six months, discounted by 25% and rounded down to take account of his guilty plea, to imprisonment for one year, 10 months and 14 days;

(iv)  For the offence of property damage by joint commission, Mr Booth will be sentenced to a period of imprisonment for one year, 10 months and 14 days, discounted by 25% and rounded down to take account of his guilty plea, to imprisonment for one year, four months and 14 days.

Territory offence (Mr Booth)

81․For the reasons outlined at [58] above, the Territory offence – that is, repeat drive while disqualified – was a serious form of that offence. The s 10 threshold is crossed. No sentence other than imprisonment is appropriate. However, for the reasons outlined above in relation to the Commonwealth offences, I am satisfied that it is appropriate for this sentence to be fully suspended.

82․The sentence to be imposed for this offence will be a term of imprisonment of four months, discounted by 25% to take into account Mr Booth’s plea of guilty, to imprisonment for three months.

Totality

83․The offending arose out of the same overall criminal enterprise. The sentences to be imposed for each of the Commonwealth offences, and, in the case of Mr Booth, the Territory offence, will be partially concurrent, so as to comply with principles of totality: see generally, Pearce v The Queen [1998] HCA 57; 194 CLR 610; Mill v The Queen[1988] HCA 70; 166 CLR 59 at 63.

Reparation order

84․The Crown also sought a reparation order pursuant to s 21B of the Crimes Act. Mr Blundell and Mr Booth’s legal representatives each urged me to exercise my discretion not to make such an order, particularly in view of the offenders’ lack of capacity to pay such an order.

85․In Vlahov v Commissioner of Taxation (1993) 26 ATR 49, the Full Court of the Supreme Court of Western Australia held that, in deciding whether to make an order under s 21B and in determining the amount of any such order, a court may have regard to the personal circumstances and means of the offender. Although the decision in Vlahov has been criticised (see eg Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders (ALRC 103, 2006), [8.26]-[8.35] and Commonwealth Director of Public Prosecutions, Sentencing of Federal Offenders in Australia’: A Guide for Practitioners (7^th ed., July 2024) at [1208]), Vlahov has been followed by other intermediate appellate courts (R v Hookham (1993) 31 NSWLR 381 at 391)[2] and at first instance in this Court (R v West [2015] ACTSC 134 at [79]). The Crown in the present proceedings did not contend that Vlahov was wrongly decided or that it should not be followed.

[2]On appeal, the High Court declined to consider a Notice of Contention which challenged the correctness of Vlahov, on the basis that this issue was not within the scope of the case stated: Hookham v The Queen (1994) 181 CLR 450 at 457, 460 and 464.

86․The evidence before the Court demonstrates that neither offender has the capacity to pay a reparation order. I accept that an offender’s lack of capacity to pay a reparation order is not necessarily determinative of the question as to whether to make such an order: Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (No 2) [2006] QSC 40; 62 ATR 494 at [59], affirmed in Customs v Labrador Liquor Wholesale Pty Ltd [2006] QCA 558; 65 ATR 547. However, in the present case, an order for reparation would place each offender under further significant financial strain, which may adversely affect each offenders’ rehabilitation, and, in this way, has the potential to be counterproductive to the protection of the community. Accordingly, I decline to make an order for reparation in respect of either offender.

Orders

87․For those reasons, I sentence the offenders as follows:

Mr Blundell

(a)On the charge of aggravated burglary in company (CC2024/5057) the offender Mr Blundell is convicted and sentenced to imprisonment for 18 months to commence on 5 March 2025 and to expire 4 September 2026, with a recognizance release order, pursuant to s 20(1)(b) of Crimes Act 1914 (Cth), permitting his release immediately with security of $250, without surety, and on the condition that he be of good behaviour for a period of 18 months.

(b)On the charge of property damage by joint commission (CC2024/7540) the offender Mr Blundell is convicted and sentenced to imprisonment for one year, one month and 14 days, to commence on 5 February 2025 and to expire on 18 March 2026 with a recognizance release order, pursuant to s 20(1)(b) of Crimes Act 1914 (Cth), permitting his release immediately with security of $250, without surety, and on the condition that he be of good behaviour for a period of one year, one month and 14 days, with a total head sentence for Mr Blundell of one year and seven months.

(c)The conditions of the recognizance release order will be that Mr Blundell is to:

(i)    be subject to the supervision of a probation officer appointed in accordance with the order for such time as the probation officer considers appropriate; and

(ii)   obey all reasonable directions of the probation officer.

Mr Booth

(d)On the charge of driving whilst disqualified as a repeat offender (CAN 6437/2024), Mr Booth is convicted and sentenced to imprisonment for three months, to commence 17 January 2025 and to expire on 16 April 2025. He is disqualified from driving for the automatic period of 2 years, further to the current period of disqualification he is serving, which will commence 27 August 2030, and end on 26 August 2032.

(e)On the charge of aggravated burglary in company (CC2024/7796) the offender Mr Booth is convicted and sentenced to imprisonment for one year, 10 months and 14 days to commence on 17 March 2025 and to expire 30 January 2027, with a recognizance release order, pursuant to s 20(1)(b) of Crimes Act 1914 (Cth), permitting his release immediately with security of $250, without surety, and on the condition that he be of good behaviour for a period of one year, 10 months and 14 days.

(f)On the charge of property damage by joint commission (CC2024/10436) the offender Mr Booth is convicted and sentenced to imprisonment for one year, four months and 14 days, to commence on 17 February 2025 and to expire on 30 June 2026 with a recognizance release order, pursuant to s 20(1)(b) of Crimes Act 1914 (Cth), permitting his release immediately with security of $250, without surety, and on the condition that he be of good behaviour for a period of one year, four months and 14 days, with a total head sentence for Mr Booth of two years and 14 days.

(g)The conditions of each of those recognizance release orders will be that Mr Booth is to:

(i)    be subject to the supervision of a probation officer appointed in accordance with the order for the period of time considered appropriate by the officer;

(ii)   obey all reasonable directions of the probation officer;

(iii)  undertake offence-specific treatment or education programs that the probation officer reasonably directs; and

(iv)  attend the Ngunnawal Bush Healing Farm for the duration of the program or for such lesser time as directed by the probation officer.

I certify that the preceding eighty-seven [87] numbered paragraphs are a true copy of the Reasons for *Sentence *Judgment of her Honour Justice Baker

Associate: A McKay

Date: 11/02/2025