Director of Public Prosecutions v CR (a pseudonym) - [2023] ACTSC 293

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v CR (a pseudonym)
Citation:	[2023] ACTSC 293
Hearing Date:	18 September 2023
Decision Date:	18 October 2023
Before:	Taylor J
Decision:	See [166]-[167].
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – drive motor vehicle without consent – theft – burglary – aggravated burglary – aggravated robbery – arson – substantial criminal history
Legislation Cited:	Criminal Code 2002 (ACT), ss 45A, 308, 310, 311, 312, 318(2), 404 Crimes (Sentence Administration) Act 2005 (ACT), ss 65, 110 Crimes (Sentencing) Act 2005 (ACT), ss 6, 7, 10, 57, 33, 35, 37
Cases Cited:	Apps v The Queen [2020] ACTCA 53 Barrett v The Queen [2016] ACTCA 38 Blundell v The Queen [2019] ACTCA 34 Burge v McCarron, Vincent and Tanner [2011] ACTSC 87 Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 DPP v Crawford (a pseudonym) [2023] ACTSC 266 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Guy v Anderson [2013] ACTSC 5 Henry v The Queen [2019] ACTCA 5 Hili v The Queen [2010] HCA 45; 242 CLR 520 Hillier v DPP (NSW) [2009] NSWCCA 312; 198 A Crim R 565 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Kelly v Ashby [2015] ACTSC 346 KT v R [2008] NSWCCA 51; 182 A Crim R 571 Laipato v The Queen [2020] ACTCA 35 Lowe v The Queen (1984) 154 CLR 606 Markarian v R [2005] HCA 25; 228 CLR 357 MT v The Queen [2021] ACTCA 26 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Nguyen v The Queen [2016] HCA 17; 256 CLR 656 O’Brien v The Queen [2015] ACTCA 47 R v BC [2020] ACTSC 308 R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 R v CR (No 3) [2022] ACTSC 170 R v Dawson [2022] ACTSC 64 R v Deng [2022] ACTSC 143 R v Hall (No 2) [2020] ACTSC 63 R v Hancock [2021] ACTSC 52 R v Hawkins [2020] ACTSC 29 R v Hearne [2001] NSWCCA 37; 124 A Crim R 451 R v Hodge [2019] ACTSC 15 R v Hutchinson [2014] ACTCA 29 R v Jarrold [2010] NSWCCA 69 R v Kelly (No 2) [2021] ACTSC 253 R v Kilic [2016] HCA 48; 259 CLR 256 R v Krutsky [2013] ACTSC 297 R v Krutsky [2013] ACTSC 278 R v Lockwood [2018] ACTSC 288 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v Nicholas; R v Palmer [2019] ACTCA 36 R v Pham (2015) 256 CLR 550 R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327 R v QH; R v CR [2020] ACTSC 178 R v Robertson [2009] ACTCA 19; 174 ACTLR 32 R v Sullivan (No 2) [2020] ACTSC 215 R v TL [2017] ACTCA 18 R v Toumo’ua [2017] ACTCA 9; ACTLR 103 R v Tran [1999] NSWCCA 109 R v Van Rysewyk [2008] NSWCCA 130 R v Way (2004) 60 NSWLR 168 R v White [2023] ACTCA 35 R v Will [2018] ACTSC 154 R v Wrigley [2015] ACTSC 114 Saga v Reid [2010] ACTSC 59 Saipani v The Queen [2021] ACTCA 5 Smith v The Queen [2011] NSWCCA 163 Taylor v The Queen [2014] ACTCA 9 The Queen v Miller [2019] ACTCA 25 The Queen v PM (No 2) [2015] ACTSC 358
Parties:	Director of Public Prosecutions CR (a pseudonym) ( Offender)
Representation:	Counsel C Diggins ( DPP) F Jafri ( Offender)
Solicitors ACT Director of Public Prosecutions Marjason & Marjason Solicitors ( Offender)
File Numbers:	SCC 18, 35 of 2023

TAYLOR J:

Introduction

1․The offender is to be sentenced for what can be described as a spree of offences, committed with co-offenders, in the month of July 2022 when he was 18 years old. As will become clear, at the time of the commission of many of the offences the offender was subject to a suspended period of imprisonment and an Intensive Correction Order (ICO), as well as bail conditions. None of the constraints on the offender’s liberty appear to have had any significant deterrent impact upon him. Some of the offences are particularly serious, such as aggravated robbery and aggravated burglary, and involve the infliction of violence upon victims in their own homes. These types of offences can have immediate and long-lasting impacts upon the victims and their families. The offender is now 20 years of age and, unfortunately, well-acquainted with the criminal justice system.
2․The offender is to be sentenced having entered pleas of guilty to the following offences, accepted in full satisfaction of indictments dated 18 May 2023 (Series 1) and 11 July 2023 (Series 2):

Series 1

(i)Count 2 (SCCAN2023/92) – Aid, abet, counsel or procure aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT) (Criminal Code), which carries a maximum penalty of 2,500 penalty units, 25 years’ imprisonment or both;

Series 2

(ii)Count 2 (CC2022/8437) – Dishonestly drive or ride in a motor vehicle w/o consent contrary to s 318(2) of the Criminal Code, which carries a maximum penalty of 500 penalty units, 5 years’ imprisonment or both;
(iii)Count 3 (SCCAN2023/47) – Burglary contrary to s 311 of the Criminal Code (ACT) and by virtue of s 45A of the Criminal Code, which carries a maximum penalty of 1400 penalty units, 14 years’ imprisonment or both;
(iv)Count 4 (CC2022/8440) – Theft contrary to s 308 of the Criminal Code and by virtue of s 45A of the Criminal Code, which carries a maximum penalty of 1000 penalty units, 10 years’ imprisonment or both;
(v)Count 6 (CC2022/8443) – Dishonestly drive or ride in a motor vehicle without consent contrary to s 318(2) of the Criminal Code, which carries a maximum penalty of 500 penalty units, 5 years’ imprisonment or both;
(vi)Count 9 (SCCAN2023/48) – Burglary contrary to s 311 of the Criminal Code and by virtue of s 45A of the Criminal Code, which carries a maximum penalty of 1400 penalty units, 14 years’ imprisonment or both;
(vii)Count 15 (CC2022/9543) – Arson contrary to s 404 of the Criminal Code and by virtue of s 45A of the Criminal Code, which carries a maximum penalty of 1500 penalty units, 15 years’ imprisonment or both;
(viii)Count 17 (CC2022/8450) – Aggravated burglary contrary to s 312 of the Criminal Code and by virtue of s 45A of the Criminal Code, which carries a maximum penalty of 2000 penalty units, 20 years’ imprisonment or both;
(ix)Count 18 (CC2022/8452) – Aggravated robbery contrary to s 310 of the Criminal Code and by virtue of s 45A of the Criminal Code, which carries a maximum penalty of 2500 penalty units, 25 years’ imprisonment or both;
(x)Count 20 (CC2022/8454) – Dishonestly drive or ride in a motor vehicle without consent contrary to s 318(2) of the Criminal Code, which carries a maximum penalty of 500 penalty units, 5 years’ imprisonment or both;
(xi)Count 26 (SCCAN2023/51) – Burglary contrary to s 311 of the Criminal Code and by virtue of s 45A of the Criminal Code, which carries a maximum penalty of 1400 penalty units, 14 years’ imprisonment or both;
(xii)Count 27 (CC2022/8459) – Theft contrary to s 308 of the Criminal Code and by virtue of s 45A of the Criminal Code, which carries a maximum penalty of 1000 penalty units, 10 years’ imprisonment or both; and
(xiii)Count 29 (CC2022/8602) – Dishonestly drive or ride in a motor vehicle without consent contrary to s 318(2) of the Criminal Code, which carries a maximum penalty of 500 penalty units, 5 years’ imprisonment or both.

Scheduled offences

3․Pursuant to Part 4.4, s 57 of the Crimes (Sentencing) Act 2005 (ACT) (Crimes (Sentencing) Act) the offender has admitted guilt and wants the Court to take into account the following offences in making a sentence-related order for the principal offence contained in Count 9:
(xiv)Count 10 (CC2022/8447) – Theft contrary to s 308 of the Criminal Code by virtue of s 45A of the Criminal Code, which carries a maximum penalty of 1000 penalty units, 10 years’ imprisonment or both;
(xv)Count 11 (SCCAN2023/49) – Theft contrary to s 308 of the Criminal Code and by virtue of s 45A of the Criminal Code, which carries a maximum penalty of 1000 penalty units, 10 years’ imprisonment or both; and
(xvi)Count 13 (CC2022/8449) – Dishonestly drive or ride in a motor vehicle without consent contrary to s 318(2) of the Criminal Code, which carries a maximum penalty of 500 penalty units, 5 years’ imprisonment or both.

Facts

Series 1

4․On or about 10 July 2022, the offender exchanged the following messages with Master Jackson Cooper (a pseudonym) via Facebook Messenger:
J COOPER: Do you remember me?
OFFENDER: Yeah. Do you sell vapes?
J COOPER: Yeah.
OFFENDER: What do you have?
J COOPER: King Buzz.
5․The offender then arranged for a person, whom he referred to as “Tyler” to attend Master Cooper’s home to purchase a vape on his behalf. Master Cooper provided the offender with his address and there was further discussion regarding “Tyler’s” arrival time.
6․At or about 1:30am or 2am on 11 July 2022, the offender messaged Master Cooper saying words to the effect of, “They are here”. Master Cooper responded with the question, “They?”. After approximately 10 minutes, a further exchange took place to the following effect:
J COOPER: Is he still coming?
OFFENDER: Yeah. Like one minute away.
OFFENDER: The boys are here.
J COOPER: The boys?
7․At this point, Master Cooper was sitting in the lounge room of his home with his girlfriend. At the time, the main door and screen door were both locked, and the light on the porch outside the front door was on. Master Cooper went to the front door and opened it. He kept the screen door locked.
8․As Master Cooper opened the door, he observed two males standing at the door, one of which was the co-offender, Mr Troy Graham. Master Cooper greeted both males and opened the screen door to pass out the vape. He then asked if the males had the money. The co-offender said words to the effect of, “Yeah, yeah, yeah. Don’t worry about it,” and tried to push the door open. Master Cooper attempted to close the door but was overpowered. The males entered the residence and pointed a firearm at Master Cooper.
9․Master Cooper ran to his parents’ bedroom. Once inside, he locked the door. Master Cooper’s girlfriend attempted to run to another room with her phone, but the males told her to drop the phone and turn it off. She complied.
10․The males proceeded to Mr and Mrs Cooper’s bedroom, striking and kicking the locked door. One of the males yelled “Give us the money now or I’ll kill youse all”. The co-offender and second male eventually gained access to the bedroom and began to assault Mr Cooper, punching and kicking him. The co-offender also struck Mr Cooper with the butt of his firearm.
11․Mrs Cooper went to Mr Cooper’s aid and pushed the co-offender in the chest. One of the males then struck Mrs Cooper to the right side of her forehead, knocking Mrs Cooper to the floor and causing her to hit her stomach on the base of the bed.
12․As the males continued to assault Mr Cooper, becoming more agitated, Mr Cooper complied with their demands to open a safe inside the house, which contained firearms and ammunition, being:
(a)a 12-gauge Mossberg/195KA shotgun (serial number: 48096);
(b)a .243 calibre Miroku/BLR rifle (serial number: 0225077127);
(c)a 410-gauge Harrington & Richardson shotgun (serial number: 29435);
(d)a .22 calibre Miroku/ML22 rifle serial number: 73102508);
(e)a 410-gauge Boito shotgun (serial number: 894229); and
(f)a .308 calibre Tikka/T3X Hunter rifle (serial number: Y69262).

