Director of Public Prosecutions v D'Alessandro (No 2)

[2025] ACTSC 275

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v D’Alessandro (No 2)

Citation: 

[2025] ACTSC 275

Hearing Date: 

30 June 2025

Decision Date: 

2 July 2025

Before:

Baker J

Decision: 

See [90]

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary by joint commission – theft by joint commission – drive motor vehicle without consent – theft by joint commission – two sequences of burglaries – young offender – application of Bugmy principles and parity principles – term of imprisonment imposed to be suspended after 12 months

Legislation Cited: 

Criminal Code 2002 (ACT), ss 308, 312, 318, 321

Crimes (Sentencing) Act 2005 (ACT), s 33(1)(c), 33(1)(j), 33(1)(za), 57

Cases Cited: 

Apulu v The King [2022] NSWCCA 244

Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428

DPP v CR [2023] ACTSC 293

DPP v DB (a pseudonym) [2023] ACTSC 294

DPP v Lock (a pseudonym) [2025] ACTSC 231

Green v The Queen; Quinn v The Queen [2011] HCA 27; 244 CLR 462

Hili v R [2010] HCA 45; 242 CLR 520

Lowe v The Queen [1984] HCA 46; 154 CLR 606

O’Brien v The Queen [2015] ACTCA 47

Sarhene v The Queen [2022] NSWCCA 79

Saipani v The Queen [2021] ACTCA 5

R v AEM [2002] NSWCCA 58

R v Boney [2001] NSWCCA 432

R v BS-X [2021] ACTSC 160; 16 ACTLR 238

R v Campbell [2010] ACTCA 20

R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32

R v Colgan [1999] NSWCCA 292

R v Govinden [1999] NSWCCA 118; 106 A Crim R 314

R v Ho (Unreported, Court of Criminal Appeal of NSW, 28 February 1997)

R v Nicolas; R v Palmer [2019] ACTCA 36

R v Pham [2015] HCA 39; 256 CLR 550

R v White [2023] ACTCA 35

R v Wong [2003] NSWCCA 247

Parties: 

Director of Public Prosecutions ( Crown)

Brandon D’Alessandro ( Offender)

Representation: 

Counsel

E Knaggs ( Crown)

S Baker-Goldsmith ( Offender)

Solicitors

ACT Director of Public Prosecutions

Bevan & Co ( Offender)

File Numbers:

SCC 201 of 2023

SCC 50 of 2024

SCC 308 of 2024

SCC 309 of 2024

BAKER J:      

Introduction

1․The offender, Brandon D’Alessandro, has pleaded guilty to 24 counts of aggravated burglary by joint commission contrary to s 312 of the Criminal Code 2002 (ACT), 5 counts of theft by joint commission contrary to s 308 of the Criminal Code, one count of drive motor vehicle without consent contrary to s 318 of the Criminal Code and 13 counts of minor theft by joint commission contrary to s 321 of the Criminal Code.

2․The maximum penalty for aggravated burglary by joint commission is a fine of $320,000, 20 years imprisonment or both. The maximum penalty for theft by joint commission is a fine of $160,000, 10 years imprisonment or both. The maximum penalty for drive motor vehicle without consent is a fine of $80,000, 5 years imprisonment or both. The maximum penalty for minor theft by joint commission is a fine of $8,000, 6 months imprisonment or both.

Factual background

The offending

3․The offending encompasses two series of offences committed on two separate occasions, 2 January 2023 and 23 January 2023.

The first sequence of offending

4․The first sequence of offending involved conduct which occurred on 2 January 2023. Between 3:30am and 4:09am on 2 January 2023, the offender, along with five other co-offenders, travelled in two stolen cars (a Subaru and a Honda) to a number of shopping centres in the northern suburbs of the ACT. At each store, the co-offenders used a sledgehammer or an axe to smash glass doors or glass panelling next to doors in order to enter.

5․Throughout the offending, the offender was the driver of the Subaru. The offender did not get out of the Subaru for most of the offending and was only captured on CCTV footage assisting to kick a shattered glass front door panel.

6․At 3:30am, the offender along with the co-offenders arrived at the Crace shops. The co-offenders broke the glass panel next to the front door of The District Bar and Café, and entered (Count 1) stole several bottles of alcohol valued at $800 (Count 2). Shortly after, the co-offenders smashed the glass door of the Capital Chemist, looked behind the front till area, and left the store shortly after (Count 3).

7․At 3:38am, the offender and co-offenders arrived at the Palmerston Shops. The co-offenders smashed the front door of Palmerston Takeaway (Count 4) and stole a Cash Register and soft drinks, to the value of $350 (Count 5). The co-offenders then used the sledge-hammer to enter Hair Journey Palmerston, but left shortly after an alarm sounded (Count 6).

8․At 3:44am, the offender and the co-offenders arrived at the Nicholls Shops. The co-offenders got out of the cars and used an axe to smash the glass doors of Precinct Pasta (Count 7), Cucina Pizza (Count 8) and Sibu Beauty (Count 9) to gain entry to the shops, before returning to the vehicles and speeding away.

9․At 3:52am, the two vehicles arrived at Casey Shops. One co-offender used an axe to break the glass front door of Subway and entered (Count 10), and stole two trays of Subway cookies, valued at $250 (Count 11). Other co-offenders used an axe and engaged in kicking to break the glass front door of the shop the Spice Affair (Count 12). The co-offenders stole a cash register and an iPad to the total value of $2,200 (Count 13).

