Director of Public Prosecutions v DB (a Pseudonym)
[2023] ACTSC 294
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v DB (A Pseudonym) |
Citation: | [2023] ACTSC 294 |
Hearing Date: | 18 September 2023 |
Decision Date: | 18 October 2023 |
Before: | Taylor J. |
Decision: | See [139]-[140]. |
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 – significant issues with illicit drug use – disrupted childhood – compelling subjective circumstances – where ineligible for DATO |
Legislation Cited: | Criminal Code 2002 (ACT), ss 45A, 308, 310, 311, 312, 318(2), 404 Crimes (Sentencing) Act 2005 (ACT), ss 6, 7, 10, 12A, 33, 35, 37 Magistrates Court Act 1930 (ACT), s 90B Road Transport (Road Rules) Regulation 2017 (ACT), ss 20, 59 |
Cases Cited: | Apps v The Queen [2020] ACTCA 53 Barrett v The Queen [2016] ACTCA 38 Blundell v The Queen [2019] ACTCA 34 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Cole v The Queen [2019] ACTCA 3; 14 ACTLR 84 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 DPP v CR [2023] ACTSC 293 Green v The Queen; Quinn v the Queen [2011] HCA 49; 244 CLR 462 Henry v The Queen [2019] ACTCA 5 Hili v The Queen [2010] HCA 45; 242 CLR 520 Hogan v Hinch [2011] HCA 4; 243 CLR 506 KT v R [2008] NSWCCA 51; A Crim R 112 Laipato v The Queen [2020] ACTCA 35 Lowe v the Queen [1984] HCA 46; 154 CLR 606 Markarian v The Queen [2005] HCA 25; 228 CLR 357 MT v The Queen [2021] ACTCA 26; 17 ACTLR 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 Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 R v Dawson [2022] ACTSC 64 R v Deng [2022] ACTSC 143 R v Evans; R v Reid [2020] ACTSC 169 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 Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Hodge [2019] ACTSC 15 R v Hutchinson [2014] ACTCA 29 R v Jarrold [2010] NSWCCA 69 R v Kilic [2016] HCA 48; 259 CLR 256 R v King [2022] ACTSC 183 R v Lau [2020] ACTSC 120 R v Lock [2016] ACTSC 319 R v Lockwood [2018] ACTSC 288 R v Lovelock [2014] ACTSC 229 R v Lutze [2020] ACTSC 121 R v Massey (No 3) [2021] ACTSC 156 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 Robertson [2009] ACTCA 19; 174 ACTR 32 R v Rosewarne [2021] ACTSC 217 R v Sidaros (No 6) [2021] ACTSC 24 R v TL [2017] ACTCA 18 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 R v Tran [1999] NSWCCA 109 R v TX [2020] ACTSC 157 R v White [2023] ACTCA 35 R v Williams [2019] ACTSC 298 R v Wrigley [2015] ACTSC 114 Saipaini v The Queen [2021] ACTCA 5; 288 A Crim R 191 Sampson v De Haan [2016] ACTSC 327 Taylor v The Queen [2014] ACTCA 9 The Queen v Miller [2019] ACTCA 25 |
Parties: | Director of Public Prosecutions DB ( Offender) |
Representation: | Counsel C Diggins ( DPP) D Ager ( Offender) |
| Solicitors ACT Director of Public Prosecutions Darryl Perkins Solicitors ( Offender) | |
File Numbers: | SCC 16 of 2023 SCC 17 of 2023 |
TAYLOR J:
Introduction
1․This offender is to be sentenced for what I have described as a spree of offences in the sentencing remarks for a co-offender, committed in July 2022 when the offender was 19 years old. The offender was on bail when he committed all of the offences. The offences include objectively serious offences such as aggravated robbery and aggravated burglary. These kinds of offences have immediate and long-lasting impacts upon the victims and their families. The offender is a young man diagnosed with a severe addiction to illicit substances. He has an extensive criminal history reflective of his consistent engaged with the criminal justice system and his criminal history is extensive. He has demonstrated some commitment to rehabilitation while on remand.
2․The offender is to be sentenced in relation to the following offences on an indictment dated 11 July 2023:
(a)Count 1 (CC2022/9546) – Dishonestly drive or ride motor vehicle without consent contrary to s 318(2) Criminal Code 2002 (ACT) (the Criminal Code) which carries a maximum penalty of 500 penalty units, 5 years imprisonment or both.
(b)Count 3 (SCCAN2023/42) – Burglary contrary to s 311 of the Criminal Code by way of joint commission which carries a maximum penalty of 1400 penalty units, 14 years imprisonment or both;
(c)Count 4 (CC2022/9548) – Theft contrary to s 308 of the Criminal Code by way of joint commission which carries a maximum penalty of 1000 penalty units, 10 years imprisonment or both;
(d)Count 5 (CC2022/9550) – Dishonestly drive or ride 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;
(e)Count 9 (SCCAN2023/43) – Burglary contrary to s 311 of the Criminal Code and by way of joint commission which carries a maximum penalty of 1400 penalty units, 14 years imprisonment or both;
(f)Count 15 (CC2022/9556) – Arson contrary to s 404 of the Criminal Code, by way of joint commission, which carries a maximum penalty of 1500 penalty units, 15 years imprisonment or both;
(g)Count 17 (CC2022/9557) – Aggravated burglary contrary to s 312 of the Criminal Code and by way of joint commission which carries a maximum penalty of 2000 penalty units, 20 years imprisonment or both;
(h)Count 18 (CC2022/9559) – Aggravated robbery contrary to s 310 of the Criminal Code by way of joint commission which carries a maximum penalty of 2500 penalty units, 25 years imprisonment or both;
(i)Count 19 (CC2022/9561) – Dishonestly drive or ride 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;
(j)Count 26 (SCCAN2023/46) – Burglary contrary to s 311 of the Criminal Code by way of joint commission which carries a maximum penalty of 1400 penalty units, 14 years imprisonment or both;
(k)Count 27 (CC2022/7052) – Theft contrary to s 308 of the Criminal Code by way of joint commission which carries a maximum penalty of 1000 penalty units, 10 years imprisonment or both; and
(l)Count 28 (CC2022/7221) – Dishonestly drive or ride 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 of the Crimes (Sentencing) Act 2005 (ACT) (the Crimes (Sentencing) Act) the offender has asked the court to take into account the following offences in making a sentence-related order for the principal offence of Count 9:
(m)Count 10 (CC2022/9553) – Theft contrary to s 308 of the Criminal Code by way of joint commission which carries a maximum penalty of 1000 penalty units, 10 years imprisonment or both;
(n)Count 11 (SCCAN2023/44) – Theft contrary to s 308 of the Criminal Code and by way of joint commission which carries a maximum penalty of 1000 penalty units, 10 years imprisonment; and
(o)Count 12 (CC2022/9555) – Dishonestly drive or ride 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.