13․Both males then took all the firearms contained in the safe. Mr Cooper got up from the floor and started to follow the males with the intention of locking the front door behind them. As he did, the third male entered the premises and took three cases of ammunition.
14․The males left and Mrs Cooper called 000 and requested the assistance of both the ambulance service and police.
15․At some point between the incident and the early afternoon of the same day, the offender deleted the messages that he had sent to Master Cooper and blocked him on Facebook.

Correspondence between the offender and the co-offender

16․On 11 July 2022, the offender contacted Ms Annabelle Hinton on the electronic messaging application ‘Signal’ to send a message to the co-offender, Mr Graham. At the time, Ms Hinton was in a relationship with the co-offender. Between 4:00pm and 4:44pm, the following messages were exchanged over Signal:
CO-OFFENDER: My phone is fucked.
OFFENDER: Do you reckon you can do a lift by any chance
CO-OFFENDER: Where do you need to go.
We need to get wheels
So sussing something decent now to take [laughing emoji]
OFFENDER: Yea just from Richardson to belco
ike McGregor
CO-OFFENDER: When do you need to go? Pump a orttyyy [sic] you won’t your scared
Will pay ya $ for it just can’t be fucked right now to do the leg work haha
OFFENDER: Yes ahaha fuck that during the day
What like car jk

CO-OFFENDER: Don’t be scared lad haha nah yea happy to wait tonight just want …………………….something quick either a i30 or a fkn rexy
OFFENDER: I’m on a 2 year ico so I have to serve two years if I get a fresh charge
………………Fuck that during the day
………………I’ll just get a lift
………………But tn
CO-OFFENDER: Hahaha nah don’t do it today do it during the night
……………………I’m happy to go do it myself but I’m a lazy little cunt lately aye
……………………I would come pick ya up rn but I don’t have wheels
OFFENDER: Yea it’s all good
…
CO- OFFENDER: Did that little cunt from sc say anything to u yet
OFFENDER: Who
Who we bought the vape off
CO-OFFENDER: Yeah
……………………Hahaha
OFFENDER: Nah blocked him
CO- OFFENDER: Cunt it was a full dead vape like wtf
Little cheeky cunt ahahaha
OFFENDER: Really
Get anything
The ash [sic]
CO- OFFENDER: Word it was & nah but got a toy
OFFENDER: A new one
From their [sic]
CO- OFFENDER: Not new but a good big one & yea from there.. got food for it too
We need to get wheels
OFFENDER: Yea fair
CO- OFFENDER: Had to do a lot of leg work the whole family where [sic] there if ya get me... ……………………then getting rid of old wheels & now gonna sell the toy and will sling u coin.
Got anything else you could tee up
But you should come next time
Trying to get little redhot to come too ahahaha
17․The word “ash” was a typographical error, with the intended word being cash. “Toy” is a reference to a firearm, and “food” is a reference to ammunition.
18․The offender was arrested on 19 July 2022.

Series 2

Incident 1

19․Between 4:00pm and 4:14pm on 30 June 2022, Mr Stephen Laggner’s Toyota Hilux utility vehicle (CW99XR) was stolen from a building site in Narrabundah. The Hilux had the ‘Laggner Constructions’ company logo printed on the doors. Mr Laggner’s wife posted on a community Facebook page about the missing vehicle and on 1 July 2022 the co-offender, DB, sent a screenshot of this post to the offender. On the same evening, the offender filmed himself in the vehicle while the offender was driving (Count 2). On the morning of the 2 July 2022, DB and an unknown male were captured on CCTV dumping items from the Hilux at an address in Banks. Later that day, police attended and found various Laggner Construction stickered items.
20․DB and KS, another co-offender, exchanged the following messages on 3 July 2022:
DB: Bro what’s the go it’s 1am
KS: Troy’s not answering his phone
DB: Well fuck man I really need a new whip tonight and [CR] setting [sic] at home waiting to go out to get one
DB: We just need you to drive us around to get one that’s all Bc [because] I tbh [to be honest] don’t want to get in that ute again.

Incident 2

21․Some time between 1:30am on 3 July 2022 and 6:27am on 4 July 2022 the offender and DB entered an unlocked home in Dunlop (Count 3). The victim, Ms Kercher, was home at the time. They took the house keys and car keys to the victim’s silver Ford Focus motor vehicle (YOG66U), a handbag and a 7-centilitre bottle of ‘Maker’s Mark 46’ whiskey (Count 4).
22․Around 6:27am on 4 July 2022 the offender filmed himself, DB and an unknown male driving inside the silver Ford Focus (Count 6). The offender is holding the bottle of Maker’s Mark whiskey and the victim’s water bottle can be seen in the car.
23․Between 6:49am and 7:07am on 4 July 2022 the offender filmed DB and KS inside KS’s mother’s house in MacGregor. DB is drinking from the whiskey bottle in the same jacket he had on while in the stolen Ford Focus.
24․At 11:52pm 4 July 2022, the offender filmed DB, KS and [redacted] insider the Ford Focus. DB is in the front passenger seat. A voice can be heard to say, “Hocus pocus, get out the Focus”.

25․At 12:04am on 5 July 2022, KS was filmed in the driver’s seat of the Ford Focus holding a shortened double-barrel shotgun. There were three other people in the car, and these were later identified by [redacted] as herself, the offender and the co-offenders, DB and KS (Count 6).

Incident 3

26․Between 5:00pm on 1 July 2022 and 7:00am on 5 July 2022 registration plates (YNR57R) were stolen from a white Toyota Camry parked at the CSIRO. Between 12:30am and 4:30pm on 4 July registration plates (YAP08V) were stolen from a white Toyota Corolla parked in Duffy.
27․At 2:36am on 4 July 2022 the offender’s phone was connected to a cell tower in Monash. Between 2:39am and 2:43am KS’s phone was connected to a cell tower in Monash. At 2:38am CCTV footage captured the silver Ford Focus circling around Harricks Crescent, Monash. At 2:41am the Focus travelled again along Harricks Crescent with the lights off. At 2:44am the Focus turned onto Harricks Crescent then drove out of view (Count 6).
28․Between 12:30am on 4 July 2022 and 7:00am on 5 July 2022, the offender and co-offenders entered a home on Harricks Crescent in Monash (Count 9). While inside, the offender and co-offenders stole keys, a Tag Heuer wristwatch, prescription glasses, $1,500 in cash and an Apple iPad (Schedule: Counts 10 and 11). They also took a black Audi A5 car that was parked in the garage (Schedule: Count 10). At around 7:00am the occupiers of the home realised their belongings and car had been stolen and called police.
29․At 3:48am the same morning, the offender filmed DB driving the stolen black Audi A5. At 5:25am the offender filmed another video where he is in the front passenger seat and the co-offender is driving. [Redacted] was also in the car; she later identified herself in the footage to police (Schedule: Count 13).

Incident 4

30․At around 11:25pm on 4 July 2022, CCTV captured the stolen black Audi A5 pull up outside KS’s home in MacGregor. DB came out of the house and got into the front passenger seat. DB can be seen holding a blow-torch shaped object in his hand.
31․At 12:53am on 5 July 2022, the offender filmed himself sitting in the front passenger seat of the Ford Focus. The offender filmed the dashboard and through the front car window. The footage depicted DB and KS moving around the engine bay of the propped-up bonnet. The footage also showed the black Audi A5 parked to the left of the Ford Focus.
32․The silver Ford Focus and the Black Audi A5 were recorded at 1:01am by a security camera at Angle Crossing driving in the same direction. At 1:06am KS’s phone was connected to a cell tower near Angle Crossing Road. The offender’s phone was also connected to a cell tower near Angle Crossing Road at 1:12am.
33․Between 1:16am – 1:23am the offender filmed several videos of the exterior of the silver Ford Focus while the cabin was on fire. DB and KS are seen moving around the burning vehicle striking it with poles. The video records the co-offenders saying; “Get the crowbar”, “Some crazy cunt just sitting there doing a burnout”, “The wheel’s still spinning”, “On fire with the brothers”, “There’s a nice profile picture to get me and [DB]”, “I’ve got the photo” and “I can feel the heat from here” (Count 15).

34․The offender and co-offenders drove away in the black Audi A5 and left the Ford Focus on fire. At 1:23am the black Audi A5 was recorded by a security camera at Angle Crossing (Schedule: Count 13)
35․On 7 July 2022 stolen number plates and the burnt out shell of the Ford Focus was found by police on Angle Crossing Road.
36․At 2:55am on 5 July 2022 CCTV captured the black Audi A5 returning to MacGregor. DB got out of the car and the offender moved from the backseat into the passenger seat. The car then drove out of sight (Schedule: Count 13).
37․Later that day, police seized the black Audi A5, which was parked close to the same address in MacGregor. A black balaclava was seized from the vehicle and a mixed DNA profile was found from which the offender could not be excluded. DB’s fingerprints were identified on the stolen plates and the interior of the front passenger window.