10․At 3:55am, another co-offender used a sledgehammer to break the glass door of Lokma Turkish Cuisine before entering (Count 14) and stealing a cash register to the value of $545 (Count 15). Three co-offenders worked together to use an axe to break the glass front door of Domino’s Casey, before entering (Count 16), inspecting the open and empty till, and stealing a set of keys valued at $50 (Count 17).

11․At the same time, four co-offenders worked together to use an axe to break the glass door of Casey Jones and enter that store (Count 18). The co-offenders stole three cash registers to the value of $495 (Count 19).

12․At 3:59am, two co-offenders used an axe to break the glass front door of Stuffed and entered the store (Count 20). They stole a tip jar and drink to the value of approximately $105 (Count 21).

13․At the same time, two co-offenders used the sledgehammer to break the glass front door of Southern Seoul, entered (Count 22), and stole the cash register with cash to the value of $800 (Count 23).

14․At some point during the offending, at least one co-offender smashed the front door of Hot Wok Casey before entering (Count 24) and stealing a mobile telephone valued at $200 (Count 25).

15․At 3:59am, the offender approached the glass front door of Coffee Guru, which had already been smashed by two other co-offenders, and kicked it. The offender then returned to the Subaru while another co-offender broke the remainder of the glass door, checked the tills inside and exited (Count 26).

16․The co-offenders then travelled to Federation Square in Nicholls. At 4:05am, three co-offenders used an axe to break the front door of Salu-Salo Café Bar and Restaurant (Count 27) and stole a cash register and pay pass reader to the value of $214 (Count 28). At the same time, another co-offender smashed the glass front door of Gold Creek Café, entered the café (Count 29), and proceeded to steal a cash register and printer to the total value of $550 (Count 30).

17․Shortly after, two co-offenders entered the Lolly Shop by smashing the glass front door with an axe. They entered (Count 31) and stole a cash register containing cash, along with a container of coins to the value of $807.33 (Count 32).

18․The offender and co-offenders were seen by Police shortly after this burglary. The offender initially denied participation in the offending. He later was arrested on 10 May 2023 and taken into custody, until his release on bail on 29 September 2023.

19․The offender pleaded guilty following a criminal case conference on 5 February 2024. On 28 February 2024 the offender was arraigned and pleaded guilty to each of the above charges.

20․The offender was also charged with an additional offence of dishonestly driving a motor vehicle without consent, which encompasses the driving of the Subaru throughout the above offending. At the request of the parties, this offence will be taken into account when sentencing for the offence of aggravated burglary: s 57 of the Crimes (Sentencing) Act 2005 (ACT); R v Campbell [2010] ACTCA 20 at [46] – [50].

The second sequence of offending

21․The second sequence of offending concerned events which occurred on 23 January 2023. At 2:08am, the offender arrived at the carpark at Scullin Place driving a BMW, suspected to be stolen (CC2024/3064: dishonestly drive motor vehicle without consent).

22․A co-offender got out of the passenger side of the vehicle. The co-offender removed an axe from the trunk of the car, before walking towards the front door of La Cassetta Pizzeria. The offender swung the axe at the front glass door multiple times. The co-offender then stepped forward and proceeded to kick the glass door an in attempt to gain entry. The offender and co-offender entered the store but did not steal any items. The damage to the store totalled $450 (CC2024/3055: aggravated burglary).

23․At 2:11am, the offender swung the axe at the glass doors of Sweet Bones Café. He lost control and threw the axe inside the store, breaking the glass doors (CC2024/3056). The offender and the co-offender stole an EFTPOS Machine, a cash float of approximately $350, an Apple iPhone and a cash drawer. The total cost of these items, and the damage to the store, was $2,247.38 (CC2024/3060: aggravated burglary).

24․Shortly after, the co-offender swung the axe ten times at the glass front entrance of Sue’s Kitchen, and stepped inside (CC2024/3057). The co-offender and the offender then stole a tip jar containing $10 and a gold decorative ornamental statue (CC2024/3061: aggravated burglary).

25․The offender and co-offender then drove to the Hawker Bakery in Hawker. The co-offender swung the axe seven times, breaking the glass front door, and then entered, while the offender repositioned the car (CC2024/3058). The co-offender took an unknown food item (CC2024/3062). The owner of the bakery has confirmed that damages were estimated to be between $4,500 and $5,000.

26․At around 3:01am, the offender arrived at Best Haircut Barber holding an axe (CC2024/3959). CCTV footage captured the offender searching the store and removing a mobile telephone, before suddenly fleeing (CC2024/3063). The damage to the front door of the store was has been assessed to be $612.40.

27․The offender was also charged with an additional charge of driving while disqualified as a repeat offender, which encompasses the driving of the BMW throughout the above offending (CC2024/3065). The parties requested that this offence be taken into account when sentencing for the offence of dishonestly a driving motor vehicle without consent: s 57 of the Crimes (Sentencing) Act; R v Campbell [2010] ACTCA 20 at [46] – [50].

28․Police observed the BMW shortly after, and activated their lights and sirens. The BMW did not stop.