4․Furthermore, in sentencing the principal offence of Count 26, the offender asks the Court to take into account the following offences:
(a)Count 24 (SCCAN2023/45) – Burglary contrary to s 311 of the Criminal Code and by way of joint commission which carries a maximum penalty of 1400 penalty units, 14 years imprisonment or both; and
(b)Count 25 (CC2022/9563) - Theft contrary to s 308 of the Criminal Code and by way of joint commission which carries a maximum penalty of 1000 penalty units,10 years imprisonment or both.
Transfer offences
5․The offender has entered pleas of guilty to the following charges transferred to this Court pursuant to s 90B of the Magistrates Court Act 1930 (ACT):
(a)CC2022/9551 – Entered intersection when traffic light was red contrary to s 59 of the Road Transport (Road Rules) Regulation 2017 (ACT) (the RTRRR) which carries a maximum penalty of 20 penalty units.
(b)CC2022/9565 – Exceed speed limit by more than 45km/h contrary to s 20 of the RTRRR which carries a maximum penalty of 20 penalty units.
(c)CC2022/9566 – Exceed speed limit by more than 45km/h contrary to s 20 of the RTRRR carries a maximum penalty of 20 penalty units.
Facts
Incident 1
6․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 offender sent a screenshot of this post to the co-offender, CR. On the same evening, CR filmed himself in the vehicle while the offender was driving (Count 1). On the morning of the 2 July 2022 the offender 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 there.
7․The offender and KS 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
8․Some time between 1:30am on 3 July 2022 and 6:27am on 4 July 2022 the offender and CR entered an unlocked home in Dunlop (Count 3). The victim, Ms Kercher, was home at the time. They took the house keys, the victim’s silver Ford Focus motor vehicle (YOG66U), the car keys to the Ford Focus, a handbag and a 7-centilitre bottle of ‘Maker’s Mark 46’ whiskey (Count 4).
9․Around 6:27am on 4 July 2022 CR filmed himself, the offender and an unknown male driving inside the silver Ford Focus. CR is holding the bottle of Maker’s Mark whiskey and the victim’s water bottle can be seen in the car.
10․At approximately 6:29am on 4 July 2022, during the above-mentioned video the offender is seen driving straight through a red light without slowing down (CC2022/9551).
11․Between 6:49am and 7:07am on 4 July 2022 CR filmed the offender and KS inside KS’s mother’s house in MacGregor. The offender is drinking from the whiskey bottle in the same jacket he had on while in the stolen Ford Focus.
12․At 11:52pm on 4 July 2022, CR filmed the offender, KS and [redacted] inside the Ford Focus. The offender is in the front passenger seat. A voice can be heard to say, “Hocus pocus, get out the Focus.”
13․At 12:04am on 5 July 2022, KS is filmed in the driver’s seat of the Ford Focus holding a shortened double-barrel shotgun. There are three other people in the car, and these were identified by [redacted] as herself, the offender (DB) and the co-offenders CR and KS (Count 5).
Incident 3
14․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.
15․At 2:36am CR’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. At 2:41am the Focus travelled again along Harrick’s crescent with the lights off. At 2:44am the Focus turned onto Harricks Crescent then drove out of view (Count 5).
16․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, $1500 in cash, and an Apple iPad (Schedule: Counts 10 and 11). They also took the black Audi A5 car that was parked in the garage (Schedule: Count 10). At around 7am the occupiers of the home realised their belongings and car had been stolen and called police.
17․At 3:48am the same morning, CR filmed the offender driving the stolen black Audi A5.
18․At 5:25am CR filmed another video where he is in the front passenger seat and the offender is driving. [Redacted] is also in the car; she later identified herself in the footage to police (Schedule: Count 12).
Incident 4
19․Around 11:25pm on 4 July 2022 CCTV captured the stolen black Audi A5 pull up outside KS’s home in MacGregor. The offender came out of the house and got into the front passenger seat (Schedule: Count 12). He can be seen holding a blow-torch shaped object in his hand.
20․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, as was CR’s.
21․Between 1:16 – 1:23am CR filmed several videos of the exterior of the silver Ford Focus while the cabin was on fire. The offender and KS are seen moving around the burning vehicle striking it with poles. The videos record the offender and 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).
22․The offender and co-offenders drove away in the black Audi A5 and left the Silver Ford Focus on fire. At 1:23am the black Audi A5 was recorded by a security camera at Angle Crossing (Schedule: Count 12).
23․On 7 July 2022 stolen number plates and the burnt out shell of the Ford Focus was found by police on Angles Crossing Road.
24․At 2:55am on 5 July 2022 CCTV captured the black Audi A5 returning to MacGregor (Schedule: Count 12). The offender got out of the car and CR moved into the passenger seat. The car then drove out of sight.
25․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 CR could not be excluded. The offender’s fingerprints were identified on the stolen plates and the interior of the front passenger window.
Incident 5
26․Around 1:53am on 12 July 2022, CR 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 CR and the offender are seated in the rear passenger seats.
27․At 4:20am the same morning, the victim Mr 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 into his ribs. The other said “Let me have a go at him I’ve got an axe,” while holding a small tomahawk style axe. The victim went inside, and the males drove the car away (Count 17 and 18). CR’s phone was connected to a cell tower in Lyneham.