Incident 5

38․Around 1:53am on 12 July 2022, the offender filmed the inside of a vehicle with a Subaru logo on the steering wheel. KS can be seen driving, an unknown male is in the passenger seat, and DB and the offender are seated in the rear passenger seats.
39․At 4:20am the same morning, the victim, Mr Albert Stawaruk, was awoken by a loud crash in his home in Lyneham. He saw a male getting into the driver’s seat of his white Audi RS5 and armed himself with a rake. Two other males came from behind him and one of them swung a baseball bat in his ribs. The other said, “Let me have a go at him I’ve got an axe”, while he was holding a small tomahawk style axe. The victim went inside, and the males drove the car away (Counts 17 and 18). The offender’s phone was connected to a cell tower in Lyneham.
40․Mr Stawaruk suffered some injuries of the attack, which were captured in photographs taken at his home. Mr Stawaruk suffered bruising to his ribcage and shoulder, as well as bruising and abrasions along his right forearm, causing bleeding.
41․At 4:26am a speed camera captured the Audi RS5 driving at 135 km/h in an 80 km/h zone, hence exceeding the speed limit by more than 45 km/h.
42․At 4:31am, the offender filmed DB driving inside the Audi RS5 at around 145 km/h. A speed camera captured the vehicle driving at 145 km/h in an 80 km/h zone. DB had his sleeves pulled over his hands while driving, presumably to attempt to avoid leaving fingerprints on the steering wheel of the vehicle. DB said, “Rolling in high-end cars” to which the offender responded, “Pump it”, and the offender then says, “Watch, coming on boost, coming on boost” (Count 20).
43․Between 12:00pm and 3:00pm, registration plates (YKP30E) were stolen from an address in Belconnen.
44․At 10:54pm on 13 July 2022, the offender filmed himself and DB sitting in the back of the stolen Audi RS5. KS was driving the vehicle and the offender says “Yes [KS]. Give it to him”, as KS drove past another vehicle at speed (Count 20).
45․At around 1:20pm on 18 July 2022, New South Wales Police seized the stolen Audi RS5 with the stolen plates (YPK30E) in Queanbeyan. Forensic examination of the car could not exclude the offender as a contributor to a piece of paper with a blood stain that had been left in the car. DB’s left middle fingerprint was located on a dismantled double-barrelled shotgun inside the car. At 3:27pm, DB texted the offender that he had lost the shotgun and the car.

Incident 6

46․At some time between 11:00pm on 18 July and 7:30am on 19 July 2022, the offender and DB entered a home in Garran (Count 26). They stole two French bulldogs, car keys and a white Audi RS4, which was parked in the driveway (Count 27).
47․On the morning of 19 July 2022 the offender filmed DB with one of the French bulldogs as he said, “This ten grand French bulldog is now a hostage” and “you’re going to [KS]. Good home.” The offender filmed two further videos that morning inside the stolen white Audi RS4 showing the co-offender driving the car (Count 29). Later that morning, CCTV showed the car pulling up to the address in MacGregor and departing shortly afterwards with the offender, DB and KS driving away from the house. In the afternoon of 19 July 2022, the offender filmed inside the white Audi RS4, showing KS driving with grey gloves, DB in the back seat and himself in the passenger seat (Count 29).

Arrest

48․On 19 July 2022 at about 2:00pm, the offender was arrested at the Barraclough Crescent shops, Monash. The stolen white Audi RS4 drove away before police could stop the vehicle.

Arrest of co-offenders

49․At about 2:47pm, the stolen white Audi RS4 was driven back to 44 Rowland Street, MacGregor and parked nearby. CCTV footage captured KS walking back into the house.
50․On 20 July 2022 at about 4:20pm, KS and DB were involved in an altercation at the South Point Shopping Centre carpark. CCTV footage showed KS drive the stolen white Audi RS4, bearing stolen licence plates YQF79P, away from the scene and through a boom gate.
51․KS was captured by CCTV footage shortly after, filling the car with petrol at EG Fuel petrol station in Wanniassa before driving away without paying.
52․KS and DB were arrested on 20 July at 10:33pm when police executed a search warrant at 44 Rowland Street, MacGregor.

Sentencing considerations

Nature and circumstances of the offending

53․A consideration of the nature and circumstances of an offence requires an assessment of the objective seriousness of the conduct. The maximum penalty provided for by the legislature provides a “yardstick” against which to assess the objective seriousness of the offending: Markarian v R [2005] HCA 25; 228 CLR 357 at [31]. An assessment of objective seriousness and where offending conduct sits on the spectrum of offending is an important consideration: R v Kilic [2016] HCA 48; 259 CLR 256 at [19]. The Court must consider those factors that bear upon the objective seriousness of each offence. It has been observed that references to low, mid or high range may generally be unhelpful in this jurisdiction and it is preferable to identify the factors that inform the character of the objective seriousness of the conduct: R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24] and Laipato v The Queen [2020] ACTCA 35 at [156].
54․As identified at [3], the Court is to take three offences into account when sentencing the offender for Count 9. In R v Deng [2022] ACTSC 143 Refshauge AJ explained at [74]:
The way in which the offence is taken into account has for this Territory been set out in R v Campbell[2010] ACTCA 20 at [46]-[50]. In summary, the penalty for the primary offence or offences will be affected because the commission of the additional offence or offences will be taken into account. Subject to the limitation of the sentence for the primary offence, which must not exceed the maximum that the Court could have imposed for the principal offence, it is likely that a more severe sentence will result than otherwise may have been imposed - especially as punishment and personal deterrence will be given greater weight. Taking the offence into account is the same as taking into account any other relevant factor, especially those set out in s 33(1) of the Sentencing Act.

Series 1: Count 2 (aid, abet, counsel or procure aggravated robbery)

55․The offender, by virtue of s 45(1), is taken to have committed the offence of aggravated robbery. The applicable penalty is the same for an offence committed by virtue of s 45(1) as if for a principal offender. The offence of aggravated robbery combines dishonest conduct with violent conduct. The maximum penalty for the offence of aggravated robbery demonstrates it to be a very serious offence indeed. This particular incident represents a serious example of the offence in my view. It involved the infliction of actual violence and force on Mr Cooper, Mrs Cooper and their son (a child) in their own home, resulting in injury to Mr Cooper and bruising to Mrs Cooper. In this case, the offending was undoubtedly responsible for instilling great fear in Mr Cooper and his family. In R v Robertson [2009] ACTCA 19; 174 ACTLR 32, the offence of aggravated robbery was described by the Court of Appeal at [9] as “an offence of the utmost gravity”.
56․Having observed those matters it is necessary to assess the extent to which the offender was involved in the offending. As Mossop J observed in R v Will [2018] ACTSC 154 at [27], the culpability of a person who performs a role that aids, abets, counsels or procures an offence will vary depending on the circumstances of each case:
In some cases, the role of such a person will be at the periphery of the criminality. In other cases, such as this one the person will be central to the planning and organisation of the crime and hence, the conduct will warrant punishment to no lesser extent than the persons who perform the physical acts constituting the offence.
57․While the prosecution readily conceded that the offender did not, in fact, attend the victim’s home and so did not participate in any of the physical conduct engaged in there by the co-offenders, his role was not entirely on the periphery. The offender played a central role in arranging the circumstances in which the connection was made with the victim and to a large extent facilitated direct access by the co-offenders to victim’s home. The offender exploited his longstanding association with the victim’s son to set up the circumstances that enabled the offence to occur.
58․Based on the agreed statement of facts, I am satisfied beyond reasonable doubt that the offender was aware that, when he facilitated the connection, the co-offenders intended to commit an offence. I am satisfied of this, taking into account in particular the way the offender set up the connection, the subsequent enquiries made by the offender and the responses of the co-offender after the event had occurred. This includes the offender asking the co-offender after the event “Get anything”, as well as making an enquiry I am satisfied was in relation to whether cash was being obtained. The offender also told the co-offender that he had blocked Master Cooper. Further, the co-offender suggested that the offender would share in the proceeds of the sale of the stolen firearms and asked the offender whether there was “anything else [the offender] could tee up”. I am also satisfied that the offender was aware of the circumstance of aggravation, namely that the co-offender was in company; it is the only inference to be drawn from the offender’s use of “the boys” when notifying Master Cooper that there were people arriving at his home to complete the transaction. The prosecution conceded that there is no evidence to support a suggestion that the offender knew the co-offender would be in possession of a firearm.
59․The offender’s role, in light of the features I have identified, was of some significance. I consider his culpability to be high.

Series 2: Count 2, Count 6, Count 20 and Count 29 (Scheduled Count 13 to be taken in account) – drive or riding in a motor vehicle without consent

60․R v Rosewarne [2021] ACTSC 217 at [124], R v Massey (No 3) [2021] ACTSC 156 (Massey (No 3)) at [29], Sampson v De Haan [2016] ACTSC 270 at [40] and R v Lock [2016] ACTSC 319 at [15] identify factors relevant to an assessment of objective seriousness for this offence. They can be summarised as follows:
(a)whether the offender drove or rode in the vehicle;
(b)the duration of the driving or riding in the vehicle;
(c)if the offender was the driver – the nature of the driving (unless charged separately);
(d)whether the driving caused damage to the vehicle (unless charged separately) and whether the vehicle was recovered undamaged and returned to the owner;
(e)whether the vehicle was used in the commission of another offence;
(f)the motivation for the use of the vehicle; and
(g)the level of inconvenience to the owner of the vehicle.

61․This offence represents inconvenience and disruption to the owners of the vehicles. Against the background of the factors identified above, I make the following observations of the conduct engaged in by the offender.
62․Count 2 involved a vehicle used to operate a family business. The Victim Impact Statement (VIS) of Mr Stephen Laggner, which I will address in more detail below, comprehensively sets out the very real impact upon him and his business arising from the vehicle not being available for use for some time and the significant damage occasioned to the vehicle. The offender was a rider in this vehicle when it was being driven by a co-offender.
63․Count 6 involved a vehicle taken from the victim’s home during a burglary. The offender was a rider in the vehicle and filmed co-offender DB on one occasion when he drove it. The vehicle was driven by DB while the offender was a passenger over a period of some three days. The vehicle was later used for further offending (Counts 9, 10, 11 and 15). The motor vehicle was completely destroyed, arising from the conduct engaged in for Count 15. The motor vehicle had stolen number plates attached to it when it was located.
64․Count 20 involved a vehicle taken from the victim’s home during the course of a burglary. The offender was a rider in the vehicle. On 12 and 13 July 2022 he was a rider in the motor vehicle when it was driven recklessly by co-offender DB. The offender filmed DB driving and can be heard, essentially, egging DB on, saying “pump it” as he drove the vehicle. The offender also filmed co-offender KS driving the vehicle and can be heard again egging KS on as he drives at speed. The victims were without their car for 6 days and when it was located it had stolen number plates attached.
65․Count 29 involved a vehicle taken from the victim’s home during the course of a burglary. The offender was a rider in the vehicle while DB drove it over the course of 19 and 20 July 2022. Again, the offender filmed DB driving while the two family dogs, who were also stolen in the burglary, can be seen in the vehicle. The vehicle was later used in further offending that did not involve the offender.
66․Scheduled Count 13 involved a vehicle taken from the victim’s home during the course of a burglary. Again, the offender was a rider in the vehicle while DB drove it on 5 July 2022 on more than one occasion. The offender again filmed DB driving the vehicle. The vehicle was later used in the commission of Count 15.
67․Based on the statement of facts, in each case it is clear that all victims experienced a degree of real inconvenience. In particular, the extent of the inconvenience experienced by the victim in relation to Count 2 is helpfully informed by the VIS provided. That said, the victim’s vehicle in Count 2 was not able to be returned to her at all and the victims in Count 20 were without their vehicle for 6 days. In my view, there is little to distinguish the offender from his co-offenders in relation to this offence, except to note that he was riding in the vehicles, not driving.

Burglary, aggravated burglary, theft, arson and aggravated robbery

68․I have already made general observations about the offence of aggravated robbery above at [64] and will identify the features of the remaining aggravated robbery below at [80].
69․I note the following matters as relevant to an assessment of the objective seriousness of the offending when identifying the features of the burglary offences and by extension to the aggravated burglary offence below, outline in R v Hancock [2021] ACTSC 52 at [33] and R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327 at [48]:
(a)whether the property on which the offender trespassed was residential (which renders the offence more serious);
(b)whether there was damage committed on entry or while the offender was in the premises, (unless causing that damage is separately charged) and whether there was vandalism involved;
(c)whether the occupants of the premises were in the premises when the burglary occurred or the burglary was committed at a time when they were likely to be present;
(d)the motivation for the burglary;
(e)whether there was premeditation or planning or organisation, especially professional organisation and execution;
(f)whether there are on the premises, or were likely to be there, elderly, sick or disabled persons (especially aggravating if the offender is aware of this matter);
(g)whether the offence is committed in a series of repeat incursions into the same premises; and
(h)the actual trauma suffered by the occupants.

70․Before moving to the specific features of each offence for each case of burglary, I make the following general observations common to each of the burglary-related offences with the above factors in mind:
(a)the offences are somewhat brazen to the extent that they occur at times when residents would be expected to be inside (which is in fact the case in all offences);
(b)the motivation for the offending is, in my view, not entirely clear. The items stolen in the burglary were not large in number and, aside from the motor vehicles, were not of significant value. The burglaries facilitated access to the vehicles, and it seems to me that it is this access that is the heart of the reason for the offending. The suggestion that the offending was driven largely by a desire to secure illicit substances is difficult to entirely accept given the vehicles were not on-sold for profit in any single instance. I accept a need to fund the use of drugs played some role in the offending. For the most part the vehicles were used for the offenders to travel around together, show off to each other and, in some cases, travel to other offending opportunities. The offender seemed to derive something from filming inside the vehicles while they were being driven;
(c)there was no significant damage or vandalism involved in any of offences;
(d)there were no particularly vulnerable residents, such as disabled or sick persons, present in the home when the burglaries occurred; and
(e)the offences do not have the hallmarks of precise planning or organisation. Indeed, they appear to be largely opportunistic and unsophisticated. They are offences, as I have already observed, attended to by some significant immaturity. That said, there is some level of organisation involved for the co-offenders to be together and determine to commit the offences in company. The availability of weapons for the aggravated burglary involved some degree of preparation.

71․Putting aside the aggravated burglary and taking into account the observation made above and the features of the individual offences described below, in my view the burglary offences are in the mid-range of objective seriousness. I am of the same view in relation to the theft offences that involve the theft of motor vehicles and in relation to the remaining theft offences I consider that they are in the lower range of objective seriousness.
72․An offender who is knowingly concerned in the commission of an offence is taken by virtue of s 45 of the Criminal Code “to have committed an offence” and is liable to the same punishment as if “the person had committed the offence.” Thus, the offence of arson or being knowingly concerned in an arson, is a very serious offence, noting the maximum penalty. The objective seriousness of an offence committed by virtue of s 45 involves consideration of the objective seriousness of the principal offence as well as the nature and extent of the offender’s involvement.

Arson, knowingly concerned

73․R v Wrigley [2015] ACTSC 114 at [34] sets out the factors relevant in this jurisdiction in relation to the offence of arson. They are as follows:
(i)how the fire was lit (for example, whether an accelerant was used);
(ii)whether the offending was intentional and the degree of premeditation or planning;
(iii)the degree of potential injury to life or harm to others; and
(iv)the extent of damage caused by the fire.

74․There is nothing before the Court that would allow a determination to be made about how the fire was lit. I am satisfied beyond reasonable doubt that the fire was intentionally lit and that there was some degree of planning, noting co-offender DB had with him a blow torch when he got into the Black Audi. I am also satisfied beyond reasonable doubt that the fire was lit in order to destroy a vehicle that was both stolen and had been used in the commission of other offences. The vehicle was entirely destroyed. There is no suggestion there was a real risk of injury to life or harm to others, though of course once set alight the blaze was largely out of the control of the offenders, who were in close proximity to the vehicle. These features see the principal offence as a serious example of the offence.
75․By virtue of the offender’s plea of guilty he accepts being “knowingly concerned”. The offender’s level of involvement is not clearly particularised. What it means to be “knowingly concerned” is not defined in the Code. In R v McIver; R v Williams [2021] ACTSC 227, Elkaim J was required to consider the question of being “knowingly concerned” and observed this at [88]-[89]:
88. Counsel said there do not seem to be any ACT cases on the meaning of “knowingly concerned”. The phrase is not defined in the Criminal Code 2002 (ACT). The Crown however said that the appropriate way to approach the matter was described in R v Kelly [1975] 24 FLR 441, a decision of the Full Court of the Supreme Court of South Australia. The Court said at page 453:
We think it is a mistake to believe that a man has to be engaged in active participation in some scheme before he can be said to be knowingly concerned. No doubt some act on his part would normally be required in order to prove his knowing concernment. The meaning of the word “concerned in a similar context was considered by the Full Court of Western Australia in Asbury v. Reid ([1961] W.A.R. 49). Having cited the definition of the word from the Oxford Dictionary, the court, in considering whether an act or omission on the part of an individual came within the terms of the section, posed the question “whether on the facts it can reasonably be said that the act or omission shown to have been done or neglected to be done by the defendant does in truth implicate or involve him in the offence, whether it does show a practical connection between him and the offence”.

89. Lee J in the New South Wales Court of Criminal Appeal, in Tannous v The Queen 31 A Crim R 301 confirmed the applicability of the test set out in Ashbury v Reid [1961] WAR 49 (Ashbury) and added this important passage:
A father, learning that his son had made arrangements to import narcotic drugs into this country might well be anxious about, interested in or concerned about the fact and he might evince that anxiety, interest or concern to others. But he would not be guilty of the offence of being knowingly concerned merely from his knowledge of the importation and his state of mind arising therefrom. Before he could be convicted under the section he would have to do something to connect himself with or involve himself in the importation.

76․The offender was certainly present when the arson occurred. I am satisfied beyond reasonable doubt that he travelled to the scene of the arson with the co-offenders and remained at the scene while the arson was committed, and the vehicle was well and truly alight. His involvement certainly practically connected him to the arson and involved him in it to the extent that he was present and filmed the co-offenders. That is the level of involvement upon which I will sentence the offender for the offence.

Features of the remaining counts relevant to an assessment of objective seriousness

Series 2, Incident 2: Count 3 (burglary) and Count 4 (theft)

77․The burglary occurred at an unlocked residential home at about 1.30am. The victim was home. The offender entered the home with co-offender DB. The items stolen included the victim’s house keys, motor vehicle, car keys, handbag and a bottle of whiskey. The smaller items, while not representing significant value, are personal items, the absence of which would have caused inconvenience and concern, particularly in relation to the house keys. The motor vehicle was an item of higher value.

Series 2, Incident 3: Count 9 (burglary), Scheduled offences: Count 10 (theft), Count 11 (theft)

78․The burglary occurred at a residential home between 12.30am and 7.00am. The offender entered the home with co-offenders. The victim was at home when the burglary occurred. The items stolen in the burglary included the Audi A5 motor vehicle, a set of Audi A5 car keys, a Tag Heuer wristwatch and a pair of prescription glasses (Count 10) as well as $1,500.00 and an Apple iPad (Count 11). The theft of house keys and the iPad would have caused concern and inconvenience. The value of the items for Count 10 was not insignificant.

Series 2, Incident 5: Count 17 (aggravated burglary), Count 18 (aggravated robbery)

79․The aggravated burglary occurred in the early hours of the morning when the victim was sleeping. It is not clear from either the agreed statement of facts or the VIS from the victim’s wife whether she was also present in the home when the offending occurred. Nonetheless, the victim met with three men: one getting into his vehicle and two confronting him directly, one armed with a small tomahawk and the other with a baseball bat. The victim was subjected to actual violence and suffered injury as a result, described at [40]. He was also subjected to the threat of further violence. The violence was inflicted to facilitate the theft of the victim’s vehicle and to escape the scene. While there is no VIS directly from the victim, Mr Stawaruk, I do not need one to infer that the experience of waking to a loud crash only to find three men in the immediate vicinity of his private home would have been utterly terrifying and the violence he was then subjected to would have been shocking and painful. The conduct involved in each offence happened within a very close period of time. The offending, in either case, does not appear to have lasted for a lengthy period.
80․On any view, these two counts are very serious examples of the offence in the higher range of offending. As will become clear in the sentencing remarks for co-offender DB, see DPP v DB [2023] ACTSC 294, I am satisfied DB was the driver of the motor vehicle taken from the Lyneham home. I satisfied beyond reasonable doubt that the offender was one of the two men who either inflicted or threatened violence against the victim. On the material before me I cannot be satisfied beyond reasonable doubt that it was the offender who inflicted the violence on the victim by hitting him with the baseball bat. I have approached the matter on the basis that the offender had a less serious role in that he threatened violence. This role was nonetheless significant and the assessment I have made of his individual role does not undermine the overall assessment of the offending as very serious.

Series 2, Incident 6: Count 26 (burglary) and Count 27 (theft)

81․The offences occurred at the victim’s home when he was sleeping. The theft relates to the victim’s motor vehicle an Audi RS4, his car keys and two French bulldogs – the family pets. The value of the items is not insignificant – in particular in I note the sentimental value of two family pets taken for some days before being returned.

Subjective circumstances

82․The material before the Court included a Pre-Sentence Report (PSR) dated 4 September 2023 and character references from Ms Fiona Buckley and [redacted], dated 14 September 2023 and 17 September 2023, respectively.

Pre-Sentence Report

83․The offender is now 20 years of age. He was born in Canberra and is the youngest of three children. His parents separated when he was roughly six or seven years old, after which he continued to live with his mother in Canberra, occasionally visiting his father in Collector, New South Wales. The offender stated to the author of the PSR that he was not exposed to any antisocial influences during his childhood, however the author noted that Services Australia records indicated that both the offender’s parents have a past involvement in criminal activity. The offender reported being in a supportive relationship for the past year. His partner visits him at the AMC.
84․The offender frequently changed primary schools due to behavioural difficulties. His mother reported that he commenced at Galilee Special Assistance School part-way into year seven. His mainstream high school education, however, was interrupted following his incarceration. The offender claimed to have completed years 10 and 11 while in Bimberi Youth Justice Centre. The offender reported he is able to read adequately, but acknowledged he struggles with his writing skills.
85․The offender told the author of the PSR he had obtained his asbestos and white card certification. He has a limited employment history as a temporary labourer, lasting only a few weeks, due to his incarceration. The offender expressed his desire to commence work at his father’s concrete construction company upon his release from the AMC, which his father verified. The offender wishes to get a driver’s licence, own a motor vehicle and establish his own company in the future.
86․The offender stated that his social circle consists mostly of individuals who engage in substance use. Most of the offender’s associates have criminal records and are involved in criminal activity. The offender recognised that his friends were a poor influence, however noted few other associates. The author of the PSR noted it was essential for the offender to identify and seek out alternative social networks and develop coping strategies to effectively manage his anti-social behaviours.
87․The offender reported historical alcohol consumption commencing at 11 years old, when he would consume it in a social setting with friends. The offender did not consider this consumption problematic, stating he would consume a six-pack of pre-mixed alcoholic beverages fortnightly with his friends. The offender also began to socially use cannabis at approximately 11 years old after being introduced to it by his brother’s friends. However, by the age of 14, his cannabis use had increase to daily until the age of 16.
88․When the offender was approximately 13 to 15 years old he consumed ecstasy or MDMA on a fortnightly basis, usually on weekends. When the offender was 15 years old, he overdosed and suffered drug-induced psychosis, resulting in his admittance to hospital. There, he received appropriate medical care and did not experience further medical complications. This information was confirmed by the offender’s mother.
89․The offender reported consuming methamphetamine to the author of the PSR only on two or three occasions. This claim is somewhat at odds with his further claim that during the course of the offences subject of these proceedings he was under the influence of methamphetamine or other illicit substances. It is also at odds with the opinion of the author that he would benefit from intensive support for his drug and alcohol usage. While I accept the author’s view of the offender’s need to address his drug and alcohol usage, based on the offender’s claims of how often he has used methamphetamine it is difficult to properly assess the extent of the challenge drug use presents to him. This was not entirely resolved by oral submissions.
90․The offender has not participated in any alcohol or drug treatment programs in the community or while in any custodial setting.
91․The author of the PSR reported that the offender raised no significant medical conditions, however noted that the offender was receiving ongoing care for a surgically-repaired injury to his hand as well as an injury to his Anterior Cruciate Ligament (ACL). The offender reported sustaining a head injury when he fell from a tree, aged nine years old. The offender’s mother claimed several attempts to further investigate this injury were hindered due to the offender being in and out of custody. The offender’s mother disclosed noticeable changes to the offender’s behaviour following the accident, however a definitive conclusion directly linking the offender’s injury to his offending behaviour was not reached.
92․The offender told the author of the PSR that he struggles with his sleep and depression due to “nothing good happening” in his life. A Custodial Mental Health Service evaluation on 20 July 2022 found there was no evidence the offender suffers from a significant mental illness and the offender denied thoughts of self-harm during this evaluation.
93․The author of the PSR noted that the offender appears to be eligible for a referral to Restorative Justice. The offender was found not suitable for a fine or Community Service work condition due to his limited financial resources and unresolved illicit substance abuse issues.

Character references

Ms Fiona Buckley

94․Ms Buckley also provided a character reference in support of her son. Ms Buckley has worked for the past eight years as a phlebotomist. Upon his release, the offender will live with Ms Buckley at her home in Richardson.
95․Ms Buckley has recently spoken to her family doctor, Dr Jennifer Bromley, and plans to book appointments for the offender with both Dr Bromley and a psychologist at Dr Bromley’s practice, Dr Thabile Twala, upon the offender’s release. Both Dr Bromley and Dr Twala have experience working in the prison system, and Dr Bromley has treated the offender from a young age.
96․Ms Buckley noted a few medical concerns she has for the offender. Firstly, she reported that the offender required surgery for his ACL (which was noted in the PSR) and that he had exacerbated this injury whilst in the AMC, causing the offender constant pain. Ms Buckley also stated that, prior to being in custody, she and the offender had begun to re-engage with assessments concerning a head trauma suffered by the offender when he was nine years old (also noted in the PSR). Ms Buckley expressed concern that this trauma, alongside with her claim that the offender was diagnosed with ADHD in 2021, “has not been addressed properly” and could improve, “perhaps if treated with counselling or medication”.
97․Similar to [redacted], Ms Buckley also expressed concern for the offender’s mental health, stating that she believes that offender has found it difficult being in the AMC on remand. Ms Buckley is also concerned about the negative influence that other people in the AMC may have on the offender and wishes for her son to learn to function as a member of society, re-engaging with “the good people in his life” rather than being institutionalised.
98․Ms Buckley spoke to her positive and communicative relations with her ex-partner, the offender’s father, who has offered an opportunity for the offender to work with him as a concreter. Ms Buckley also noted that the offender’s brother is hoping to start his own gardening business next year and that this may provide another employment opportunity for the offender.
99․Additionally, Ms Buckley highlighted her family’s struggles over the past year, namely the health issues of her parents, the offender’s grandparents, stating that, in particular, the offender’s grandmother’s mental health has suffered as a result of the offender’s incarceration.

[Redacted]

100․[Redacted] provided a character reference to the Court in support of the offender, who is her partner. [Redacted] is currently employed part-time at a butcher and is about to begin studying mental health work.
101․[Redacted] spoke to the negative impact that being held in custody, on remand has had on the offender’s mental health. She noted that the offender had experienced “some pretty personal traumatic stuff” over the last two years and that she does not believe he has access to adequate mental health support for this. No further explanation of the traumatic events to which she refers was provided. She also noted that the offender has spent time in the medical ward in the AMC, having reinjured his knee, and has been unable to receive proper care for his ACL injury.
102․Notably, [redacted] also has a criminal history and was present for some of the Series 2 offences. [Redacted]’s letter referred to “a good group of friends” who “all want to support [the offender] and help him say on the right path and a good path and to stay out of jail”. This assertion is somewhat at odds with the offender’s comments to the author of the PSR that “his social circle primarily comprises of individuals who engage in substance use”, with “most of his friends and associates [having] criminals records”. The offender himself has recognised that his friends are a “poor influence”.

Remorse and Rehabilitation

103․The offender has demonstrated some remorse through his acknowledgement of full responsibility for his conduct and of the gravity of his offending. He demonstrated some insight into his offending describing it as impulsive and reflective of poor decision making. He was also able to connect his use of illicit substances with his offending conduct. Remorse is a factor relevant to his prospect of rehabilitation: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [41]. Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community safety and is in the public interest: Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32].
104․On the other hand, the offender has an appalling history of non-compliance with community-based orders and has demonstrated non-compliant behaviour while on remand for these offences. It is difficult to assess his current prospects of rehabilitation. Given that the outcome of these matters will involve further time in full-time custody the offender, if he chooses, can avail himself of programs to assist him with his use of illicit substances, something I am satisfied would significantly enhance his prospects of rehabilitation. This is a factor that he does not appear to have ever substantially addressed despite his extensive criminal history. There is also the possibility that with age he will develop additional maturity, a distinct lack of which I am satisfied played a role in this offending. Rehabilitation, I am satisfied, remains a possibility for the offender if he commits himself to addressing the factors contributing to his offending. Noting those observations, the parole authorities will be in a better position to assess the offender’s progress at the time when any application for a grant of parole is to be determined.

Criminal history

105․The offender has an extensive criminal history despite his young age. His criminal history includes convictions for violence, driving offence and property offences, as well as breaching family violence orders. The offender has previously been sentenced to periods of full-time detention. He has entries on his criminal history in the ACT, NSW and Queensland.
106․Whilst in custody, ACT Corrective Services have recorded two disciplinary breaches against the offender, namely for drinking sanitiser mixed with another drink stolen from an office and for owning a bag of ‘jail brew’ in a rubbish bin in his cell. The offender received 7-day and 14-day losses of privileges for these breaches, respectively.

Time in custody

107․The offender has been remanded in custody in relation to the current offences since 19 July 2022.

Conditional liberty

108․The offender was subject to conditional liberty at the time he committed the offences, outlined below:
(i)The offender was subject to an ICO, imposed by Magistrate Lawton on 24 June 2022, expiring on 23 June 2024. As Count 2 of Series 2 was committed on 1 July 2022, the offender therefore breached this ICO within days of being released from custody under the terms of the ICO. The breach of conditional liberty also applies to Series 1 given it was committed on 10 July 2022.
(ii)The offender was subject to a Suspended Sentence Order (SSO) imposed by Elkaim J on 12 July 2022: see R v CR (No 3) [2022] ACTSC 170. On that day the offender was sentenced to 15 months’ imprisonment for aggravated robbery and four months’ imprisonment driver or ride in a motor vehicle without consent. These sentences were imposed concurrently and suspended immediately on condition that the offender be of good behaviour for a period of 15 months. Counts 17, 18, 20, 26, 27 and 28 and therefore in breach of the SSO. Notably, on the same day the offender made the undertaking to be of good behaviour, he committed an aggravated burglary and aggravated robbery (both in company and armed with an offensive weapon) (Counts 17 and 18).
(iii)Additionally, the offender was on conditional bail from 20 June 2022 to 12 July 2022. Hence, the offender was on bail for part of the date range in Series 1 as well as Counts 2, 3, 4, 6, 7, 15, 17, 18 and part of 20 of Series 2.

109․The prosecution submitted that the above circumstances are an aggravating feature, the offender having betrayed the opportunity to be in the community and pursue rehabilitation: R v Tran [1999] NSWCCA 109 at [15]. The fact that an offender was on conditional liberty is relevant to the determination of the appropriate punishment for an offence and does not influence the objective seriousness of an offence: Smith v The Queen [2011] NSWCCA 163 at [26]. See also R v Way (2004) 60 NSWLR 168 at [90]-[92], Hillier v DPP (NSW) [2009] NSWCCA 312; 198 A Crim R 565 at [30] and R v Van Rysewyk [2008] NSWCCA 130 at [25]. I bear in mind that I must approach this feature of the offending with care so as to avoid double punishment: Kelly v Ashby [2015] ACTSC 346 at [61].

Guilty Pleas

110․The offender entered pleas of guilty for the Series 1 offence after a Criminal Case Conference but before a trial date was set.
111․The offender entered pleas of guilty for the Series 2 offences at a Criminal Case Conference on 14 July 2023. A trial date had been set for 25 September 2023. The trial had an estimate of 15 days.
112․It was accepted that utilitarian value is attached to the entry of those pleas and the offender is entitled to a discount reflecting that value: s 35 Crimes (Sentencing) Act 1900 (ACT) (Crimes (Sentencing) Act). Section 37 of the Crimes (Sentencing) Act requires that I state the penalty that I would otherwise have imposed. Having regard to the timing of the pleas, the sparing of the victims from having to give evidence as well as the saving of considering court time, and consistent with Blundell v the Queen [2019] ACTCA 34, I have afforded a discount of around 20 percent in recognition of the offender’s guilty pleas to each offence.

Parity

113․There being co-offenders for both the Series 1 and Series 2 offences, I must consider the principle of parity, described as embodying the concept of “equality before the law”: see Green v The Queen; Quinn v the Queen [2011] HCA 49; 244 CLR 462 at [28].
114․In Saipani v The Queen [2021] ACTCA 5 at [56] the Court of Appeal articulated the principle in this way:
The “parity principle” is a manifestation of the fundamental principle of equality before the law. As Gibbs CJ said in Lowe v The Queen (1984) 154 CLR 606 at 609:
“[I]t is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence…”.

As his Honour observed, however, other things are not always equal. There may, for example, be differences in degree of involvement of offenders in a joint offence, differences in their antecedents, and differences in the charges brought against them. The present case is primarily concerned with the application of the parity principle in circumstances where the appellant came to be sentenced on a more serious charge than those to which his co-offenders entered pleas of guilty.
115․The co-offender for the Series 1 offence is yet to be sentenced and the prosecution conceded that parity in relation to that co-offender Mr Graham did not loom large as his role was greater than the offender’s and his physically attended the victim’s home and actually inflicted violence.
116․Co-offender KS is yet to be sentenced. I am to also sentence one of the co-offenders, DB, for Series 2. DB is similarly a young man with an extensive criminal history including for property offences and offences of violence. DB has demonstrated some real desire for reform through the efforts he has made while on remand. Co-offender DB was on bail when he committed the offences though not the subject of any other court order. As I have noted DB was the driver on occasions where the offender was the rider in the motor vehicles.
117․Where there are substantial differences between the co-offenders, the sentence imposed should reflect that difference: Lowe v The Queen (1984) 154 CLR 606 at 609 cited with approval in R v Nicholas; R v Palmer [2019] ACTCA 36 at [99] when the Court explained:
The [parity] principle acknowledges the need for consistency in punishment while recognising that sentencing is individualised and offenders present with difference subjective circumstances that must be taken into account.
118․The efforts demonstrated by DB while he has been in custody in relation to rehabilitation are of some significance, so too are some of the features of his background circumstances. The same efforts have not been demonstrated by this offender. Of course, this offender will be subject to an overall sentence that will be different to that of the co-offender, DB, arising from the need to deal with the cancellation of the ICO and the breach of the SSO, discussed below at [128].

Victim Impact Statements

119․Four VIS were tendered in these proceedings as per the victims’ request. Two of the statements were read aloud during the proceedings. I am obliged to take into account the effect of the offending upon the victims pursuant to s 33(1)(f) Crimes (Sentencing) Act.

Series 1

120․The first statement tendered was that of Mr Marcus Cooper (a pseudonym). Mr Cooper, whose neck was fractured as a result of being physically attacked during the offences, has suffered from severe pain since. Consequently, Mr Cooper attends weekly hydrotherapy and takes medication, which provides limited relief. His doctor has told him he will have to live with this pain for the rest of his life and that it will likely worsen with age. Mr Cooper also suffers from anxiety and nightmares. He attends counselling weekly and has placed security cameras and lights around his house to try and feel more “comfort and safety”. Due to his injuries, Mr Cooper has also been put on light duties at work, which has decreased his income. This, combined with his weekly medical costs for his physical and mental injuries, has placed significant financial strain on his family.
121․The second statement was that of Mr Cooper’s wife, Mrs Brenda Cooper (a pseudonym). Mrs Cooper suffers from epilepsy, which is worsened by stress. Due to her husband’s injuries, Mrs Cooper must work six days a week, but is still struggling to support their family. She is also responsible for all the house and yard duties, which she describes as “very stressful”. Mrs Cooper described being “afraid to even live in [her] own home”, and often wakes up at night “in a sweat and crying”. As a result of the seizures she has suffered since the offending, Mrs Cooper has fractured bones in her face and her leg. Her doctor has warned her that having another grand mal seizure will result in life-long injuries, or even risk her life.
122․Both Mr and Mrs Cooper spoke to the severe impact of the offending on their son, Shane, who now suffers from depression and has daily anxiety attacks. Shane has “cut himself off from all friendships” and has attempted suicide several times.

Series 2

123․Two further VIS were tendered for the Series 2 offences: from Mr Stephen Laggner and Mrs Barbara Stawaruk.
124․In his VIS, Mr Laggner recounted suffering both personally and professionally from the theft and subsequent actions of the offender and the co-offenders. The vehicle stolen, which was a company vehicle, was used not only during business hours but also by Mr Laggner’s brother. Without the vehicle, Mr Laggner’s brother relied on their elderly parents, who reside in New South Wales, to drive him to and from work. Mr Laggner’s brother has been “forced to purchase a new vehicle at a considerable expense on his limited income to remain working for the family construction company”. In addition to the vehicle, several personal items were also stolen from the vehicle. Some of these items were never returned, while others were located a few weeks later, burnt and scattered over a paddock in Fyshwick alongside Laggner Construction business cards. Mr Laggner and his brother were extremely distressed when they were contacted about this by a member of the public. Mr Laggner’s business has also suffered as a result of the offenders’ conduct, as the stolen vehicle was used to commit further crimes, tarnishing Mr Laggner’s business’ reputation. This resulted in many distressed people contacting Laggner Constructions. The nature of the offence meant that Mr Laggner was also unable to claim any damage to the stolen vehicle on insurance, so his business has had to bear the financial cost of this.
125․Mrs Stawaruk’s VIS outlines the impact the offending has had on her mental health. Mrs Stawaruk says she has “not been able to get out of [her] mind the sight of the terrible bruises which covered [her] husband’s torso and arms from the attack on him” and the “fears of the incident reoccurring have not left” her. She “constantly imagine[s] the worst” and has “not managed to have a restorative sleep since the [co-offenders] broke into [her] home”. Mrs Stawaruk reports heightened anxiety when her children or grandchildren come to stay and consequently she and her husband see now see their family less. Mrs Stawaruk feels sickened to her core “that the perpetrators came armed, with a plan to harm anyone who got in their way”. Consequently, Mrs Stawaruk and her husband has decided to sell their home and move into an apartment, seeking greater security.
126․All of the statements reveal the intense and pervasive ongoing impacts of the offender’s conduct. They collectively speak to the truly terrible consequences of the invasion of and interference with the sanctity of their private spaces. Their fears during the course of and subsequent to the offending were laid bare for the Court to consider. Those fears reflect the gravity of the offending and are completely unsurprising in the context of the conduct engaged in by the offender and his co-offenders. The reflections from the victims powerfully and articulately express the practical, physical and psychological impact of this conduct upon their lives. Recognition of harm is a significant feature of this sentencing exercise.

Cancellation of the ICO

127․As part of these proceedings, I must deal with the outcome of the breach of the ICO and the SSO.
128․The terms of the Crimes (Sentence Administration) Act 2005 (ACT) (Crimes (SA) Act) require a sentencing court, if an offender is subject to an ICO and is convicted or found guilty of an offence punishable by imprisonment, to cancel an ICO unless cancellation is not in the interests of justice: s 65(1) and (2). If the sentencing court cancels the ICO it must order that the remainder of the offender’s sentence be served by full-time detention: s 65(2)(b) Crimes (SA) Act.
129․There were no submissions advanced by the offender that would provide a basis to determine that cancellation is not in the interests of justice. Indeed, in this case, the nature, circumstances and timing of the offender’s conduct reveal a level of contempt by the offender for the opportunities extended to him to remain in the community while subject to periods of imprisonment. It could not have been any clearer to the offender the tightrope he was walking in relation to his liberty and still his offending persisted. Indeed, messages between the offender and co-offender relied on by the prosecution in relation to the offence in Series 1 reveal the offender was very much aware of the ICO.
130․I must cancel the ICO. It is to expire on 23 June 2024. The remainder of the sentence therefore is to be served in full-time custody. I will address the structure of the sentence below.

Breach of suspended sentence orders

131․The Court dealt with two offences when the offender was sentenced on 12 July 2022. The intention of Elkaim J is clear in that a total period of 15 months’ imprisonment was immediately suspended, the periods imposed for each offence being entirely concurrent. A review of the court record reveals that, based on those orders, only one suspended sentence order was produced containing reference to both offences. The Crimes (SA) Act does not provide for what might be referred to as a global sentence: see Burge v McCarron, Vincent and Tanner [2011] ACTSC 87. In each case the offender was sentenced to a period of imprisonment and in each case that period was suspended on condition that the offender comply with an undertaking to be of good behaviour for a period of 15 months. That is the basis upon which I intend to deal with this aspect of the sentencing proceedings. That is, the effect of his Honour’s orders was the imposition of two suspended sentence orders. By virtue of the conduct engaged in by the offender for Counts 20, 26, 27 and 29, he is in breach of those suspended sentence orders.
132․Section 110 of the Crimes (SA) Act dictates that, upon being satisfied that a SSO has been breached, the Court must cancel the GBO and either—
(a)impose the suspended sentence imposed for the offence; or
(b)re-sentence the offender for the offence.

133․In this jurisdiction there is no presumption in favour of the imposition of a sentence that was suspended: Guy v Anderson [2013] ACTSC 5 at [83]-[87]; R v BC [2020] ACTSC 308 at [35]. It is recognised, however, that a failure of courts to act where there has been a clear breach of the bond by which the offender avoided being subjected to full-time imprisonment is likely to bring suspended sentences into disrespect: Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379 at [23] cited in The Queen v PM (No 2) [2015] ACTSC 358 at [19] and Saga v Reid [2010] ACTSC 59 at [99]-[101].
134․In R v Kelly (No 2) [2021] ACTSC 253 (Kelly) at [15], the factors relevant to the consideration of whether to impose the suspended sentence or re-sentence were identified as follows:
(a)the proportion of the GBO served before the breach occurred;
(b)any rehabilitation attained prior to the breaching conduct;
(c)the prospects of further rehabilitation;
(d)the relative seriousness of the offence, or offences, causing the breach and whether the imposition of the suspended sentence would be disproportionate to the gravity of the breach offending;
(e)the nature of the offence or offences which breached the order, including whether it is of similar conduct;
(f)the actual facts of the matter for which the offender was first sentenced;
(g)whether the breach evinces an intention to disregard the obligation to be of good behaviour or to abandon any intention to be of good behaviour;
(h)whether the offender has received any warnings with respect to the breaches;
(i)the level of understanding of the offender of his obligations under the terms of the order and the consequences of a breach;
(j)the nature of judicial and community resources previously devoted to the offender.

135․I have been provided with a copy of the statement of facts for those matters and have had regard to the description and assessment of them in the sentencing remarks when they were originally dealt with by this Court. I note the description of the offence of aggravated robbery (joint commission) as having “significant objective seriousness” with the offender assessed as having a lesser role compared with the other co-offenders, on the basis that he was not directly responsible for the physical violence that formed part of the offending. The ride in stolen motor vehicle offence was determined to be of “relatively low objective seriousness”. The sentencing remarks reveal Elkaim J, in circumstances where he was dealing with the offender for breaching orders previously made by Murrell CJ, was placing considerable weight on an outcome that would promote the rehabilitation of the offender in recognition of his youth and the impact of his use of illicit substances: see R v CR (No 3) [2022] ACTSC 170; R v QH; R v CR [2020] ACTSC 178. The offender that very day committed further, similar offences.
136․Based on the circumstances known to this Court and applying the factors in Kelly, including the nature, circumstances and timing of the breaching conduct, as well as my view that the conduct demonstrates clearly the offender’s intention to ignore his obligation to be of good behaviour, the only appropriate outcome in relation to the breach of the SSO is the imposition of the sentence. No submission was advanced to the contrary. In this case, a period of 15 months’ imprisonment stands to be imposed. I will address the structure of the sentence below.

Sentencing practice

137․The use of sentencing statistics and comparable sentences must be put in its proper place. They illustrate, not define, the possible range of sentences available: R v Pham (2015) 256 CLR 550 at 560 [29]. Sentencing practice does not cap the upper nor lower ranges of a possible sentence: Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [51]-[53]. The provision of comparative cases is not to give effect to strict mathematical equivalence as between sentencing outcomes for the same offence, but rather to ensure consistency in the application of relevant principles. The range demonstrated by past sentences does not “fix the boundaries within which future judges must, or even ought, to sentence”: Hili v The Queen [2010] HCA 45; 242 CLR 520 at [54].
138․The Court of Appeal noted in Barrett v The Queen [2016] ACTCA 38 (Barrett) at [40] that most sentences recorded in the ACT sentencing database for aggravated robbery following a plea of guilty were in the range of 30 months to four years’ imprisonment. In R v Lovelock [2014] ACTSC 229 (Lovelock) at [13] Murrell CJ, considering current sentencing practice in the ACT Supreme Court, observed that a common sentence for aggravated robbery was three years’ imprisonment. In each case, the Court was referring to the length of sentences after the application of a discount for a plea of guilty
139․I was provided with a table by the prosecutor after the sentencing hearing identifying 10 sentencing outcomes from this Court variously relating to aggravated robbery, aggravated burglary, arson, theft and take motor vehicle without authority: R v Hutchinson [2014] ACTCA 29; R v Lockwood [2018] ACTSC 288; R v Hodge [2019] ACTSC 15; R v Hawkins [2020] ACTSC 29; Apps v The Queen [2020] ACTCA 53; R v Lutze [2020] ACTSC 121; R v TX [2020] ACTSC 157; R v Evans; R v Reid [2020] ACTSC 169; R v Lau [2020] ACTSC 120; R v Sidaros (No 6) [2021] ACTSC 24 (Sidaros); R v King [2022] ACTSC 183.

140․I have had regard to the particular circumstances that attended to each matter and note that the outcome for the matters involving the offence of aggravated robbery is consistent with the observations in Barrett and Lovelock. The matters involving the offence of aggravated burglary following a guilty plea are in the range of two years to 40 months’ imprisonment.
141․R v Krutsky [2013] ACTSC 297 involved an offender who aided, abetted, counselled or procured a robbery an offence with a maximum penalty of 14 years’ imprisonment. The offender’s role was critical to the offending Refshauge J describing her involvement in the offence as “a most important part of the offending” at [19]. The offender was not present when the offence occurred. The offender was found to have experienced a challenging childhood including being taken into care. She had a limited employment history and was a mother to one child. The offender was sentenced to two years’ imprisonment, wholly suspended for a period of 2 years.
142․R v Krutsky [2013] ACTSC 278 similarly involved an offender who aided, abetted, counselled or procured a robbery an offence with a maximum penalty of 14 years’ imprisonment. The offender, who was involved in the planning of the robbery, the identification of the victim and the way in which the robbery could be committed, was described as “instrumental” in the offence and was found to have “significant culpability” for the offence at [32]. The offender stood to and did benefit from the offence. She was not physically present when the offence occurred. The offender was a long-term drug user with a “very significant” criminal history and a long history of depression. The offender was sentenced to two years and six months’ imprisonment with a non-parole period of 18 months.
143․In Sidaros, the offender was sentenced for aggravated burglary, arson and riding in a motor vehicle without consent. The aggravated burglary was committed in the company of three other co-offenders, with one carrying a handgun and the other carrying a shotgun. The offenders set petrol on fire, causing the patio and carport to ignite. The offenders then stole and drove a vehicle which was later found burnt out. The offender was relatively young, at 26 years old, and had a limited criminal history with minor driving offences. He was found to have shown no remorse and was of medium risk of re-offending. Justice Mossop sentenced the offender to three years’ imprisonment for the aggravated burglary, four years’ imprisonment for the arson and one year, six months for the ride in motor vehicle without consent. This resulted in a head sentence of nine years and six months’ imprisonment with a non-parole period of five years, six months.
144․I have also had regard to R v Dawson [2022] ACTSC 64 (Dawson) and R v Hall (No 2) [2020] ACTSC 63 (Hall).
145․In Dawson, McWilliam AJ (as her Honour then was) sentenced the offender on four counts of attempted aggravated burglary, one count of burglary, two counts of aggravated burglary, two counts of theft and one count of dishonestly riding in a motor vehicle without consent. Some of the offences were committed by the offender alone, others with the assistance of his co-offender, while additional offences were committed in the company of either one or two co-offenders. The offending involved multiple attempts to enter residential homes and could be characterised “crime sprees” concentrated in particular areas, on one occasion along the same street. The stolen items were of value including a vehicle, car keys, electronics and a handbag. The offender had an extensive criminal history and was on parole at the time of offending. Acting Justice McWilliam considered the consistent pattern of the offender’s drug use meant the weight given to this history may be reduced. The subjective circumstances of the offender featured “ongoing institutionalisation, unstable living circumstances and substance abuse”: at [46]. A discount of 20 percent was allowed for the pleas of guilty. The offender was sentenced to six months’ imprisonment on each of the attempted burglaries, eight months’ imprisonment for the burglary, four months’ imprisonment for damaging property, 12 months’ imprisonment each for the aggravated burglary, nine months each for the theft and six months’ imprisonment for dishonesty riding a motor vehicle without consent. This resulted in a total sentence of three years and eight months with a non-parole period of 18 months.
146․In Hall, Elkaim J sentenced the offender for various burglary and dishonestly driving motor vehicle offences committed on two separate days, in the company of two other people. The offender was 24 years old at the time of offending and was of Aboriginal descent. He experienced abuse growing up and had significant illicit substance abuse issues. He had mental health problems including schizophrenia and had experienced psychosis. Justice Elkaim considered the Bugmy principles were engaged due to his disadvantaged background and the impact of this on his current drug use issues. He had a significant criminal history with similar offending, but due to his youth rehabilitation was still a prominent sentencing consideration. His Honour considered a discount of 20 percent was appropriate. The offender received the following sentences: on the count of attempted burglary, 10 months’ imprisonment; on the count of aggravated burglary with intent to steal, 12 months’ imprisonment; on the count of burglary with intent to steal, 12 months’ imprisonment; on the two counts of dishonestly drive a motor vehicle without consent three and two months’ imprisonment respectively; on the count of dishonestly take a motor vehicle without consent, two months’ imprisonment; on the count of attempt to take motor vehicle without consent, two months’ imprisonment; on the two counts of theft, two months’ imprisonment on each count; and on the count of assault occasioning actual bodily harm, 19 months’ imprisonment. This resulted in a total period of imprisonment of three years and five months and a non-parole period of 22 months.

Determination

147․I sentence the offender against the background of the objects of the Crimes (Sentencing) Act contained in ss 6 and 7. I must, of course, in the instinctive synthesis that underpins the sentencing task, respect the principal of individualised justice while ensuring that the punishment I impose is adequate, just and appropriate in all of the circumstances.
148․There is a strong need for specific deterrence to feature as a prominent purpose given the casual disregard the offender has displayed towards repeated opportunities to address the factors in his life contributing to his offending conduct and his continued offending. I consider general deterrence, denunciation, punishment and recognition of harm to be considerations of particular significance. The only appropriate outcome for each offence, considering possible alternatives, is a period of imprisonment: s 10 Crimes (Sentencing) Act. The offender’s depressingly consistent history of non-compliance is a sound basis to reject alternatives to full-time imprisonment such as an ICO or suspended periods of imprisonment. No submission was made to the contrary.
149․Sentencing for multiple offences, as the Court is required to do here, is complex. A number of the relevant principles were described by the Court of Appeal in O’Brien v The Queen [2015] ACTCA 47 (O’Brien) at [26] (citations omitted):
(a)When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality.
(b)The principle of totality requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences.
(c)A countervailing factor is the need to ensure that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences. The Court must avoid any suggestion that what is being offered is a discount for multiple offending.
(d)Offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent.

150․Section 33(1)(c) of the Crimes (Sentencing) Act requires the sentencing court to consider whether the offences form part of a course of conduct consisting of a series of criminal acts of the same or similar character.
151․The Court of Appeal in R v White [2023] ACTCA 35 (White) considered this issue explaining at [58]:
Section 33(1)(c) of the Sentencing Act requires consideration of whether the offences form part of a course of conduct consisting of a series of criminal acts of the same or a similar character. Section 33(1)(c) recognises the “course of conduct” or “one transaction” principle, described by Owen JA in Royer v The State of Western Australia [2009] WASCA 139 at [22]:
At its heart, the one transaction principle recognises that, where there is an interrelationship between the legal and factual elements of two or more offences with which an offender has been charged, care needs to be taken so that the offender is not punished twice (or more often) for what is essentially the same criminality. The interrelationship may be legal, in the sense that it arises from the elements of the crimes. It may also be factual, because of a temporal or geographical link or the presence of other circumstances compelling the conclusion that the crimes arise out of substantially the same act, omission or occurrences.

152․The Court of Appeal went on a [62] to cite R v Jarrold [2010] NSWCCA 69 at [56] per Howie J where it was observed that the course of conduct principle does not automatically require concurrency of sentences (citation omitted):
… [S]entences are not to be made concurrent simply because of the similarity of the conduct or because it may be seen as part of the one course of criminal conduct. The question to be asked is, can the sentence for one offence encompass the criminality of all the offences?
153․I have during the course of these remarks described the collection of offences as a “spree”, the offending having occurred between 1 July and 19 July 2022. I bear in mind that the Court in White were of the view at [67] that significant concurrency between offences similarly described as a “spree” (the spree period being three days) to the extent set out at [63] combined with leniency applied to the length of some of the sentences failed to adequately recognise that the offender’s conduct involved the commission of offences against separate victims. This approach, the Court determined, meant the outcome did not reflect the overall criminality involved and was “manifestly inadequate”. I am mindful of that guidance and mindful that while the description of the offences as a “spree” is intended to convey the short period of time over which they occurred, these are nonetheless matters that occurred over a period of almost 20 days.
154․In Nguyen v The Queen [2016] HCA 17; 256 CLR 656, Gageler, Nettle and Gordon JJ observed at [64]:
Ultimately the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences. That is an exercise which involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case. Up to a point, therefore, it is something about which sentencing judges might take different views of which neither could be said to be wrong. Generally speaking, however, the imposition of less severe individual sentences may call for a greater degree of accumulation in· order to reflect total criminality whereas more severe individual sentences may necessitate a greater degree of concurrency.
155․ In R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32, the Court of Appeal at [92] considered a number of principles relevant to determining the degree accumulation or concurrency of multiple sentences observing:
There is no single correct approach to the structuring of multiple sentences, and the totality principle can be implemented in a variety of acceptable ways: Le Clair v The Queen; Achanfuo-Yeboah v The Queen [2017] ACTCA 19, at [56]. In determining questions of accumulation or concurrence, his Honour was required to look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: Mill v The Queen (1988) 166 CLR 59. A sentence should not be ‘crushing’ in that it induces a sense of hopelessness and destroys prospects of rehabilitation, or too severe as a result or accumulation (noting the severity of a sentence may increase at a greater rate than the increase in its length) R v MAK, R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [16]-[17]. Against these considerations, a sentence should not lead to a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences, or that an offender is being offered a discount for multiple offending: O’Brien v The Queen [2015] ACTCA 47 at [26]. Making two counts wholly concurrent may reveal error in that to do so fails to take account of the differences in the conduct which were the subject of punishment on each count: Pearce v The Queen [1998] HCA 57; 194 CLR 610 at [49].
156․The offender is to be sentenced for seven separate incidents, involving at least six separate victims. The sentence imposed must recognise the separate nature of the offending and avoid any suggestion that multiple offending will result in a discounted outcome. I consider that entire concurrency is warranted in relation to the conduct engaged in as part of the same incident so as to avoid a crushing sentence, noting the offender’s youth and the observations I have made at [104] in relation to his prospects for rehabilitation. There is no basis for there to be entire concurrence between the remaining ICO period, the suspended period of imprisonment and the separate incidents.
157․The offender is now 20 years of age. He was not a “young offender” for the purposes of Chapter 8A of the Crimes (Sentencing) Act, not being under the age of 18 years of age when the offences were committed. He is, nonetheless, still a young man and this is a relevant factor: R v TL [2017] ACTCA 18. The weight to be given to the youth of an offender does not vary with the seriousness of the offence: R v Hearne [2001] NSWCCA 37; 124 A Crim R 451.
158․The law recognises that allowances should be made for an offender’s youth by reference not just to their biological age: see MT v The Queen [2021] ACTCA 26 at [41] where the following passage from KT v R [2008] NSWCCA 51; 182 A Crim R 571 at [23] was cited with approval:
The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender’s youth and not just their biological age. (R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender’s youth does not vary depending upon the seriousness of the offence (Hearne at [24]). Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult. (Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61]).
159․The offending conduct is overall largely unsophisticated. As I have already identified, it is attended to by a degree of immaturity related to his youth and perhaps associated to that, an enthusiasm for engaging in high-risk behaviour. It is, in many respects, rather senseless offending because as the prosecutor pointed out the vehicles stolen were not used for any particular purpose, financial or otherwise, other than to facilitate more offending. It is offending that the community must be protected from and demands an outcome that appropriately reflects the grave seriousness of some of the offences.
160․As the Court of Appeal indicated in The Queen v Miller [2019] ACTCA 25at [37], an offender’s subjective features, while important, cannot justify the imposition of a sentence that does not adequately reflect the objective seriousness of the offending behaviour. The youth of the offender is a compelling factor; the community has a clear interest in an outcome that promotes rehabilitation. On the other hand, the serious nature and scope of the offending requires an outcome that properly takes account of the purposes of sentencing which includes punishment and accountability.
161․The offender does not present with any significant mental health issues or any ongoing trauma arising from a dysfunctional or disadvantaged childhood. The absence of these factors strengthens my view that with the right supports in relation to his use of illicit substances, the development of more mature attitudes towards offending and peer relationships as well the maintenance of aspiration for employment, the offender’s prospects of rehabilitation could be strongly enhanced. On the material before me there is no explanation for why, despite the offender’s persistent engagement with youth justice, he has not ever had access to substantial intervention in relation to drug use. This is a factor that the offender can now attend to as an adult in custody, if he wishes to present himself to the parole authorities as a strong candidate for release into the community.
162․In addition to determining the relationship between the offences the offender is to be sentenced for, I must also determine how best to structure the sentences with the remaining period to be served arising from the cancellation of the ICO and the imposition of the periods of imprisonment previously suspended. I consider that the time the offender has spent in custody since July 2022 is appropriately attributed to the ICO.
163․ I must set a non-parole period, taking into account the existing sentence (the ICO period) and the additional sentences imposed. I consider that it is appropriate that any non-parole period begin on the day the ICO commenced. I note this is the approach adopted by Mossop J in R v Sullivan (No 2) [2020] ACTSC 215 when an ICO was cancelled as part of sentence proceedings for fresh offending. I adopted this approach in DPP v Crawford (a pseudonym) [2023] ACTSC 266. I have carefully considered the start date for the Series 1 and Series 2 offences to ensure that the offender does not unduly benefit from the commission of multiple offences while he was subject to period of imprisonment being served in the community and to ensure that the overall outcome is just and appropriate reflecting the total criminality involved.

164․The relevant principles in relation to non-parole periods have been discussed in Henry v The Queen [2019] ACTCA 5 at [33]-[37], Taylor v The Queen [2014] ACTCA 9 at [19], and O’Brien. I have had regard to those principles. Nominating a non-parole period involves a consideration of the sentencing purposes contained in s 7 Crimes (Sentencing) Act. The non-parole period is imposed because justice requires that the offender serve that period in custody: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [57]. It is the minimum period of actual incarceration that an offender must spend in full-time custody having regard to the objective seriousness of the offending, the offender’s subjective circumstances and the purposes of sentencing including punishment and rehabilitation.
165․An offender’s prospects for rehabilitation are an important factor in determining a non-parole period. Those prospects can make a significant difference to the non-parole period and are relevant to an assessment of what is required to protect the community. In my view the offender’s youth, his persistent engagement with the criminal justice system, his history of poor compliance, a prolonged period in a custodial environment and the desirability of supporting his rehabilitation demand a period of lengthy parole supervision when he returns to the community. This will allow the parole authorities to closely monitor his conduct, including his use of illicit substances, for a significant period of time and assist the offender to adjust to life outside of a custodial setting. This is in the offender’s interest and the public interest. I consider a non-parole period of around 50 percent to be appropriate in all of the circumstances.

Orders

166․The orders I make are:
(1)The Intensive Correction Order imposed on charge CC21/12210 for the offence of intentionally wound, commencing on 24 June 2022 and expiring on 23 June 2024, is cancelled. I direct that the remainder of the sentence be served in full-time detention commencing on 18 October 2023 and ending on 23 June 2024.

(2)The Good Behaviour Orders imposed by Elkaim J in relation to CC19/1116 for the offence of aggravated robbery by way of joint commission and CC19/1121 for the offence of dishonestly drive or ride motor vehicle without consent are cancelled.
a.For the charge of CC19/1116, I impose 15 months’ imprisonment, commencing on 24 October 2023 and ending on 23 January 2025;
b.For the charge of CC19/1121, I impose four months’ imprisonment, commencing on 24 October 2023 and ending on 23 February 2024. This period of imprisonment will be concurrent with the period imposed on CC19/1116.

167․I impose convictions in relation to all the remaining offences:
(3)For the offence of aid, abet, counsel or procure aggravated robbery (SCCAN2023/92), the offender is sentenced to 19 months’ imprisonment, reduced from 24 months for his plea of guilty, commencing on 24 March 2024 and ending on 23 October 2025.
(4)For the offence of dishonestly drive or ride motor vehicle without consent (CC2022/8437), the offender is sentenced to five months’ imprisonment, reduced from six months for his plea of guilty, to commence on 24 July 2025 and end on 23 December 2025.
(5)For the offence of burglary by way of joint commission (SCCAN2023/47), the offender is sentenced to 12 months’ imprisonment, reduced from 15 months for his plea of guilty, to commence on 24 June 2025 and end on 23 June 2026.
(6)For the offence of theft by way of joint commission (CC2022/8840), the offender is sentenced to eight months’ imprisonment, reduced from 10 months for his plea of guilty, to commence on 24 June 2025 and end on 23 February 2026.
(7)For the offence of dishonestly drive or ride motor vehicle without consent (CC2022/8443), the offender is sentenced to five months’ imprisonment, reduced from six for his plea of guilty, to commence on 24 June 2025 and end on 23 November 2025.
(8)For the offence of burglary by way of joint commission (SCCAN2023/48) (taking into account the two theft offences and an offence of dishonestly drive or ride motor vehicle without consent), the offender is sentenced to 14 months’ imprisonment, reduced from 18 months for his plea of guilty, to commence on 24 November 2025 and end on 23 January 2027.
(9)For the offence of knowingly concerned in commission of the offence of arson (CC2022/9543), the offender is sentenced to nine months’ imprisonment, reduced from 12 months for his plea of guilty, to commence on 24 September 2026 and end on 23 June 2027.
(10)For the offence of aggravated burglary by way of joint commission (CC2022/8450), the offender is sentenced to 28 months’ imprisonment, reduced from 36 months for his plea of guilty, to commence on 24 March 2026 and to end on 23 July 2028.
(11)For the offence of aggravated robbery by way of joint commission (CC2022/8452), the offender is sentenced to 38 months’ imprisonment, reduced from 48 months for the plea of guilty, to commence on 24 March 2026 and end on 23 May 2029.
(12)For the offence of dishonestly drive or ride motor vehicle without consent (CC2022/8454), the offender is sentenced to five months’ imprisonment, reduced from six months for his plea of guilty, to commence on 24 March 2026 and end on 23 August 2026.
(13)For the offence of burglary by way of joint commission (SCCAN2023/51), the offender is sentenced to 12 months’ imprisonment, reduced from 15 months for his plea of guilty, to commence on 24 November 2028 and end on 23 November 2029.
(14)For the offence of theft by way of joint commission (CC2022/8459), the offender is sentenced to eight months’ imprisonment, reduced from 10 months for his plea of guilty, to commence on 24 November 2028 and end on 23 July 2029.
(15)For the offence of dishonestly drive or ride motor vehicle without consent (CC2022/8602), the offender is sentenced to five months’ imprisonment, reduced from six months for his plea of guilty, to start on 24 November 2028 and end on 23 April 2029.
(16)The total sentence commencing today is six years, one month and six days. The non-parole period is to start on 24 June 2022 and end on 12 March 2026.

I certify that the preceding one hundred and sixty-seven [167] numbered paragraphs are a true copy of the Reasons for Sentence her Honour Justice Taylor

Associate:

Date: 18.10.2023