29․The BMW was located on 25 January 2023. The offender was charged on 6 March 2023and was granted bail the following day.

30․The offender pleaded guilty to these charges in the ACT Magistrates Court on 5 September 2024.

The offender’s subjective case

Sources

31․The Court received a report of Ms Morris, forensic psychologist. Ms Morris and the offender also gave evidence in the sentence proceedings.

32․The Court also received character references in support of the offender from the offender’s partner,[1] mother, brother, and a friend who had offered the offender a job in their demolition business.

[1]I was informed that this reference was drafted with the assistance of an Artificial Intelligence Program. The author of the reference was in Court for the sentence and confirmed that the reference represents her true views about the offender. In these circumstances, I have accepted the reference that was provided.

The offender’s upbringing

33․The offender is the fourth of eight children, the two eldest of whom are his half siblings.

34․The offender’s parents separated when he was seven years old. Half of the children moved to Canberra and the other half remained in Queensland. The offender was subject to physical abuse by his father, who also abused alcohol.

35․It appears that there was later a reconciliation between the offender’s parents. The offender told Ms Morris his  father was due to move back with his mother, but tragically died in a car accident about a week before this occurred.

36․The offender was only 12 years old when his father died. He took the news “really poorly”. He explained that he started “doing crimes so I didn’t think of it”.

37․The offender was sexually abused by a drug dealer when he was between 14 and 15 years old. He reported the crime, but it did not proceed to court.

Present circumstances

38․The offender gave evidence at the sentence hearing that “everything’s changed” in his life since engaging in the offending. He now holds full-time employment as a car dismantler. He is also an expectant father. His baby is due in September or October of this year. The offender’s partner told the Court in her character reference about the support she has been receiving from the offender in her pregnancy. She told the Court that she depends on the offender both emotionally and financially. [character ref] In his evidence, the offender expressed his joy upon first seeing the scans of his unborn child, and explained that expecting a child has made him realise that “something’s got to give”.

39․Each of the character referees spoke of the offender’s character. His employer described him as “fiercely loyal to those he loves”; reliable and genuinely caring. He commented that these are commendable traits for such a young man, particularly when coupled with the limited role models that the offender has had. The offender’s mother spoke about the offender’s resilience to the significant challenges that he has faced in his life, and the offender’s desire to be a positive role model for his siblings. The offender’s partner likewise spoke about the offender’s compassion and generosity and the way in which he genuinely goes out of his way to help others, such as servicing an elderly neighbour’s car free of charge. The offender’s brother spoke of the offender’s commitment to positive change, following these offences.

Drug use

40․The offender started using marijuana when he was 12 years old (around the time of his father’s death). He moved on to smoking cocaine and ice when he was 14 years old.

41․The offender was released from custody to attend a three month drug rehabilitation program in 2023. He reported that he has had only one relapse since that time. It appears that this relapse did give rise to further offending (see further below).

Mental health

42․The offender’s father was diagnosed with bipolar disorder. There is an extensive presence of neurodiversity and serious psychological conditions in the offender’s family.

43․The offender reported to Ms Morris that he experiences intrusive memories of his father that are both “good and bad”. The offender engaged in drugs and crime to avoid his grief and his distressing memories. Ms Morris assessed the offender as meeting the criteria for Complex Post Traumatic Stress Disorder and Stimulant Use Disorder, Amphetamine-Type Substance, Severe, in sustained remission. Ms Morris also considered that the offender had untreated neurodivergence which has resulted in “evident lapses in his executive function”. Intensive Correction Order Assessment Report provided by ACT Health also reports that the offender has reported a history of self-harm and suicidal ideation following the death of his father.

Criminal history

44․The offender has a lengthy criminal history across multiple jurisdictions [redacted]. The offender’s criminal history includes offences of aggravated burglary, theft, minor theft, driving while disqualified, and riding or driving in a motor vehicle without consent, committed in both the Australian Capital Territory and in New South Wales.

45․Since the commission of the present offences, the offender has pleaded guilty to the following offences committed in the ACT on 3 November 2024:

(a)Using a number plate not issued for the vehicle (CC2024/11132);

(b)Driving uninsured motor vehicle (CC2024/11131);

(c)Driving a suspended or unregistered vehicle (CC2024/11130); and

(d)Driving unlicensed (CC2024/11129).

46․On 15 November 2024, the offender was convicted of these offences in the ACT Magistrates Court and was released immediately upon entry into a good behaviour order for 18 months.

47․The offender was also charged with further offences in New South Wales, committed on 3 February 2025, and sentenced as follows on 4 February 2025:

(a)Fail to comply with order/notice/direction – fine of $500;

(b)Drive recklessly/furiously or speed in a dangerous manner – fine of $1000, 2-year community correction order and 3-year licence disqualification; and

(c)Drive never licenced – fine of $500.