28․The victim suffered some injuries from the attack, mainly on his right forearm, which were captured in photographs taken at his home. He suffered bruising to his ribcage and shoulder, as well as bruising and abrasions along his right forearm causing bleeding.
29․At 4:26am a speed camera captured the offender driving the white Audi RS5 at 135km/h in an 80km/h zone, hence exceeding the speed limit by more than 45km/h (CC2022/9565).
30․At 4:31am, CR filmed the offender driving inside the Audi at around 145km/h. A speed camera captured the vehicle driving at 145km/h in an 80km/h zone, hence exceeding the speed limit by more than 45km/h (CC2022/9566). He had his sleeves pulled over his hands while driving, presumably to attempt to avoid leaving fingerprints on the steering wheel of the vehicle. The offender said, “Rolling in high-end cars” to which CR responded, “Pump it” and the offender then says “Watch, coming on boost, coming on boost” (Count 19).
31․At 10:54pm on 13 July 2022 CR filmed himself and the offender sitting in the back of the stolen white Audi RS5. KS is driving the vehicle and CR says “Yes [KS]. Give it to him” (Count 19).
Incident 6
32․The following offences are scheduled to a principal offence of burglary (Count 26).
33․Sometime during the evening of 18 July 2022, the offender and CR entered the garage of a property in Garran (Schedule: Count 24) and took a mountain bike belonging to the victim (Schedule: Count 25). The victim realised the bike was missing the following morning and called the police. At 10:19am that morning CR filmed a video inside the stolen Audi RS4. The offender is seen driving and says “Hey let’s go get the downhill bike ya mad cunt. Yes, this, this gangster leaves me out the front goes in. Charges in their garage. Leaves me out the front for an hour and comes out. Freshest downhill ride.”
34․At 12:28pm on 19 July 2022, CR was recorded by a covert AFP Surveillance Operative riding on the stolen mountain bike. At 12:53pm the same day, a video filmed inside the Audi shows the stolen mountain bike inside the car.
Incident 7
35․At some time between 11:00pm on 18 July to 7:30am on 19 July 2022, the offender and CR entered a home in Garran (Count 26). They stole two French bulldogs, car keys and a white Audi RS4 parked in the driveway (Count 27).
36․On the morning of 19 July 2022 CR filmed the offender 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.” CR filmed two further videos that morning inside the stolen white Audi RS4 showing the offender driving the car (Count 28). Later that morning CCTV showed the car pulling up to the address in MacGregor and departing shortly afterwards with the offender, CR and KS driving away from the house. In the afternoon of 19 July 2022 CR filmed inside the white Audi, showing KS driving with grey gloves, the offender in the back seat and himself in the passenger seat.
Arrest
37․The offender was arrested along with KS, on 20 July 2022 during a search warrant of the Macgregor address. Police located and seized the keys to the white Audi A5, a CCTV hard-drive and one of the French bulldogs.
38․The white Audi was also located at this address. A mixed DNA profile was obtained from forensic examination of the vehicle and the offender could not be excluded as a contributor.
Sentencing considerations
Nature and circumstances of the offending
39․A consideration of the nature and circumstances of the 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]. 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].
40․The court is to take three offences into account when sentencing Count 9 and two offences into account when sentencing Count 26. 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.
41․The prosecution made submissions regarding the objective seriousness of the separate incidences and offences. The offender, while accepting the majority of the prosecution’s submissions regarding objective seriousness, made global submissions that the offences were “generally serious” with some being “more serious”, highlighting the following factors:
(a)the absence of a high or “professional” level of sophistication or planning to the offending;
(b)the offender’s involvement in any planning should be assessed in the context of him being under the influence of illicit drugs at the time;
(c)the offences are unremarkable and “crimes of addiction";
(d)in relation to Counts 24 and 25 the offenders did not enter the main house; and
(e)in relation to Counts 17 and 18 the offender was not involved in the infliction or threats of violence because he was the driver of the vehicle when it fled the scene
Counts 1, 5, 19, 28 and Count 12 to be taken into account: Drive or ride motor vehicle without consent
42․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 327 at [40] and R v Lock [2016] ACTSC 319 at [15] identify factors relevant to an assessment of objective seriousness for this offence and they can be summarised as follows:
(a)whether the offender drove or rode in the vehicle;
(b)the duration of the driving or riding;
(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 separately charged) 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)whether false numberplates were affixed to the vehicle (unless charged separately);
(g)the motivation for the use of the vehicle; and
(h)the level of inconvenience to the owner of the vehicle.
43․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 in relation to these offences.
Incident 1, Count 1
44․This 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 drove the vehicle on more than one occasion and it was returned to the owner with damage.
Incident 2, Count 5
45․This involved a vehicle taken from the victim’s home during a burglary. The co-offender CR was a rider in the vehicle and filmed the offender on one occasion while he drove it. The vehicle was driven by the offender while CR was a passenger over a period of 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.
Incident 5, Count 19
46․This involved a vehicle taken from the victim’s home during the course of a burglary. The offender drove the vehicle. On 12 and 13 July 2022 he drove it recklessly while CR filmed him. CR can be heard, essentially, egging the offender on, saying “pump it” as he drove the vehicle. KS was also filmed by CR driving the vehicle. The victims were without their car for 6 days and when it was located it had stolen number plates attached.
Incident 7, Count 28
47․This involved a vehicle taken from the victim’s home during the course of a burglary. The offender was the driver and drove the vehicle over the course of 19 and 20 July 2022 while CR was a rider in the vehicle. Again, CR filmed the offender driving, while the two family dogs, who were also stolen in the burglary, can also be seen in the vehicle.
Scheduled Count 12
48․This involved a vehicle taken from the victim’s home during the course of a burglary. CR was a rider in the vehicle while the offender drove it on 5 July 2022 on more than one occasion. CR again filmed the offender driving the vehicle. The vehicle was later used in the commission of Count 15.
49․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 1 is helpfully informed by the VIS provided. The victim’s vehicle in Count 5 was not able to be returned to her at all and the victims in Count 19 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 driving the vehicles as compared to CR who was riding in the vehicles.