48․In his evidence, the offender explained that the above offences were “stupid slip-ups”. In relation to the offending on 3 November 2024 in the ACT, the offender explained that he had driven a car to a petrol station, where he was stopped by police and arrested. In relation to the offending on 3 February 2025 in New South Wales, the offender explained that he was driving a car that he had been fixing up to sell to a friend’s property. During this journey, the offender was stopped by police and arrested.  Concerningly, this offence was committed days before the offender was due to be sentenced for the present offending. [bench sheet 6 Feb 2025]

Sentencing considerations

Objective seriousness

49․The following matters are relevant to the objective seriousness of the aggravated burglary offences:

(i)The burgled premises were commercial. Although less serious than burglaries of residential premises, many of the premises were owned by small business owners, each of whom suffered considerable damage to their businesses;

(ii)The offenders used an axe to gain entry to each premises. In the first series of offences an axe and a sledgehammer were used; in the second series of offences an axe was used. The use of those weapons occasioned considerable damage to the premises;

(iii)Multiple offenders entered most premises, although I will be careful not to double count the matter of aggravation in this respect;

(iv)The motivation for each burglary was greed: to obtain cash and items for personal gain;

(v)Although the offending was unsophisticated, there was a degree of premeditation for each series of offences, as demonstrated by the organised use of vehicles and axes to access multiple shopfronts within a very short period of time;

(vi)The offences occurred in the early hours of the morning, when there was no likelihood of staff or patrons being present. No persons were in fact in present, and no physical harm was occasioned to any person.

50․The offender was the getaway driver for the first series of offences. Although he did not physically wield the axe, the offender must have been aware of the use of the axe and the sledgehammer for the first series of offences. In relation to the second series of offences, the offender physically wielded the axe and caused considerable damage to the premises. I find that the offender’s role was slightly more serious for the second set of offences in comparison to the first for this reason.

51․Generally speaking, the objective seriousness of the charges of theft and minor theft will be affected by the value of the items stolen. However, for the first series of offences, the offender was the getaway driver, and did not physically take the property. His involvement was in a joint criminal enterprise where the agreement was that items would be stolen. In these circumstances, I do not consider there to be a significant difference in the objective seriousness of each of the thefts and minor thefts for the first series of offences, although there are different maximum penalties for those offences.  In respect of the second series of offences, the theft of the Eftpos machine, iPhone and cash drawer are more serious, as the offender was physically present when those items were taken.

52․The offender committed all of the offences whilst subject to a good behaviour order [redacted]. As the prosecutor submitted, whilst this matter does not increase the objective seriousness of the offending, it is an aggravating circumstance on sentence which heightens the need for weight to be given to specific and general deterrence.

Moral culpability

53․As outlined above, the offender experienced multiple traumas as a young child. He suffers from Post Traumatic Stress Disorder. He is neurodivergent. At the time of the offences, he was suffering from a Substance Use Disorder, having first started consuming drugs as a means of dealing with the grief and trauma that he was suffering following his father’s death.

54․The prosecution conceded that the offender’s background was such as to enliven Bugmy principles. This concession was properly made. The offender’s background is connected to his mental health issues, which in turn explains, to some degree, the offending conduct. I find that the offender’s moral culpability has been reduced as a result of these matters.

Remorse

55․The offender told Ms Morris that he wishes that he could apologise to the victims of the offending, but has been unable to do so, because he did not want to be seen to be doing anything that could be misinterpreted. The offender said that since the offending, he has made a point to “buy things from those businesses” and has “put money in the tip jars”. He said that he feels bad about what he did. He said that he does not know why he engaged in the offending, other than that he was on drugs at the time.

56․In his oral evidence, the offender confirmed that he regrets how his actions have “impacted the victims”. He acknowledged that the impact of his offending on the victims was “really not good” and that he “was a really shit person back then”. The character references provided by the offender’s partner, brother and friend also spoke of the offender’s considerable remorse for his offending.

57․I am satisfied that the offender is remorseful for his offending.

Risk of reoffending and prospects of rehabilitation

58․In her report, Ms Morris concluded that the offender was a low-to-medium risk of reoffending. At the time of writing that report, Ms Morris was not aware of the offender’s more recent reoffending.

59․In cross-examination, Ms Morris was informed about the offender’s more recent re-offending. After taking these matters into account, she considered that the offender’s risk “leans more towards a moderate than a low moderate” risk. Ms Morris explained that the offender’s risk of reoffending is largely impacted by his ADHD and the difficulty that comes with considering the consequences of his actions as a result of that neurological condition. Ms Morris accepted that the reoffending bears on the offender’s prospects of rehabilitation, although “not [by] a significant amount”.

60․I accept Ms Morris’ assessment of the offender’s risk of reoffending as moderate. I am satisfied that the offender is presently committed to his rehabilitation. With sufficient support, I consider that the offender’s prospects of rehabilitation to be reasonable.

Parity

61․The offending on 2 January 2023 was committed with five other offenders, two of whom were unknown, and three of whom were young persons at the time of the offending.

62․The known co-offenders were each dealt with by the Childrens Court. They received sentences of imprisonment ranging from 4 months’ imprisonment for each aggravated burglary, with overall terms ranging from 12 months’ imprisonment, suspended after 82 days (for 8 charges of aggravated burglary by joint commission) to 14 months’ and 1 day imprisonment, suspended after 10 months (for 19 charges of aggravated burglary, one charge of riding in a motor vehicle without consent, one charge of theft by joint commission and 12 charges of minor theft by joint commission, as well as for other unrelated charges).

63․Parity principles require that offenders who have engaged in like offending should, if other things are equal, receive the same sentence: Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 609. However, as Gibbs CJ observed in Lowe “other things are not always equal”: at 609. Different sentences must be imposed where there is a need to reflect differences between offenders, such as different degrees in the involvement of the role of the offenders, differences in the subjective cases and antecedents of offenders and differences in the charges brought against the different offenders: Green v The Queen; Quinn v The Queen [2011] HCA 27; 244 CLR 462 at 473 [28]; Saipani v The Queen [2021] ACTCA 5 at [56]; R v Nicolas; R v Palmer [2019] ACTCA 36 at [99].

64․In the present case, the co-offenders were each young persons at the time of the offending, whereas the offender had recently turned 18. As Loukas-Karlsson J held in R v BS-X [2021] ACTSC 160; 16 ACTLR 238, where one offender is an adult and the other is a young person, it is proper for the Court to recognise that the sentencing takes place in very different regimes (at [124]): R v Ho (Unreported, Court of Criminal Appeal of NSW, 28 February 1997), R v Colgan [1999] NSWCCA 292; R v Govinden [1999] NSWCCA 118; 106 A Crim R 314; R v Boney [2001] NSWCCA 432; R v Wong [2003] NSWCCA 247.

65․These differences are significant. As Simpson AJA held in Apulu v The King [2022] NSWCCA 244 at [111], the difference in sentence regimes:

… greatly reduces, almost to vanishing point, the relevance of a sentence imposed in the Children’s Court upon an offender who is a child. That is because the parity principle requires like cases to be treated alike; where there are differences in the cases of two offenders, the law permits a differential approach.

66․Nonetheless, it remains the case that the sentences imposed on the co-offenders in the Childrens Court are “not irrelevant”: see Govinden at [35] – [36]; see also Colgan at [11].

67․Accordingly, in determining the sentences to be imposed on the offender, I will pay regard to the sentences imposed on the co-offenders. However, in doing so, I will bear firmly mind the differences in the two applicable sentencing regimes, and the differences in the offences for which the offenders were being sentenced.

Guilty pleas

68․The offender pleaded guilty to the offences in the first sequence following a Criminal Case Conference. The offender pleaded guilty to the offences in the second sequence in the Magistrates Court. The offender is entitled to a reduction of the sentences to be imposed as a result of these pleas of guilty: s 33(1)(j) of the Crimes (Sentencing) Act; R v Nicholas; R v Palmer [2019] ACTCA 36 at [49] – [53]. I will afford the offender a reduction of 20% for the sequence 1 offences and 25% for the sequence 2 offences.

Comparative cases

69․I have carefully considered the sentences imposed in the comparative cases, as required by s 33(1)(za) of the Sentencing Act.

70․In considering these sentences, I have borne in mind that these cases illustrate, but do not define, the possible range of sentences available, and that sentencing practice cannot cap the upper nor lower ranges of a sentence: R v Pham [2015] HCA 39; 256 CLR 550 at 560 [29]; Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [51] – [53]. The function of comparative cases is not to pursue strict mathematical equivalence as between sentencing outcomes for the same offence, but rather to ensure consistency in the application of relevant principles: Hili v R [2010] HCA 45; 242 CLR 520 at [48] – [49].

71․The prosecution drew my attention to two comparative cases: DPP v CR [2023] ACTSC 293 and DPP v Malibe [2024] ACTSC 43, which each concerned young offenders.

72․In CR, the offender was sentenced for 16 offences arising from two sequences of offending conduct; namely, one count of aid, abet, counsel or procure aggravated robbery, five counts of dishonestly drive/ride motor vehicle without consent, three counts of burglary, four counts of theft, one count of arson, and two counts of aggravated burglary. The first sequence involved the offender arranging to buy vapes from his victim at the victim’s home, where two other men then arrived, threaten those inside with a gun, assaulted them, and stole firearms from the home. The second sequence involved six separate incidents where the offender and other men entered homes, from which they stole keys, cars, cash, electronic devices, dogs and other personal items, while often assaulting or threatening their victims. At the time of the offending, the offender was aged 18 years, and was subject to an Intensive Correction Order (ICO), a suspended sentence and bail conditions. The offender received a head sentence of six years, one month and six days imprisonment. The offender’s co-offender in the second sequence of offending received a head sentence of 4 years and 8 months imprisonment: DPP v DB (a pseudonym) [2023] ACTSC 294.

73․In DPP v Malibe, the offender was sentenced for two counts of aggravated burglary, one count of theft by way of joint commission and one count of damaging property. The offender and his co-offenders had first unsuccessfully and later successfully broken into an electronics store using an angle grinder and an axe, and took from the store approximately 46 mobile phones. The offender was aged 20 years at the time of the offending. The offender had no prior offences, and was experiencing financial hardship at the time of the offending. He was sentenced to 18 months imprisonment wholly suspended upon the offender giving an undertaking to comply with good behaviour obligations for a period of two years.

74․As can be seen from the above summaries, the present offending and the subjective circumstances of the present offender differ considerably from these cases. On the one hand, the present offending does not involve the more serious charge of arson as was the case in CR, and did not involve the infliction of actual physical violence, as was the case in CR. On the other hand, the offending in the present case involved multiple aggravated robberies across multiple stores. Unlike the offender in Malibe, the offender does have a prior history and there is no explanation for the offending other than his use of drugs. In these circumstances, I have not found the sentences imposed in CR and Malibe to be of any significant guidance in determining the sentences to be imposed for the present offending.