Counts 3, 4, 9, 17, 18, 26, 27: Theft, burglary, aggravated burglary and aggravated robbery
50․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: see 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.
51․Before moving to the specific features of each case of burglary and the aggravated 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 and indeed were, inside their homes;
(b)the motivation for the offending in my view is 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 which is at the heart of the reason for the offending. While I accept the submission that the offender was using illicit substances heavily over the period of the offending, the suggestion that the offending was entirely driven by a desire to secure illicit substances is difficult to accept given the vehicles were not on sold for profit in any single instance. 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;
(c)there was no significant damage or vandalism involved in any of the burglary 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 in my view 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.
52․Putting aside the aggravated burglary and taking into account the observations 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, in my view, noting the nature and value of the property those offences are in the lower range of objective seriousness.
53․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. In R v Robertson [2009] ACTCA 19; 174 ACTR 32, the offence of aggravated robbery was described by the Court of Appeal at [9] as “an offence of the utmost gravity”. This example of the offence involved the actual infliction of violence. I will deal with the specific factors relevant in this offence, as well as make findings of fact in relation to the role of this offender in that offence, below.
Features of the individual counts relevant to an assessment of objective seriousness
Count 3 and 4
54․The burglary occurred at an unlocked residential home at about 1.30am. The victim was home at the time. The offender entered the home with a co-offender. The items stolen included the victim’s house keys, the Ford Focus motor vehicle, car keys, handbag and a bottle of whiskey. Those 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.
Count 9 and scheduled offences 10, 11 and 12
55․The burglary (Count 9) 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 Huer 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 been a source of both concern and inconvenience. The value of the items for Count 10 was not insignificant. Count 12 involved the driving of the stolen Audi A5 on various occasions.
Count 15: Arson
56․As compared to the co-offender CR, who was knowingly concerned in the commission of this offence, the offender is charged as a principal offender. He had a high level of involvement; the agreed facts state he was holding a blowtorch prior to the offending and videos taken by co-offender CR show him and KS walking around the car while it is on fire striking it with a crowbar.
57․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:
(a) How the fire was lit (for example, whether an accelerant was used);
(b) Whether the offending was intentional and the degree of premeditation or planning;
(c) The reason why the arson was committed;
(d) The degree of potential injury to life or harm to others; and
(e) The extent of the damage caused by the fire.
58․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 the offender had with him a blow torch when he got into the black Audi and then travelled to the scene of the arson. 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 of risk of injury to life or harm to others though, of course, once alight the blaze was largely out of the control of the offenders who were in close proximity to the vehicle. These features see the offence as a serious example of the offence.
Count 17 and 18
59․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 28]. 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 inflicted upon him, undoubtedly 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.
60․On any view, these two counts are serious examples of the offence in the higher range of offending. I am satisfied on the balance of probabilities that the offender was the driver of the motor vehicle taken from the Lyneham home and was not one of the two men who inflicted or threatened to inflict violence against the victim. I am satisfied that this was the role of the offender, drawing an inference based on the agreed facts recording that the offender was captured driving the vehicle only 11 minutes after the aggravated robbery and burglary occurred.
Count 26 and 27
61․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 and I note that in addition to any financial value there was significant sentimental value attached to the two family pets taken who were missing for some days before being returned.
Subjective circumstances
62․I turn now to the subjective circumstances of the offender. The offender is now 20 and was 19 at the time of the offending. He has a supportive relationship in his partner of six years who provided a character reference to the court.
63․The material before the Court included a Drug and Alcohol Sentencing List (DASL) Suitability Assessment Report, a Drug and Alcohol Treatment Assessment (DATA) Report, and various other certificates and documents from the offender’s time in custody at the Alexander Maconochie Centre (AMC).
DATA Report
64․The offender was born and raised in Canberra and experienced a normal childhood until the death of his brother, who committed suicide when the offender was 12 years old, which triggered the separation of his parents and family unit. On any view the suicide of the offender’s brother appears to have had an enormous impact on the offender and the family unit.
65․The author of the report noted that a Child Youth Protection Services (CYPS) report detailed disruption to the family as the offender’s brother experienced illicit substance abuse problems, occasionally stole from the family home and there was once a physical altercation with another one of the offender’s brothers. The offender described the death of his brother as the “trigger for his anti-social behaviour” and that he began associating with people who introduced him to illicit substance use. He currently has a positive relationship with his parents and siblings, in particular his younger sister. He has been in a stable relationship for six years and his partner visits him regularly in custody. The offender identifies his partner as a positive, pro-social influence in his life.
Assessment of suitability
66․The offender provided a history of illicit substance abuse and dependence, and reported it became a significant problem after his brother died. He started drinking alcohol to excess and using cannabis at a young age, from around 13-14 years old. This escalated to heroin use about three years after he began associating with anti-social people as a result of his brother’s death. He estimated he smoked heroin twice a week and spent $400 on it per day, and reported he began intravenous use two years ago. He also reported methamphetamine use, which was daily for a two-year period from about 2020. He used both methamphetamine and heroin together and escalated to intravenous use for both over time. He stated this caused immense financial strain. He also reported occasional MDMA use.
67․In terms of his attitude towards his drug use, he stated he wished to cease illicit substance abuse, engage with treatment and cited his relationship as a motivator for this change.
68․The author indicated that there was a CYPS report in 2015 indicating the offender had attempted suicide but declined to attend mental health appointments. In an assessment in 2022 no major mental illness was identified and the offender denied thoughts of self-harm or suicide. However in an assessment later in 2022 he was diagnosed with “depressive disorder and adjustment disorder” and indicated he wished to seek counselling after being released from custody.
69․The offender appears to have had a mixed experience while on remand. His behaviour while in custody at the Alexander Maconochie Centre (AMC), has resulted in 14 warnings or disciplines for negative behaviour, and 5 commendations for positive behaviour. In a positive development the offender has been employed as a sweeper and now in the kitchen at the AMC, which is acknowledged as a sought-after and trusted position because of the level of responsibility the role requires inmates to manage.
70․When the offender was asked about his offending, he primarily attributed the commission of the offences to being on drugs and stated he had limited memory of the offending and appeared to minimise some of his involvement. The following is extracted from the text of the report:
[H]e remembered “some” of the offences taking place. He alleged he “did not want to be there” when burglaries were taking place, and minimised his involvement in the offences by claiming the only reason he was present during the commission of the burglaries was to avoid having to find his own way home. DB claimed he was scared and noted his companions were under the influence of illicit substances. DB agreed he was also under the influence of illicit substances and admitted to driving stolen vehicles. He again minimised his involvement in the commission of the current offences by stating he only drove the stolen cars and did not steal them himself. DB attempted to reflect as to how the victims of the current offences before the Court may have felt, by stating he would not be comfortable if similar crimes were committed against him or his property. DB alleged he would never engage in such unlawful behaviour if he were sober.
71․The offender was assessed as having a high risk of general re-offending. Unsurprisingly the primary risk factors identified included his “criminal history, financial circumstances, use of illicit substance, anti-social companions, anti-social leisure activities, lack of education and employment and poor attitudes.” Given his significant history of offending the author was, quite reasonably in my view, concerned the offender would continue to engage in this behaviour and that despite his professed willingness to engage in community intervention programs he would not be able to do so meaningfully or avoid slipping into anti-social behaviour.
72․Significantly, the author expressed concerns regarding the offender’s partner and current accommodation options. Although the offender held her out as a pro-social influence in his life and stated she discouraged him from using and offending, ACT Policing provided ACT Corrective Services with information that the offender’s partner was associated with his co-offenders and had been present during some of his previous offending. It is noted that she has an entry on her criminal history for riding or driving a motor vehicle without consent in 2021.
73․Further the author highlights some concerns regarding her address in Weston given prior police attendance to the complex and that people linked to that address have been involved in recent drug activity; hence the authors considered monitoring of the accommodation would be required should the offender be sentenced to a DATO. The authors expressed concerns about the ability of the offender’s partner to support him to disengage from anti-social behaviour and companions.
74․Despite these concerns the offender was assessed as suitable for a DATO and recommended for high level of intervention by ACT Corrective Services. A structured and well-monitored case plan was suggested to address the offender’s risk factors.
DASL Suitability Assessment Report
75․The offender was assessed as suitable for participation in the DASL subject to his accommodation being approved. The offender gave a similar history to what I have set out above; significant illicit substance abuse following the death of his brother and continual periods of being in and out custody throughout his teenage years. He reported very few prosocial friends except one family friend who was identified as a positive influence.
76․The offender stated he wished to live with his partner upon release, in an ACT Housing property as their relationship was “mostly stable and supportive,” also citing the more convenient location of her residence compared to his parent’s house. However the author of the report considered that it would be difficult for the offender to benefit from the treatment if he did not have stable accommodation.
77․The offender described a limited education, only completing grade six and some of grade seven before moving in and out of custody as a young person. He has literacy challenges and has had limited employment as a tyre fitter and a painter. He reported completing all available courses at the AMC.
78․When asked how his substance abuse issues related to his offending, the offender said:
I was hanging out with the wrong people in the wrong place at the wrong time. I was on drugs and was stealing to get more drugs. I wasn’t thinking because I was just high. If it wasn’t for drugs I wouldn’t have been there. I wasn’t thinking and I wasn’t myself because my main focus was just on getting money for drugs.
79․Although the DATA Report recorded no major mental health issues, this report indicated there had been a previous high-lethality suicide attempt by the offender while in juvenile detention in 2017 which was corroborated by records. The offender denied any current suicidal ideation.
80․The offender detailed a similar history of drug use as provided to the author of the DATA Report, reporting commencing use of methamphetamine, cannabis and regular alcohol consumption at age 12 or 13, triggered by his brother’s death. He also reported commencing heroin at age 18.
81․The author expressed the opinion that the offender would be a “willing and able participant” in a DATO, albeit requiring additional supports and guidance, and that he appeared to be focused on the future, citing goals such as “learn strategies on how not to relapse and use”. The author considered the offender “presented with the likelihood of severe substance use disorder at the time of offending” and that methamphetamine appeared to be the drug which had the most impact on his commission of offences. The assessors considered that a day program would be the most effective.
DASL Documents – DATO Treatment Letter, DASL Case Plan, Letter from Karralika
82․The DASL Service provided a treatment letter for the offender, detailing a case plan based on the Karralika Matrix day program. A letter from Karralika confirmed that the offender had been placed on a waiting list for the Matrix day program and that in the event that the offender was released from custody prior to a space becoming available, Karralika could offer individual counselling.
83․A letter from Canberra Recovery Hub confirmed that the offender is likely to be assessed as suitable for their day program, but this assessment cannot be conducted while the offender is incarcerated.
Other materials
84․Counsel for the offender tendered further material demonstrating the various programs, courses and employment the offender has undertaken while in custody at the AMC, as well as his behaviour in custody. These included:
(a)Email confirming AMC Employment;
(i)Ms Watson from the AMC confirmed the offender had been promoted to second-in-command of the sweepers and that this was a promotion recommended on performance and behaviour.
(b)Statement of Employment Form;
(i)Mr D’Arcy, the offender’s supervisor in the kitchen, indicated he is an asset to the team, has been hardworking, punctual, polite and works well with others. He was rated as ‘excellent’ in all assessment criteria.
(c)Detainee Incentives and Earned Privileges (IEP) Review Form;
(i)The comment provided by an AMC corrections officer spoke to the offender’s change in behaviour, receiving positive commendations and being suitable for an enhanced IEP level.
(d)Certificates of Achievement – Thrive Program, Alcohol and Other Drug (AOD) Program, Responsible Service of Alcohol - Cert III in Hospitality, Participate in Safe Work Practices - Cert III in Hospitality, Use Hygienic Practices for Food Safety - Cert III in Hospitality, Course in Crystalline Silica Prevention.