Determination

75․The offences for which the offender has pleaded guilty are serious. He committed a significant number of aggravated burglaries in two separate crime sprees in January 2023. He, and his co-offenders caused significant damage to many businesses, a number of which were small businesses.

76․The Court must denounce this offending and recognise the significant harm that is caused, both to these small businesses, and to the broader community. The sentences that are to be imposed must also deter offending of this nature.

77․Importantly however, the Court must be careful to impose a sentence which does not crush the offender’s prospects of rehabilitation. The offender is very young. He was only 18 years old at the time of the offending. As explained above, his decision to engage in the offending conduct was affected by his youth and his mental health conditions. The offender is now 21 years old.

78․The relevant principles to be applied when sentencing such a young offender were helpfully set out by Hamill J in Sarhene v The Queen [2022] NSWCCA 79 at [25]:

(i)There is no doubt that the youth of an offender is a relevant factor, or a “most significant factor” in assessing what sentence should be imposed.

(ii)Considerations of general deterrence may be less significant when sentencing a juvenile or young offender.

(iii)Rather, emphasis should be placed on the “the need to provide an opportunity for rehabilitation”.

(iv)While the relevance of youth diminishes the closer an offender gets to the age of maturity, there is no bright line between an offender who is just under 18 years of age and one who is just over 18 years of age; “emotional maturity and impulse control develop progressively during adolescence and early adulthood.”

(v)Where “immaturity is a significant contributing factor to an offence, then it may fairly be said that the criminality involved is less than it would be in the case of an adult of more mature years.”

(vi)An offender’s youth and immaturity is also relevant to an assessment of their moral culpability.

(vii)In some cases, where the young offender is said to have committed an “adult crime” or “conducted him or herself as an adult might”, the significance of youth, or the weight to be afforded to it, has been held to be less.

(viii)However, courts should not “be over-ready to discount the relevance of an offender’s youth on the basis that the offender has engaged in adult behaviour or acted as an adult.” [citations omitted]

79․I have found that the offender has reasonable, albeit guarded prospects of rehabilitation. For the first time since he was 13 years old, he has started to take responsibility for his own actions. He has successfully completed a full-time residential rehabilitation program, and has remained largely free of drugs since that time. He has now been at liberty for 16 months. Whilst that liberty has not been unblemished, the offender has not been engaging in the sustained criminal activity which he engaged in as a young person. The offender is remorseful for his conduct. I accept that he is committed to turning his life around.

80․In his oral evidence, the offender described, in compelling terms, the difficulties which further custody will present for him. He said that “people think differently in there”. As the offender explained, it is regrettably the case that drugs are available in custody. The offender will come back into contact with other offenders from his youth with whom he is no longer in contact with.  As a result of these matters, the offender will face greater challenges for his rehabilitation within custody than he faces outside of custody.

81․There is no dispute that the s 10 threshold is crossed, and that no sentence other than full time imprisonment is appropriate. The offender’s counsel invited me to impose an ICO. Regrettably, the offending is simply too serious for such a course. However, the alternative course proposed by the offender’s counsel, namely to partially suspend a term of full time imprisonment, is appropriate, particularly in view of the offender’s youth and the need to ensure, as far as possible, the continuation of his rehabilitation.

82․A particularly challenging aspect of the present sentencing task concerns the issue of totality. The effective sentence to be imposed on the offender must represent a proper period of incarceration for the total criminality involved: R v AEM [2002] NSWCCA 58 at [70]. The task of assessing the “total criminality involved” involves consideration of competing factors which pull in different directions. As the Court of Appeal has held in R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 at [92]:

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. 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. 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). 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. 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. (citations omitted)

See also O’Brien v The Queen [2015] ACTCA 47 at [26]

83․Section 33(1)(c) of the Crimes (Sentencing) Act requires the sentencing court to consider whether the offences from part of a course of conduct consisting of a series of criminal acts of the same or similar character; see also R v White [2023] ACTCA 35 at [58].

84․I have previously requested that the legislature consider enacting aggregate sentences in this jurisdiction: DPP v Lock (a pseudonym) [2025] ACTSC 231 at [199] – [200]. I repeat that request in the present case.

85․However, recognising that there is “no single correct approach to the structuring of multiple sentences”, and that the “totality principle can be implemented in a variety of separate ways”, I consider that the appropriate course in the present case is to impose entirely concurrent sentences for each offence within each sequence. I have formed this view because the offences within each sequence were committed within a very short period (less than an hour for each sequence); they were committed by the same offenders; and arose from the same overall decision to offend. In determining the sentences to be imposed for each sequence, I have taken into account the fact that each individual offence is a part of a course of conduct which has involved the infliction of damage upon separate premises, and has caused harm to separate businesses.

86․The course of conduct in the sequence 1 offences involved more damage, to more businesses, than was involved in the sequence 2 offences. For this reason, the sentences to be imposed for the sequence 1 offences will be higher than those imposed for the sequence 2 offences, even though the offender’s role in the second sequence of offences was more serious than his role in the first sequence. The head sentence to be imposed for the sequence 1 offences following the application of the discounts for the offender’s pleas of guilty will be imprisonment for 3 years. The head sentence to be imposed for the sequence 2 offences following the imposition of the discounts for the offender’s pleas of guilty will be imprisonment for 2 years. The sentences for theft, minor theft and the driving offences will be entirely concurrent within each sequence, as the criminality involved in those offences will be encompassed by the head sentences that I will set.