85․Two letters from the offender were also provided to the court. A letter from January this year recorded the offender’s wish to cease using drugs, to gain meaningful employment to provide a better life and to grow as a person. The letter also detailed the impact the death of his brother had on the offender. The second, more recent, letter spoke of the offender’s eagerness to engage in “drug court” and to create a better future and make his family, friends and partner proud. He offered some explanation or justification for the behaviour warnings he has received while in custody.
Character reference
86․Ms C provided a character reference to the court in support of the offender, who is her partner. She spoke of creating a “fresh life” with the offender, including starting a family, and that he had taken responsibility for the harm caused and expressed a wish to start doing “drug court.” Ms C said that she would support him in any rehabilitation programs he needed to attend. The letter expresses that they are eager to live a better life together. Ms C appeared very willing to offer the offender support, evidenced by her ongoing support of him throughout the time he has been incarcerated.
87․The prosecution submitted that the plan presented whereby the offender will live with Ms C should be scrutinised closely. The prosecution highlighted that the offending engaged in by the offender occurred when he was living with his parents and subject to their supervision. The prosecution submitted that the proposal of living with Ms C, given her own relatively young age, provides the offender with less support than living with his parents, which did not actively deter him from offending.
Remorse, rehabilitation and degree of responsibility for the offending
88․The offender has demonstrated some remorse for his offending conduct. This is a factor relevant to his prospects for rehabilitation. If it can be achieved, the most durable guarantor of community safety is rehabilitation: Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32].
89․Despite some disciplinary incidents and warnings while in custody, the offender appears to have, overall, used his time on remand meaningfully. He has demonstrated himself capable of working and discharging a level of responsibility. He has also demonstrated what appears to be a genuine desire to address, what I am satisfied is a significant contributor to his offending behaviour, his use of drugs.
90․The offender is still a young man. It is in the interests of the community that rehabilitation, if a realistic prospect, be promoted.
91․Counsel for the offender made submissions that the purpose of the offending was to fund a drug habit. The prosecution suggested this submission was not entirely consistent with the statement of facts and the conduct referred to therein. That is, there is no suggestion that the vehicles stolen were quickly sold to fund the use of drugs. While some other property and in one instance, cash are the subject of theft offences those items were not of significant value individually or collectively. While I accept that obtaining and using illicit substances was part of the motivation behind the offending I am not satisfied that it was the sole motivator for the offender. I am satisfied based on the material before that the offender was nonetheless in the throes of severe addiction when the offending occurred and that addiction was formed at a young age when his ability to exercise judgment or choice was incomplete: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [273] per Wood CJ at CL. The offender’s severe addiction does put the offending in a particular context and I am satisfied it impacted his capacity to make sound judgements. The severity of the addiction also impacts the assessment of his prospects for rehabilitation and in turn, his prospect of reoffending. It is clear that the offender’s drug use is a significant criminogenic risk factor. If he is able to successfully manage that challenge his prospects for rehabilitation will improve and the need to protect the community from his conduct will be significantly addressed.
92․The author of the DASL suitability assessment noted the offender’s young age and cited the following research as an explanation for why he should remain on a day program waitlist rather than being placed into a residential rehabilitation program, if he was in fact sentenced to a DATO:
“The negative impact of receiving an excessive level of care appears to be most pronounced for offenders below the age of twenty-five years, perhaps because youthful offenders are more vulnerable to antisocial peer influences” (DeMatteo et al. 2006: Lowenkamp & Latessa, 2004; McCord, 2003; Petrosino et al., 2000; Szalavitz, 2010). In addition, “Particular caution is required, therefore, to ensure younger Drug Court participants are not placed erroneously into residential substance use disorder treatment.”
93․The offender’s counsel pointed to this reasoning to explain why the offender has not pursued placement in a residential drug rehabilitation facility. I accept that explanation. The plan in place to support the offender if he were to be released in the community as part of a drug and alcohol treatment order would see the offender on a waitlist for a day program and able to access counselling while living with his partner. There is also a prospect for employment upon release.
94․It seems to me that the material strongly supports a link between the offender’s move into drug taking and the tragic death of his brother. The offender would benefit then, in addition to intervention in relation to his drug use, from support and assistance in relation to managing the grief and loss he has unsurprisingly experienced.
95․The offender’s subjective circumstances including the death of his brother and his engagement with drug taking at a very young age, coinciding with CYPS involvement and persistent engagement with the youth justice system are compelling. All of those factors in turn contributed to the offender’s poor level of education with all factors ultimately combining to paint a picture of childhood disadvantage of the kind contemplated by the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy). This circumstance of disadvantage must be given “full weight” in every sentencing exercise. As the Court of Appeal observed in MT v The Queen [2021] ACTCA 26; 17 ACTLR 26 (MT) at [62], citing Bugmy:
[T]he moral culpability of an offender may be reduced by a dysfunctional upbringing (for which the offender cannot be held responsible) as it may thwart the offender’s capacity to mature and thus explain their criminal behaviour.
96․I am satisfied that this circumstance operates for this offender to “explain” to a degree his criminal conduct. This of course does not absolve the offender of responsibility. It does shed light on his behaviour in circumstances where the offending occurred in the context of a severe addiction and is characterised as impulsive and immature. I am satisfied the offender’s disadvantage does reduce his moral culpability and that the sentencing purposes of punishment and general deterrence should accordingly be moderated to some extent. On the other hand the offending also presented a real risk to safety in some instances and so the same factor of disadvantage operates to elevate the need to guard the community from the offending.
Criminal history
97․The offender has an extensive criminal history for a relatively young man. His criminal history includes entries of assault, property damage, possession of weapons, attempted aggravated robbery, possession of stolen property, theft, various minor driving offences, aggravated furious, reckless or dangerous driving and an attempt to escape from custody or arrest. He has previously been the subject of suspended sentence orders and sentences of full-time detention.
Time in custody
98․The offender has been in custody since his arrest on 20 July 2022. He was sentenced in March this year for other offending to periods of full time imprisonment, those sentences ending on 14 January 2023. The sentence I impose will be backdated to commence on 15 January 2023.
Conditional liberty
99․The offender was on bail for separate offending at the time of committing these offences, and this represents a betrayal of the opportunity to remain in the community: R v Tran [1999] NSWCCA 109 at [15]:
100․The fact that the offender committed these offences while on bail is an aggravating feature which must be taken into account in sentencing. 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]. 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
101․The offender entered pleas of guilty at a Criminal Case Conference to 12 counts on the indictment and 3 transfer charges on 14 July 2023 after the charges had been committed to the Supreme Court. A trial date had been set for 25 September 2023.
102․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 considerable court time, and consistent with Blundell v the Queen [2019] ACTCA 34, I have afforded a discount of around 20 per cent in recognition of the offender’s guilty pleas to each offence.
Parity
103․There being co-offenders for the 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].
104․In Saipaini v The Queen [2021] ACTCA 5; 288 A Crim R 191 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 [Lowe] 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.
105․The co-offender KS is yet to be sentenced. I am to also sentence one of the co-offenders, CR for these offences. CR is similarly a young man with an extensive criminal history including for property offences and offences of violence. Unlike his co-offender CR, the offender has demonstrated some real desire for reform through the efforts he has made while on remand. The offender was on bail when he committed the offences and not the subject of any other court order. CR was subject to an ICO, a SSO and bail conditions at the time of many of the offences he committed. As I have noted the offender was the driver on occasions where CR was the rider in the motor vehicles. In relation to the aggravated burglary and the aggravated robbery I am satisfied that the offender played a lesser role than that of CR.
106․Where there are substantial differences between the co-offenders, the sentence imposed should reflect that difference: Lowe 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.
107․As I have discussed above at [94]-[96] the offender presents to the court with a background of childhood disadvantage where the significant life event of the suicide of his brother when he was very young had rather catastrophic consequences for the offender and indeed his family. This event, I am satisfied, set the offender on a pathway leading to the severe addiction he is now considered to have. The efforts demonstrated by the offender while he has been in custody in relation to rehabilitation are of some significance. The circumstances of disadvantage as I have found them, the sound basis for a positive view of the offender’s prospects for rehabilitation discussed above at [88]-[90] and the roles each offender played in the offending, combine to see some difference as between the outcome for the two co-offenders.
108․I also note that CR will be subject to an overall sentence that will be different to that of the offender due to the need to deal with the cancellation of a two year ICO and a breach of an SSO with a period of 15 months imprisonment outstanding.
Victim impact statements
109․Two victim impact statements (VIS) were provided to the court in relation to this offender. I must take these statements into consideration: s 33(f) Crimes (Sentencing) Act. These statements assist the Court in understanding the extent of the impact upon the victims of these offending and the harm and loss caused to them by reason of the offences.
110․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. 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.
111․Mrs Stawaruk’s VIS outlines the impact the offences have 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 have decided to sell their home and move into an apartment, seeking greater security.
Sentencing practice – s 33(1)(za)
112․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].
113․The Court of Appeal noted in Barrett v The Queen [2016] ACTCA 38, 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 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.
114․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.
115․I have had regard to the particular circumstances that attended to each matter and note that the outcomes for the matters involving the offence of aggravated robbery are 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 2 years to 40 months imprisonment.
116․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 poured petrol out and set it 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, 6 months for the ride in motor vehicle without consent. This resulted in a head sentence of nine years and six months with a non-parole period of five years, six months.
117․I have also had regard to R v Dawson [2022] ACTSC 64 (Dawson) and R v Hall (No 2) [2020] ACTSC 63 (Hall).
118․In Dawson, McWilliam AsJ (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 but with the assistance of his co-offender, West, and other 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. Associate 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 per cent was allowed for the pleas of guilty. The offender was sentenced to 6 months imprisonment on each of the attempted burglaries, 8 months’ imprisonment for the burglary, 4 months’ imprisonment for damaging property, 12 months’ imprisonment each for the aggravated burglary, 9 months each for the theft and 6 months imprisonment for dishonesty riding a motor vehicle without consent. This resulted in a total sentence of 3 years and 8 months with a non-parole period (NPP) of 18 months.
119․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 experience 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 as still a prominent sentencing consideration. His Honour considered a discount of 20% 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 3 and 2 months imprisonment respectively; on the count of dishonestly take a motor vehicle without consent, 2 months’ imprisonment; on the count of attempt to take motor vehicle without consent, 2 months’ imprisonment; on the two counts of theft, 2 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 3 years and 5 months and a non-parole period of 22 months.
Determination
120․I sentence the offender against the background of the objects of the Crimes (Sentencing) Act contained in ss 6 and 7. The purposes of the sentencing I consider to be particularly prominent in this matter are specific deterrence, denunciation, rehabilitation, protection of the community and recognition of harm. While I have determined to moderate the need to give effect to punishment and general deterrence I nonetheless consider that they remain relevant considerations.
121․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.
122․The only appropriate outcome for each offence, considering possible alternatives, is a period of imprisonment: s 10, Crimes (Sentencing) Act. The nature and scope of the offending means alternatives to full time imprisonment such as an Intensive Correction Order or a suspended period of imprisonment would not appropriately capture the criminality involved or respect the prominent purposes of sentencing. Counsel for the offender did not contend otherwise. I will come to the option of a drug and alcohol treatment order below.
123․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 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 offence
(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.
124․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. The Court of Appeal in R v White [2023] ACTCA 35 considered this issue, explaining at [58]:
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.
125․The Court of Appeal went on to endorse the paragraph I have extracted below at [126] well as citing at [62], R v Jarrold [2010] NSWCCA 69 at [56] per Howie J (the other members of the Court agreeing), 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?
126․I have during the course of these remarks and the sentencing remarks in relation to the co-offender described the collection of offences as a “spree” the offending having occurred in July 2022. I bear in mind that the Court in White were of the view at [67] that significant concurrency between the offences similarly described as a “spree” (the spree period in that matter being 3 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 offenders 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 about 20 days.
127․In Nguyen v The Queen [2016] HCA 17; 256 CLR 656, Gageler, Nettle and Gordon JJ explained 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.
128․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 of accumulation or concurrency of multiple sentences:
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.
129․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 (TL). 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.
130․The law recognises that allowances should be made for an offender’s youth by reference not just to their biological age: see MT at [41] where the following passage from KT v R [2008] NSWCCA 51; 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]).
610 at [49].
131․The offender is to be sentenced for seven separate incidents, involving at least six separate victims. The sentence imposed must recognised the separate nature of the offending and avoid any suggestion that multiple offences will result in a discounted outcome. I consider that concurrency is warranted in relation to the offences committed 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 [88]-[90] in relation to his prospects for rehabilitation.
132․In my view, consistent with the observations I made in DPP v CR [2023] ACTSC 293 at [161] the offending reflects a significant degree of immaturity and an appetite for high risk behaviour, including but not limited to the use of illicit substances.
133․The offending conduct is overall largely unsophisticated. 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 nonetheless offending that the community must be protected from and demands an outcome that appropriately reflects the grave seriousness of some of the offences.
134․As the Court of Appeal indicated in The Queen v Miller [2019] ACTCA 25 at [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. As will become clear the outcome in relation to these offences will see the offender ineligible for a Drug and Alcohol Treatment Order to be made. The total sentence will exceed four years which is beyond the eligibility for such an order contained in s 12A of the Crimes (Sentencing) Act.
135․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], O’Brien v The Queen [2015] ACTCA 47 and Cole v The Queen [2019] ACTCA 3. I have had regard to those principles and bear in mind the need to explain the basis for the imposition of a non-parole period outside what might be considered the usual range of between 50-70%.
136․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.
137․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 has very good prospects for rehabilitation based on the efforts the offender has made while on remand and the consistent desire he has expressed, reflecting those efforts, to address his use of drugs. While of course rehabilitation is not the only factor to consider, the offender’s youth, his compelling subjective circumstances and the need for a structured regime of support and supervision for the offender when he is released into the community, provides a basis to impose a non-parole period below 50%.
138․I am of this view having regard to the nature and scope of the offending as well as the need to protect the community and punish the offender. A lengthy period of parole supervision appropriately promotes opportunity for reform while at the same time providing opportunity to closely scrutinise the offender’s conduct in the community and impose consequences and/or provide support if the offender returns to drug use or other non-compliant activity that elevates his risk of reoffending. I consider a non-parole period of 41% to be appropriate taking into account all of the factors relevant to this offender.
Sentence
139․For those reasons I make the following orders:
(1)On Count 1 (CC2022/9546) of dishonestly driving or riding in a motor vehicle without consent the offender is convicted and sentenced to 5 months imprisonment rounded down from 6 months imprisonment for the plea of guilty commencing on 15 January 2023 and ending on 14 June 2023.
(2)On Count 3 (SCCAN2023/42) of burglary by way of joint commission the offender is convicted and sentenced to 12 months imprisonment rounded down from 15 months imprisonment for the plea of guilty commencing on 15 February 2023 and ending on 14 February 2024.
(3)On Count 4 (CC2022/9548) of theft by way of joint commission the offender is convicted and sentenced to 8 months imprisonment rounded down from 10 months imprisonment for the plea of guilty commencing on 15 February 2023 and ending on 14 October 2023.
(4)On Count 5 (CC2022/9550) of dishonestly driving or riding in a motor vehicle without consent the offender is convicted and sentenced to 5 months imprisonment rounded down from 6 months imprisonment for the plea of guilty commencing on 15 May 2023 and ending on 14 October 2023.
(5)On Count 9 (SCCAN2023/43) of burglary by way of joint commission the offender is convicted and sentenced to 14 months imprisonment reduced from 18 months imprisonment for the plea of guilty commencing on 15 May 2023 and ending on 14 July 2024.
(6)On Count 15 (CC2022/9556) of arson by way of joint commission the offender is convicted and sentenced to 12 months imprisonment reduced from 15 months imprisonment for the plea of guilty commencing on 15 March 2024 and ending on 14 March 2025.
(7)On Count 17 (CC2022/9557) of aggravated burglary by way of joint commission the offender is convicted and sentenced to 28 months imprisonment reduced from 36 months imprisonment for the plea of guilty commencing on 15 April 2024 and ending on 14 August 2026.
(8)On Count 18 (CC2022/9559) of aggravated robbery by way of joint commission the offender is convicted and sentenced to 33 months imprisonment rounded down from 42 months imprisonment for the plea of guilty commencing on 15 April 2024 and ending on 14 January 2027.
(9)On Count 19 (CC2022/9561) of dishonestly driving or riding in a motor vehicle without consent the offender is convicted and sentenced to 5 months imprisonment rounded down from 6 months imprisonment for the plea of guilty commencing on 15 April 2024 and ending on 14 September 2024.
(10)On Count 26 (SCCAN2023/46) of burglary by way of joint commission the offender is convicted and sentenced to 14 months imprisonment rounded down from 18 months imprisonment for the plea of guilty commencing on 15 July 2026 and ending on 14 September 2027.
(11)On Count 27 (CC2022/7052) of theft by way of joint commission the offender is convicted and sentenced to 8 months imprisonment rounded down from 10 months imprisonment for the plea of guilty commencing on 15 July 2026 and ending on 14 March 2027.
(12)On Count 28 (CC2022/7221) of dishonestly driving or riding in a motor vehicle without consent the offender is convicted and sentenced to 5 months imprisonment reduced from 6 months imprisonment for the plea of guilty commencing on 15 July 2026 and ending on 14 December 2026.
(13)On the charge (CC2022/9551) of entering an intersection when the traffic light was red the offender is convicted and fined $600 with no time to pay.
(14)On the charge (CC2022/9565) of exceeding the speed limit by more than 45km/h the offender is convicted and fined $900 with no time to pay.
(15)On the charge (CC2022/9566) of exceeding the speed limit by more than 45km/h the offender is convicted and fined $900 with no time to pay.
140․This is a total sentence of 4 years and 8 months imprisonment. The non-parole period starts on 15 January 2023 and ends on 14 December 2024.
| I certify that the preceding one hundred and forty [140] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor Associate: Date: 18 October 2023 |
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