87․The two separate sequences (sequence 1 and sequence 2) are separate courses of conduct, which occurred on different days, and involved a fresh decision to offend on the part of the offender on each occasion. However, bearing in mind the temporal proximity between the two sequences, there will be some, but not entire, concurrency between those two sequences, to reflect this fact. The overall head sentence, after the imposition of the relevant discounts, will be a period of imprisonment of 4 years. I am satisfied that this overall period is sufficient to recognise the total criminality involved in all of the offending. I acknowledge this is a significantly higher period of imprisonment than was imposed on the co-offenders. However, as explained above, the co-offenders were dealt with under a different sentencing regime to the offender, because they were children at the time of the offending, whereas the offender was an adult.

88․As earlier foreshadowed, taking into account the offender’s youth and the need to ensure that his prospects of rehabilitation are facilitated and not destroyed, I will partially suspend the sentences to be imposed. The sentences will be suspended after the minimum period of actual incarceration required, having regard to the objective seriousness of the offending, the offender’s subjective circumstances, and the competing purposes of sentencing, which includes rehabilitation, as well as punishment and deterrence. The offender has already served 147 days of custody, whilst bail refused. I will back date the sentences to be imposed by that period. Taking into account that period of custody served, I consider that a further 12 months imprisonment is the minimum period of additional full-time custody required. The offender will then be subject to a significant period of supervision by Corrective Services, so as to facilitate his rehabilitation.

89․The prosecution sought, and the offender did not oppose, the making of an order for compensation. I will make a compensation order in the sum of $6,106.38.

Orders

90․For those reasons the following orders are made:

(1)I order that the offender pay compensation in the sum of $6,106.38.

(2)The offender is convicted of joint commission aggravated burglary (CC2023/4703) (count 1) and sentenced to a period of imprisonment of three years, to commence on 5 February 2025 and expire on 4 February 2028;

(3)The offender is convicted of joint commission minor theft (CC2023/1839) (count 2) and sentenced to a period of imprisonment of 2 weeks, to commence on 5 February 2025 and expire on 18 February 2025;

(4)The offender is convicted of joint commission aggravated burglary (CC2023/4704) (count 3) and sentenced to a period of imprisonment of three years, to commence on 5 February 2025 and expire on 4 February 2028;

(5)The offender is convicted of joint commission aggravated burglary (CC2023/4705) (count 4) and sentenced to a period of imprisonment of three years, to commence on 5 February 2025 and expire on 4 February 2028;

(6)The offender is convicted of joint commission minor theft (CC2024/1841) (count 5) and sentenced to a period of imprisonment of 2 weeks, to commence on 5 February 2025 and expire on 18 February 2025;

(7)The offender is convicted of joint commission aggravated burglary (CC2023/4706) (count 6) and sentenced to a period of imprisonment of three years, to commence on 5 February 2025 and expire on 4 February 2028;

(8)The offender is convicted of joint commission aggravated burglary (CC2023/4707) (count 7) and sentenced to a period of imprisonment of three years, to commence on 5 February 2025 and expire on 4 February 2028;

(9)The offender is convicted of joint commission aggravated burglary (CC2023/4708) (count 8) and sentenced to a period of imprisonment of three years, to commence on 5 February 2025 and expire on 4 February 2028;

(10)The offender is convicted of joint commission aggravated burglary (CC2023/4709) (count 9) and sentenced to a period of imprisonment of three years, to commence on 5 February 2025 and expire on 4 February 2028;

(11)The offender is convicted of joint commission aggravated burglary (CC2023/4710) (count 10) and sentenced to a period of imprisonment of three years, to commence on 5 February 2025 and expire on 4 February 2028;

(12)The offender is convicted of joint commission minor theft (CC2024/1842) (count 11) and sentenced to a period of imprisonment of 2 weeks, to commence on 5 February 2025 and expire on 18 February 2025;

(13)The offender is convicted of joint commission aggravated burglary (CC2023/4711) (count 12) and sentenced to a period of imprisonment of three years, to commence on 5 February 2025 and expire on 4 February 2028;

(14)The offender is convicted of joint commission theft (CC2023/4733) (count 13) and sentenced to a period of imprisonment of 1 month, to commence on 5 February 2025 and expire on 4 March 2025;

(15)The offender is convicted of joint commission aggravated burglary (CC2023/4715) (count 14) and sentenced to a period of imprisonment of three years, to commence on 5 February 2025 and expire on 4 February 2028;

(16)The offender is convicted of joint commission minor theft (CC2024/1846) (count 15) and sentenced to a period of imprisonment of 2 weeks, to commence on 5 February 2025 and expire on 18 February 2025;

(17)The offender is convicted of joint commission aggravated burglary (CC2023/4713) (count 16) and sentenced to a period of imprisonment of three years, to commence on 5 February 2025 and expire on 4 February 2028;

(18)The offender is convicted of joint commission minor theft (CC2024/1844) (count 17) and sentenced to a period of imprisonment of 2 weeks, to commence on 5 February 2025 and expire on 18 February 2025;

(19)The offender is convicted of joint commission aggravated burglary (CC2023/4714) (count 18) and sentenced to a period of imprisonment of three years, to commence on 5 February 2025 and expire on 4 February 2028;

(20)The offender is convicted of joint commission minor theft (CC2024/1845) (count 19) and sentenced to a period of imprisonment of 2 weeks, to commence on 5 February 2025 and expire on 18 February 2025;

(21)The offender is convicted of joint commission aggravated burglary (CC2023/4716) (count 20) and sentenced to a period of imprisonment of three years, to commence on 5 February 2025 and expire on 4 February 2028;

(22)The offender is convicted of joint commission minor theft (CC2024/1851) (count 21) and sentenced to a period of imprisonment of 2 weeks, to commence on 5 February 2025 and expire on 18 February 2025;

(23)The offender is convicted of joint commission aggravated burglary (CC2023/4717) (count 22) and sentenced to a period of imprisonment of three years, to commence on 5 February 2025 and expire on 4 February 2028;

(24)The offender is convicted of joint commission minor theft (CC2024/1847) (count 23) and sentenced to a period of imprisonment of 2 weeks, to commence on 5 February 2025 and expire on 18 February 2025;

(25)The offender is convicted of joint commission aggravated burglary (CC2023/4712) (count 24) and sentenced to a period of imprisonment of three years, to commence on 5 February 2025 and expire on 4 February 2028;

(26)The offender is convicted of joint commission minor theft (CC2024/1843) (count 25) and sentenced to a period of imprisonment of 2 weeks, to commence on 5 February 2025 and expire on 18 February 2025;

(27)The offender is convicted of joint commission aggravated burglary (CC2023/4718) (count 26) and sentenced to a period of imprisonment of three years, to commence on 5 February 2025 and expire on 4 February 2028;

(28)The offender is convicted of joint commission aggravated burglary (CC2023/4719) (count 27) and sentenced to a period of imprisonment of three years, to commence on 5 February 2025 and expire on 4 February 2028;

(29)The offender is convicted of joint commission minor theft (CC2024/1848) (count 28) and sentenced to a period of imprisonment of 2 weeks, to commence on 5 February 2025 and expire on 18 February 2025;

(30)The offender is convicted of joint commission aggravated burglary (CC2023/4720) (count 29) and sentenced to a period of imprisonment of three years, to commence on 5 February 2025 and expire on 4 February 2028;

(31)The offender is convicted of joint commission minor theft (CC2024/1849) (count 30) and sentenced to a period of imprisonment of 2 weeks, to commence on 5 February 2025 and expire on 18 February 2025;

(32)The offender is convicted of joint commission aggravated burglary (CC2023/4721) (count 31) and sentenced to a period of imprisonment of three years, to commence on 5 February 2025 and expire on 4 February 2028;

(33)The offender is convicted of joint commission minor theft (CC2024/1850) (count 32) and sentenced to a period of imprisonment of 2 weeks, to commence on 5 February 2025 and expire on 18 February 2025;

(34)The offender is convicted of joint commission aggravated burglary (CC2024/3055) and sentenced to a period of imprisonment of two years, to commence on 5 February 2027 and expire on 4 February 2029;

(35)The offender is convicted of joint commission aggravated burglary (CC2024/3056) and sentenced to a period of imprisonment of two years, to commence on 5 February 2027 and expire on 4 February 2029;

(36)The offender is convicted of joint commission theft (CC2024/3060) and sentenced to a period of imprisonment of 2 months, to commence on 5 February 2027 and expire on 4 April 2027;

(37)The offender is convicted of joint commission aggravated burglary (CC2024/3057) and sentenced to a period of imprisonment of two years, to commence on 5 February 2027 and expire on 4 February 2029;

(38)The offender is convicted of joint commission theft (CC2024/3061) and sentenced to a period of imprisonment of two weeks, to commence on 5 February 2027 and expire on 18 February 2027;

(39)The offender is convicted of joint commission aggravated burglary (CC2024/3058) and sentenced to a period of imprisonment of two years, to commence on 5 February 2027 and expire on 4 February 2029;

(40)The offender is convicted of joint commission theft (CC2024/3062) and sentenced to a period of imprisonment of two weeks, to commence on 5 February 2027 and expire on 18 February 2027;

(41)The offender is convicted of joint commission aggravated burglary (CC2024/3059) and sentenced to a period of imprisonment of two years, to commence on 5 February 2027 and expire on 4 February 2029;

(42)The offender is convicted of joint commission theft (CC2024/3063) and sentenced to a period of imprisonment of two weeks, to commence on 5 February 2027 and expire on 18 February 2027;

(43)The offender is convicted of drive motor vehicle without consent (CC2024/3064) and sentenced to a period of imprisonment of 1 month, to commence on 5 February 2027 and expire on 4 March 2027;

(44)The offences of drive motor vehicle without consent (CC2023/4722) and drive motor vehicle while disqualified as a repeat offender (CC2024/3065) have been taken into account as explained in my reasons.

(45)The total effective sentence will be a period of imprisonment of 4 years, commencing on 5 February 2025 and expiring on 4 February 2029;

(46)The sentence is to be suspended after one year from today, 2 July 2025, on 1 July 2026, upon entry into an undertaking to comply with good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) until 4 February 2029.

I certify that the preceding ninety [90] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Baker

Associate:

Date: