Director of Public Prosecutions v Lucas
[2023] ACTSC 335
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Lucas |
Citation: | [2023] ACTSC 335 |
Hearing Date: | 5 June 2023 |
Decision Date: | 14 June 2023 |
Before: | Refshauge AJ |
Decision: | (1) Adam Lucas be convicted of the sentence of burglary (CAN 8639/22) and sentenced to 28 months imprisonment to commence on 10 June 2023 and end on 9 October 2025. (2) Adam Lucas be convicted of using a carriage service to menace, harass or cause offence (CAN 9426/22) and sentenced to six months imprisonment to commence on 10 July 2025 and end on 9 January 2026. (3) Adam Lucas be convicted of burglary (CAN 10716/22) and sentenced to 18 months imprisonment to commence on 10 April 2025 and end on 9 October 2026. (4) Adam Lucas be convicted of the offence of theft (CAN 11390/22) and sentenced to seven months imprisonment to commence on 10 May 2026 and end on 9 December 2026. (5) Adam Lucas be convicted of the offence of theft (CAN 11395/22) and sentenced to seven months imprisonment to commence on 10 July 2026 and end on 9 February 2027. (6) Adam Lucas be convicted of the offence of theft (CAN 11632/22) and sentenced to six months imprisonment to commence on 10 October 2026 and end on 9 April 2027. (7) Adam Lucas be convicted of the offence of minor theft (CAN 12326/22) and sentenced to three months imprisonment to commence on 10 February 2027 and end on 9 May 2027. (8) Adam Lucas be convicted of the offence of minor theft (CAN 12393/22) and sentenced to three months imprisonment to commence on 10 March 2027 and end on 9 June 2027. (9) Adam Lucas be convicted of the offence of minor theft (CAN 1690/22) and sentenced to two months imprisonment to commence on 10 April 2027 and end on 9 June 2027. (10) Adam Lucas be convicted of the offence of minor theft (CAN 1691/23) and sentenced to two months imprisonment to commence on 10 April 2027 and end on 9 June 2027. (11) Adam Lucas be convicted of the offence of minor theft (CAN 1692/23) and sentenced to two months imprisonment to commence on 10 April 2027 and end on 9 June 2027. (12) Adam Lucas be convicted of the offence of minor theft (CAN1693/23) and sentenced to two months imprisonment to commence on 10 April 2027 and end on 9 June 2027. (13) Adam Lucas be convicted of the offence of minor theft (CAN 1694/23) and sentenced to two months imprisonment to commence on 10 April 2027 and end on 9 June 2027. (14) Adam Lucas be convicted of the offence of minor theft (CAN 1695/23) and sentenced to two months imprisonment to commence on 10 April 2027 and end on 9 June 2027. (15) Adam Lucas be convicted of the offence of minor theft (CAN 1696/23) and sentenced to two months imprisonment to commence on 10 April 2027 and end on 9 June 2027. (16) A Treatment Order be made under s 12A of the Crimes (Sentencing) Act2005 (ACT) for Adam Lucas in respect to the primary offence of burglary (CAN 8639/22) of which he has been convicted and for which he has been sentenced to 28 months imprisonment. (17) That order be extended to the other offences of using a carriage service to menace, harass or cause offence (CAN 9426/23), burglary (CAN 10716/22), theft (CAN 11390/22), theft (CAN 11395/22), theft (CAN 11632/22), minor theft (CAN 12326/23), minor theft (CAN 12393/23), minor theft (CAN 1690/23), minor theft (CAN 1691/23), minor theft (CAN 1692/23), minor theft (CAN 1693/23), minor theft (CAN 1694/23), minor theft (CAN 1695/23) and minor theft (CAN 1696/23) of which he has been convicted and for which he has been sentenced and which are associated offences of the primary offence. (18) It be noted that the convictions and sentences imposed for the primary and associated offences have been recorded and are hereby incorporated into the Drug and Alcohol Treatment order in the custodial part of that order. (19) The Drug and Alcohol Treatment Order be for three years 11 months and 27 days from today, 14 June 2023, to 9 June 2027. (20) The Treatment and Supervision part of the Drug and Alcohol Treatment Order be for two years from today, 14 June 2023, until 13 June 2025. (21) The Custodial part of the Drug and Alcohol Treatment Order for the primary and associated offences be hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 14 June 2023, until 9 June 2027. (22) Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT) Adam Lucas be required to sign an undertaking to comply with the offender's good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the treatment and supervision part of the Drug and Alcohol Treatment Order, that is 14 June 2025, until the end of the total sentence, 9 June 2027, with a probation condition that he accept supervision by the commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate, and obey all reasonable directions of the person supervising him, including as to alcohol and drug testing, counselling and treatment. (23) For the treatment and supervision part of the Drug and Alcohol Treatment Order: (a) The core conditions of the order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed. (b) Adam Lucas undertake any program, treatment or counselling, including for his mental health, alcohol and drug testing or case management that may be required by any member of the Treatment and Supervision Team, and obey all reasonable directions of any member of that team about where he resides, with whom he associates, and his attendance from time to time. (c) Adam Lucas not to return a positive test sample under alcohol and drug testing. (d) Adam Lucas comply with any directions of the court from time to time about attendance in court in person or by electronic means. (24) Adam Lucas be directed to sign a sealed copy of this order and an undertaking to comply with the order, and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this order is in force before he leaves the Court. (25) Adam Lucas be directed to appear in person or by electronic means in Court on Friday, 16 June 2023, at 11.30 am. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – use of carriage service to menace, harass or cause offence – burglary – theft – minor theft – substantial criminal history – offending associated with drug use – Drug and Alcohol Treatment Order made |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), ss 7, 10, 12A, 33, 35, 80S, 80W |
Cases Cited: | Australian Securities and Investments Commission v Narain [2008] FCAFC 120; 169 FCR 211 R v Horne [2017] ACTSC R v John [2017] ACTSC 144 R v Massey (No 1) [2020] ACTSC 256 R v McHughes (No 3) [2023] ACTSC 344 Saga v Reid and Collett [2010] ACTSC 59 |
Parties: | Director of Public Prosecutions ( Crown) Adam Lucas ( Offender) |
Representation: | Counsel C Daly ( Crown) J McGuire ( Offender) |
| Solicitors ACT Director of Public Prosecutions Canberra Criminal Lawyers ( Offender) | |
File Numbers: | SCC 36 of 2023 SCC 37 of 2023 |
REFSHAUGE AJ:
Introduction
1․Clearly violence, especially sexual violence and violent death, excites the interests of the community, but dishonesty offences also have serious consequences for the community. Judges who sentence offenders often hear distressing stories of the effects of home invasions through burglary offences and the pain and often severe inconvenience suffered by the loss of important and treasured items.
2․The impact on insurance premiums and the effort often needed to make claims are also consequences of such offending that both the community more widely, as well as victims, suffer. All this has a chilling effect on the peace and comfort of the community, as well as impacting on the trust and feelings of security that help create a successful and happy society.
3․Now appearing for sentence is Adam Lucas who has pleaded guilty to 15 offences, all but one being dishonesty offences. There are two offences of burglary, three offences of theft and nine offences of minor theft, that is, theft of property valued at $2,000 or less, still a reasonably significant amount in these days of economic stress, and the non-dishonesty offence, an offence of using a carriage service to menace, harass or cause offence.
4․On sentence, the prosecution, ably represented by Ms C Daly, tendered without objection the prescribed Prosecution Tender Bundle. Behind the helpful cover sheet, with its summary of significant matters, the Bundle included the committal and transfer documents, an agreed statement of facts, and the criminal history of Mr Lucas.
5․Mr Lucas had sought that any sentence of imprisonment be served by a Drug and Alcohol Treatment Order (Treatment Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
6․Accordingly, on 31 March 2023 the Court had ordered that the Drug and Alcohol Treatment assessments (Suitability Assessments) be prepared under s 46J of the Sentencing Act. Those Suitability Assessments were also included in the Prosecution Tender Bundle. They were a Drug and Alcohol Sentencing List Suitability Assessment Report dated 8 May 2023 of Alcohol and Drug Services with a Case Plan for Mr Lucas, and a Drug and Alcohol Treatment Assessment dated 26 May 2023 of the ACT Corrective Services. None of the contents of these documents were challenged or controverted.
7․The prosecution also provided thoughtful written submissions, and Ms Daly and Mr J McGuire, counsel for Mr Lucas, made oral submissions engaging very helpfully and respectfully in debate with the Court in answering its questions. From this material the following findings are made.
The Facts
8․In March 2022, Mr Lucas befriended a resident of an apartment complex in Phillip, ACT, and began staying with him. Between 12 June and 31 August 2022, he entered 14 storage cages in the underground car park of the units. He used a special tool to do so and would bend the lock mechanism to enable him to enter. He did not steal property from four of the storage cages, but he did steal property from the other 10 of them.
9․For those from which he stole property, the property was of a wide variety of items from musical instruments, clothing, tools, sporting equipment, valuable comic books and other items, wine and fishing equipment, bicycles and snow gear. The value of those, for which a value was given, range from $388, through to $400, $829, $1,100, $1,750 and $2,000. In five of the 10 cages where property was taken, the property was recovered.
10․These were the facts that founded the offences of the first burglary as a rolled-up offence, and the associated thefts, two offences, and minor theft, eight offences.
11․While living with the resident in the Phillip apartment block, Mr Lucas attempted to coerce the resident to join him in this orgy of dishonest criminality. The resident was unenthusiastic but was forced to act as a 'look out' from time to time. Gradually, Mr Lucas began storing large amounts of property in the Phillip apartment. The resident was very frightened of Mr Lucas, making up excuses to avoid becoming involved and to get him to move the stolen property out of the apartment. Finally, the resident stopped interacting with Mr Lucas, as Mr Lucas began sending messages containing threats that he would go to the residence, kick the door in and bash the resident.
12․The resident finally went to Woden police station on 1 September 2022 to report the stolen property being stored in his apartment and that Mr Lucas had been sending threatening messages to him. He showed the police a number of the messages sent to him on his phone that were harassing and abusive and full of crude language. It is not necessary to repeat the substance of them. The resident also described that Mr Lucas had admitted to him that he had stolen the property. This was the conduct that led to the charge of using a carriage service to menace, threaten, harm or cause offence.
13․The resident further explained to the police that Mr Lucas was selling or swapping the stolen goods to other people who would on-sell them or to sell them online, through online services such as Gumtree and online marketplaces. The resident provided consent to police to visit his apartment, which they did, and identified Mr Lucas’ items. Police seized a number of items which had been stolen.
14․Between 9 and 13 September 2022, Mr Lucas entered two garages in the apartments of another location in Phillip. He broke into one garage, from which he stole one case and a bag, and another garage, from which he stole tools and some fishing equipment. Some of this property was recovered.
15․These facts led to Mr Lucas being charged with a burglary of those premises, again as a rolled up charge for the two garages, and with minor theft, though the value of the property was unknown.
16․Police executed a search warrant at the premises in Phillip to which Mr Lucas had moved on or about 1 September 2022. There was an occupant there who said that Mr Lucas had stolen property and had also broken into storage units and taken the property. Police seized a number of items of property that had been stolen from various storage cages and the garages. Later police visited a store, Cash Converters in Phillip, and the staff of the store provided the Police with a list of the property that Mr Lucas had sold to that company.
17․On 24 August 2022, Mr Lucas was arrested by police. He was interviewed and denied some of the allegations put to him about property at the first apartment in which he had lived in Phillip. He tried to suggest that another person had been responsible for bringing the stolen property into the apartment. It is not clear on the evidence, but he did not appear to have been charged at that time.
18․In any event, he was arrested on 31 August 2022 for burglary. He appeared in the ACT Magistrates Court and was granted bail. This offence was not one of the offences for which the Court is now to sentence him. It may be that the charge was withdrawn when the rolled up count was preferred.
19․Mr Lucas was granted bail in the Magistrates Court and, apart from when he was arrested on 24 August 2022, and then on 31 August 2022, and on 23 September 2022 (granted bail on 24 September 2022), being a total four days in custody, he has not been in custody on these charges.
The proceedings
20․Being able to trace the proceeding completely is not possible in this case on the evidence before the Court, but it is also probably not necessary. The matters that are important for sentence can be adequately identified. Part of the problem is that the charges now before the Court were, it appears from the annotation in the cover sheet to the Prosecution Tender Bundle, the result of negotiations. Such negotiations not infrequently lead to the termination of some charges and the laying of others; for example, the material in evidence shows that at one stage, five charges of burglary were preferred, but only two are now for sentence, being rolled up counts.
21․As noted above, Mr Lucas was arrested on 24 August 2022 and then on 31 August 2022. There is no evidence of what, if any, charges were then laid, and no indication of whether he appeared in Court. That he was arrested, however, means that he was taken into custody.
22․Under s 212 of the Crimes Act 1900 (ACT), an arresting officer must have a suspicion on reasonable grounds that Mr Lucas has committed an offence, and under s 222 of the Crimes Act, Mr Lucas must be informed of the offence for which he is to be arrested. Of course, under s 212(3) of the Crimes Act, the person arrested may not necessarily be charged if the police officer ceases to have reasonable grounds for suspecting that he has committed the offence or if it is not necessary to take him into custody. Nevertheless, the arrest is the taking into custody in respect of this investigation which led to the current offences, and this would seem to come within the notion of being 'in custody in relation to the current offence' for the purpose of pre-sentence custody.
23․These words 'in relation to' are words of wide import: see Australian Securities and Investments Commission v Narain [2008] FCAFC 120; 169 FCR 211 at 222; [68]. Especially in relation to a fundamental issue such as the liberty of the subject, they should not be given a narrow meaning. Thus, Mr Lucas has been in custody for one day in respect of each of the arrests on 24 August 2022 and 31 August 2022.
24․His arrest on 31 August 2022 is confirmed in the bench sheet for the charge of burglary at the first Phillip premises from the storage cages in the underground car park. It appeared that he was granted police bail and required to return on 28 September 2022, thus he was in custody on 31 August 2022; that is, the one day referred to above.
25․As noted above, he was subsequently arrested on 23 September 2022 on another charge. The charge of burglary, though listed for 28 September 2022, was mentioned on that day, 24 September 2022, and he was granted bail. The mention on 28 September 2022 was vacated.
26․In respect of the charge of using a carriage service to menace the Phillip resident, he was arrested on 23 September 2022 and appeared in Court on 24 September 2022, the appearance as mentioned above. He was then also granted bail. This was a further two days in custody. Accordingly, as noted above at [19], he has been in custody for a total of four days, and these shall be taken into account on sentence.
27․The first charge that was laid against him of the charges now before the Court was the charge of using a carriage service to menace when Mr Lucas was in Court on 24 September 2022. He appears to have been granted bail and the proceedings were adjourned. Subsequently the charge of burglary, the first charge of burglary, was also mentioned on 24 September 2022 and he was granted bail.
28․The proceedings were also adjourned to the date to which the earlier charge had been adjourned. Subsequently, and it might be summarised as a result of the negotiations, he was charged with a second count of burglary on 11 December 2022, the three counts of theft on 2 December 2022, the first charge of minor theft on 11 January 2023, and the remaining seven counts of minor theft on 15 February 2023. It may be surmised that the other charges not now before this Court were dismissed. He had entered no pleas to any of the charges to this date and no brief of evidence had to be prepared by the prosecution.
29․On 15 February 2023, however, he entered pleas of guilty to all of these offences, the later seven offences of minor theft having only been preferred on that day so his pleas to those offences were the earliest pleas that could have been entered. He was committed for sentence and the summary offences transferred as related charges for sentence to this Court.
30․On 31 March 2023 he was found eligible to be considered for a Treatment Order and Suitability Assessments were directed to be prepared and a date set for sentence.
The Offences
31․It is, of course, critical for a Court sentencing an offender to find the facts on which the charges for which the offence is to be sentenced has been based. That has been done. It is, however, not the end of the inquiry. It is also important to find the objective seriousness of the offences and to have regard to the subjective circumstances of the offender. These matters which, together with matters such as the significance, if any, of the pleas of guilty or any plea of not guilty, whether the offender committed the offences, the offence or offences in particularly aggravating circumstances such as while at conditional liberty and so on will be taken into account on sentence.
32․As to the objective seriousness, this is a mandatory requirement under s 33(1)(a) of the Sentencing Act, where it is referred to as the nature and circumstances of the offence. There are two aspects of this.
33․The first is a most important part of the consideration, namely, the maximum penalty. It is, after all, the legislated indication both of the penalty for the worst category of the offence, but also a measure of the comparative seriousness that the community considers arises in comparison to all other criminal offences. Further, taken with all of the other relevant factors, it provides a yardstick.
34․The second matter arises because most criminal offences can be committed in a wide variety of ways and in diverse circumstances. Thus, the relevant factors that help determine the seriousness, or nature and circumstances of the offence, are very important. These are determined by the Courts when sentencing offenders or considering appeals from sentences. The Courts then, as part of current sentencing practice, and also a mandatory consideration under s 33(1)(za) of the Sentencing Act, can use these factors to help determine the objective seriousness.
35․Burglary is an offence contrary to s 311 of the Criminal Code 2002 (ACT) and attracts a maximum penalty of 14 years imprisonment or a fine of $224,000 or both. It is, therefore, a serious offence, but not the most serious. The seriousness, in part, comes from the invasion of private spaces where people or their property should be secure. The relevant factors have been set out in R v McHughes (No 3) [2023] ACTSC 344 at [28] after considering a number of the relevant authorities. It is not necessary to set out all of those factors, but to address the relevant ones.
36․The location of the burglaries is highly relevant. Though not commercial premises, the least serious, they are not actual residential premises, but adjacent to them, being storage cages in an underground car park, the first burglary, and adjacent garages, the second burglary. They are more serious than commercial premises, but less serious than would be the actual residences if he had trespassed into them.
37․There was some damage done to the locks on entering, though there was no value ascribed to that. It seems likely, in the absence of specific evidence, to have been of a modest cost. There was no evidence of damage done while Mr Lucas was in the premises.
38․The time of the offending was not in evidence for most of the occasions, though there was some evidence, and it seemed to be at night, especially late in the night, when occupants were unlikely to be present. There was no confrontation at any of the times between Mr Lucas and any of the occupants.
39․The burglaries were committed to allow Mr Lucas to fund his drug habit and, while there was a pattern of behaviour in which he continued to engage, there was not a high level of organisation or sophistication, though he did have a method of selling the property, but that is one that is widely available. He did, however, arm himself with a tool that he used to force the locks. The pattern did suggest that the storage cages had been targeted, though the individual ones had not been the subject of earlier or repeated burglaries by Mr Lucas.
40․There was no indication of special trauma suffered by the victims and there were no Victim Impact Statements. The taking of some of the property would have had a severe effect on some of the owners, such as the loss of musical instruments, the valuable comics, clothing and other hobby equipment.
41․The two burglaries were rolled up counts, that is to say they were individual cases of trespass with intent to steal, each of which could have been charged as a separate offence but were charged as the one offence. This has significant benefit for Mr Lucas, but also some benefit for the administration of justice: McLeod v The Queen [2018] ACTCA 59 at [19]-[20]. The approach to sentencing such counts has been set out in R v John [2017] ACTSC 144 at [107] as follows:
·for sentencing purposes, the rolled up count is one charge and the sentence may not exceed the maximum penalty for the offence charged.
·nevertheless, the criminality encompassed within the count is greater than were the count to be constituted by only one offence.
·the sentence is not necessarily, and perhaps not usually, the sum of the sentences that would be imposed for the offences comprising the count, though in an appropriate case it may be; and
·the fact that the count is a rolled up count may have a bearing on the application of the relevant principles as to accumulation or concurrency.
The first burglary had a large number of counts, many more than the second burglary, which will require a more serious sentence.
42․Using a carriage service to menace, harass or cause offence is prohibited by s 474.17 of the Criminal Code Act 1995 (Cth), which prescribes a maximum penalty of five years imprisonment. It is, thus, a moderately serious offence, but still significant and for which a sentence of imprisonment can be imposed. Here, included relatively serious threats and certainly offensive language and comments. The threats did make the recipient, the resident of the Phillip apartment, fearful. He knew that Mr Lucas had used force during the burglaries. He felt vulnerable because he had befriended Mr Lucas and that had put him in a difficult position doing things that could have exposed him to criminal penalties.
43․Theft is a criminal offence under s 308 of the Criminal Code 2002 (ACT), which renders Mr Lucas liable for a maximum penalty of 10 years imprisonment or a fine of $160,000 or both. It is, thus, a serious offence, but largely because it includes in its range the theft of very valuable property worth a large amount of money, perhaps hundreds of thousands of dollars, as well as less valuable property worth up to trivial amounts.
44․In this case the value has not been determined. The only clue is that all of the other thefts were charged as minor thefts; that is, of property of less than $2,000 in value. Considering the actual property stolen, it seems likely that they were more valuable than that, but not significantly so.
45․The value, of course, also includes personal value, such as sentimental value: see R v Hawkins [2015] ACTSC 333 at [48]. There was no evidence to suggest that any of the property had a particular sentimental or other personal value. In general terms, the theft that is associated with the burglary will be visited with a sentence that is concurrent or largely concurrent with the offence of burglary with which it is associated: see Dawson v The Queen [2019] ACTCA 9 at [35].
46․Section 321 of the Criminal Code 2002 (ACT) makes minor theft, that is theft of property of less than $2,000 in value, a crime punishable by a maximum of six months' imprisonment or a fine of $8,000 or both. The value of the property, as noted above, is a critical factor. In this case, the value of some items reached $2,000 or close to that. Some were of much less value.
Subjective Circumstances
47․The second fundamental matter for sentencing is the personal circumstances of the offender. A number of the paragraphs in s 33(1) of the Sentencing Act address that.
48․Mr Lucas was born 44 years ago, one of five children of his parents. He lived with his parents until he was 39 years old. His parents remain married. He had an unremarkable childhood and described a positive upbringing in the home environment, though he described himself as “just angry with the world”. He was, however, [redacted for legal reasons]. His parents did not initially believe him, but later did accept it. It was reported to the police and the perpetrator was convicted and sentenced to imprisonment. He has a good relationship with his mother, but less so with his father who has a reserved personality.
49․He completed year 9 at school and was bullied, leading to disengagement and also leading to him associating with “criminal groups”. He is relatively illiterate, though has been attending reading and writing classes in Canberra on a voluntary basis each week.
50․The increase in criminal activity also led to illicit drug use. He was, as a result, subject to two home invasions, one in 2006 and the other in 2008. They left him greatly traumatised and may have led to him suffering Post-Traumatic Stress Disorder. In the earlier burglary he also suffered severe head and shoulder injuries. It is regrettable that being a victim of home invasion did not lead Mr Lucas to understand that burglaries have the same effect on others, his victims, although he did say that he would not have gone into the actual homes but kept to garages and storage cages. That may be a result of his experience.
51․He left home at age 39 to move to Canberra to try and cease the antisocial activity in which he had engaged, but that has clearly not been successful. Mr Lucas has been single for about five years. Prior to that he had a number of short-term relationships. He believes that he may have a 13-year-old daughter, but that is not clear.
52․He has had casual employment. He worked as a kitchen hand in a club for about three years and has also had casual employment as a removalist. He has a package from the National Disability Insurance Scheme but is unsure of the details.
53․Apart from the discomfort of the consequences of his injury, he has no other physical ailments. His mental health is a little more problematic. He has had little formal contact with the mental health system and not since he lived in Sydney. A psychiatric review may be required as he presents with numerous vulnerabilities and complex mental health needs.
54․Mr Lucas started using alcohol at age 16 in a social setting, but it has not been a problem for him. He first smoked cigarettes when he was 13 years old and now uses vapes daily, consuming four cartridges a day. He was also introduced to cannabis when he was 13 years old and used daily. He smoked three cones a day for a long time, but last used prior to his arrest in August 2022. His use of amphetamine began when he was 20 years old. He had already been using methamphetamine since the age of 15 years old, up to half a gram a day. He used on the days of his offending but has not used since. This is his major drug of choice and the major issue for him. He ceased using methamphetamine about 15 years ago. He has used some other drugs, but they have not been a problem for him and there was only limited use of them.
55․Mr Lucas has attended residential rehabilitation. He has attended the William Booth House program in Surry Hills, a New South Wales alcohol, tobacco and other drug residential program, undertaking the program for eight months, which he completed in 2016. He completed the Canberra Recovery Services (CRS) residential alcohol, tobacco and other drug program in 2019. He completed the CRS day program of 12 weeks on 6 April 2023. He has also engaged with Narcotics Anonymous, though his current bail conditions have limited that.
56․His criminal history totals 19 offences, all committed in New South Wales and commencing when he was 18 years old. It includes nine offences of dishonesty, six drug related offences and two driving offences. He has convictions for stealing, larceny and possessing goods suspected of being stolen. He has no history of burglary offending. He has not been convicted of any offences of violence.
57․Mr Lucas was generally prompt and cooperative with the conferences for the Suitability Assessments. He was described as “polite, engaged and insightful throughout” and “generally forthcoming with information” though he was somewhat forgetful and at times declined to discuss some issues. He was sometimes quite emotional during the conferences.
Current Sentencing Practice
58․The Court sentencing an offender is required to consider current sentencing practice insofar as it knows it: s 33(1)(za) of the Sentencing Act. Some of this is available from the ACT Sentencing Database which is a helpful record of many sentences imposed in this jurisdiction. There are also some links to the actual sentencing remarks which set out in greater detail relevant factors, many of which are not recorded in the database, and the principles by which the Court approaches the sentence. The criticisms and limitations of the ACT database have been discussed in R v Horne [2017] ACTSC at [49]-[53], R v Massey (No 1) [2020] ACTSC 256 at [73]-[74] and R v Weldon [2021] ATCSC 348 at [82]-[83]. Nevertheless, the information is helpful, especially at a general level, and has been used in a number of cases. Thus, in R v Elphick [2021] ACTSC 9 at [154] the Court said:
The limitations on sentencing statistics are well-known, however, for what they are worth, sentencing statistics show that, in relation to sentences imposed in the Supreme Court, when the penalty that is imposed is imprisonment:
…
(b) the offence of burglary usually results in a sentence of between 12 months' and three years and six months' imprisonment.
…
(e) the offence of theft usually results in a sentence of six to 18 months' imprisonment.
59․The other way to address this issue is by using comparable cases. Neither counsel referred the Court to such cases. This is not surprising, given that the circumstances of this case are quite unusual.
Consideration
60․The matters that have already been addressed are the primary factors that the Sentencing Act requires the Court sentencing an offender to address. These are, of course, matters that point in different directions, such as the seriousness of the offending and the efforts, though largely unsuccessful, that Mr Lucas has taken to address his primary criminogenic risk, namely, drug use.
61․The instinctive synthesis, which is the sentence that must be imposed, is constituted by bringing these factors together, balancing them and coming to a single penalty for each offence. This difficult task is made somewhat easier by the identification of the purposes for which the sentence may be imposed. Those purposes are found in s 7 of the Sentencing Act.
62․The serious invasion of the rights to security, especially of the property of the victims, being in the storage cages and the garages, requires that there be some element of punishment in the sentence. Such a sentence will also serve to denounce the offending, which is a significant breach of the norms of the community. A severe sentence may also have the effect of deterring others in the community who may be minded to commit such offences themselves. There is debate about whether such sentencing can be effective as general deterrence and it is not clear: Lloyd v The Queen [2022] NSWCCA 18 at [40].
63․The sentence must, of course, make Mr Lucas accountable for his actions and it is clear that he has accepted responsibility for them. He is the responsible one, who has committed these offences. A sentence may also deter him from committing such offences in the future. Nevertheless, Mr Lucas has been able, in the past, to know that he had to address the drug use which was a significant contributor to his offending and has made attempts to do so, including residential rehabilitation. If a more permanent rehabilitation can be achieved, it will be a better protection for the community which is not only one of the statutorily specified purposes of sentencing, but also the overall purpose of the current criminal law.
64․Further, in order to impose a sentence that is just and adequate, the factors set out in s 33 of the Sentencing Act must be carefully considered. The nature and circumstances of the offences have already been set out in the findings of the facts constituting the offending and the assessment of the objective seriousness of them. Mr Lucas's personal circumstances have also been considered, as also found in these remarks.
65․Mr Lucas pleaded guilty in the ACT Magistrates Court. For all except the last seven offences of minor theft, to which he pleaded guilty at the earliest opportunity, the others were after some time in Court, but not after a plea of not guilty; thus, a discount should be provided: see s 35 of the Sentencing Act. The utilitarian value of such pleas is a factor to be considered and this will be greater for the later seven offences.
66․The case against Mr Lucas was strong. There was the evidence of the resident who may have been a co-offender. Mr Lucas was also found with the property in his possession. There was some blood found in some of the storage cages which, on analysis, matched his DNA. It was strong evidence but did not rise to the level of overwhelming; thus, he is entitled to a significant discount on the sentence.
67․The fact that Mr Lucas was introduced to drugs at an early age, before he could give an informed consent, is relevant. It is not mitigating of the seriousness of the offences, but it does reduce his moral culpability: see Douglas v The Queen (1995) 50 FCR 465 at 470. Similarly, the failure of his earlier attempts and the temporarily successful rehabilitation does not mean that rehabilitation does not still have a place to play in the sentence. It is notorious that a pernicious matter, such as drug dependency, can take many efforts to address and failures do not prevent further attempts so long as there is a rational reason for them: see Saga v Reid and Collett [2010] ACTSC 59 at [89]. Though initially reluctant, Mr Lucas has expressed some remorse and a little empathy. It is, but it is only, a beginning.
68․The period of pre-sentence custody of four days must be taken into account.
69․Having regard to the seriousness of the offences and to all of the other relevant factors, including Mr Lucas's personal circumstances, and having considered all of the alternatives, it is clear that no sentence but a sentence of imprisonment must be imposed: see s 10 of the Sentencing Act.
70․There are, however, 15 offences for which a sentence must be imposed. Each of them must be subject to a just and adequate sentence in themselves. Then the factors that may justify some concurrency between the sentences must be considered.
71․Thus, where there is a course of conduct, that may justify a degree of concurrency. That does not really apply here. The offences were separate, although those that were together have been charged in a rolled up charge, and the offences of theft or minor theft that follow them are, nevertheless, associated with them as part of that criminality. There was ongoing criminality both in relation to the burglaries and theft from the storage cages and at the garages, but it was not really a course of conduct. Where there are common elements also, this may require concurrency, and this is true in relation to the burglaries and the thefts.
72․Finally, however, the important sentence principle of totality must be respected and the Court has had what is sometimes called 'the last look' to see that the whole of the sentence adequately reflects the total of the criminality, but no more than that, and that the sentence must not be crushing, but will leave open the hope of a useful life after the custodial part of the sentence and the achievement of his goals when released: see Sampson v The Queen [2018] ACTCA 67 at [36]. If this requires a level of concurrency, it may seem lenient, but it is an expression of justice and must show that the sentence is fair to the offender, the victims and to the community, and properly balances all of the considerations, including both the seriousness of the offence and Mr Lucas's personal circumstances.
[His Honour spoke directly to the offender]
73․Mr Lucas, please stand.
(1)I convict you of the sentence of burglary (CAN 8639/22) and sentence you to 28 months imprisonment to commence on 10 June 2023 and end on 9 October 2025. Had you not pleaded guilty I would have sentenced you to 37 months imprisonment.
(2)I convict you of using a carriage service to menace, harass or cause offence (CAN 9426/22) and I sentence you to six months imprisonment to commence on 10 July 2025 and end on 9 January 2026. Had you not pleaded guilty I would have sentenced you to eight months imprisonment.
(3)I convict you of burglary (CAN 10716/22) and I sentence you to 18 months imprisonment to commence on 10 April 2025 and end on 9 October 2026. That's to be cumulative as to nine months on the sentence for using a carriage service to menace, harass or cause offence. Had you not pleaded guilty I would have sentenced you to 24 months imprisonment.
(4)I convict you of the offence of theft (CAN 11390/22) and sentence you to seven months imprisonment to commence on 10 May 2026 and end on 9 December 2026. That is to be cumulative as to two months on the sentence for burglary. Had you not pleaded guilty I would have sentenced you to nine months imprisonment.
(5)I convict you of the offence of theft (CAN 11395/22) and I sentence you to seven months imprisonment to commence on 10 July 2026 and end on 9 February 2027. That is to be cumulative as to two months on the sentence, the first sentence for theft. Had you not pleaded guilty I would have sentenced you to nine months imprisonment.
(6)I convict you of the offence of theft (CAN 11632/22) and sentence you to six months imprisonment to commence on 10 October 2026 and end on 9 April 2027. Had you not pleaded guilty I would have sentenced you to eight months imprisonment.
(7)For the offence of minor theft (CAN 12326/22) I sentence you to three months imprisonment to commence on 10 February 2027 and end on 9 May 2027. Had you not pleaded guilty I would have sentenced you to four months imprisonment.
(8)I convict you of the offence of minor theft (CAN 12393/22) and I sentence you to three months imprisonment to commence on 10 March 2027 and end on 9 June 2027. Had you not pleaded guilty I would have sentenced you to 34 weeks of imprisonment.
(9)I convict you for the offence of minor theft (CAN 1690/22) and sentence you to two months imprisonment to commence on 10 April 2027 and end on 9 June 2027. Had you not pleaded guilty I would have sentenced you to three months imprisonment.
(10)I convict you of the offence of minor theft (CAN 1691/23) and sentence you to two months imprisonment to commence on 10 April 2027 and end on 9 June 2027. That is to be wholly concurrent with the earlier sentence for minor theft. Had you not pleaded guilty I would have sentenced you to three months imprisonment.
(11)I convict you of the offence of minor theft (CAN 1692/23) and sentence you to two months imprisonment to commence on 10 April 2027 and end on 9 June 2027. That is also to be wholly concurrent on the earlier offence of minor theft. Had you not pleaded guilty I would have sentenced you to three months imprisonment.
(12)I convict you of the offence of minor theft (CAN1693/23) and sentence you to two months imprisonment to commence on 10 April 2027 and end on 9 June 2027. That is to be wholly cumulative on the sentence for the earlier offence of minor theft. Had you not pleaded guilty I would have sentenced you to three months imprisonment.
(13)I convict you of the offence of minor theft (CAN 1694/23) and sentence you to two months imprisonment to be wholly cumulative to commence on 10 April 2027 and end on 9 June 2027. That is to be wholly cumulative on the earlier offence of minor theft. Had you not pleaded guilty I would have sentenced you to three months imprisonment.
(14)I convict you of the offence of minor theft (CAN 1695/23) and sentence you to two months imprisonment to commence on 10 April 2027 and end on 9 June 2027. Had you not pleaded guilty I would have sentenced you to three months imprisonment.
(15)I convict you of the last offence of minor theft (CAN 1696/23) and sentence you to two months imprisonment to commence on 10 April 2027 and end on 9 June 2027. That is to be wholly concurrent on the earlier sentence for minor theft. Had you not pleaded guilty I would have sentenced you to three months imprisonment.
74․That is a total sentence of four years to commence on 10 June 2023 and end on 9 June 2027.
75․Please be seated.
76․Having sentenced Mr Lucas to four years imprisonment, the next question is how that period should be served. In addition to full-time custody, the Sentencing Act provides a number of options from a non-parole period to moderate the sentence, through to an Intensive Correction Order and a Treatment Order or a suspended sentence with a Good Behaviour Order. Since Mr Lucas has sought a Treatment Order, that alternative should first be considered. Neither counsel opposed the making of a Treatment Order; in fact, both suggested that it was appropriate.
77․There are two considerations here.
78․Is Mr Lucas eligible? If so, is a Treatment Order suitable for him, including are there suitable arrangements for such an Order to be administered?
79․The eligibility criteria are set out in ss 12A and 80S of the Sentencing Act. Those in s 80S are really about suitability, including to serve the sentence as a suspended sentence, and suitable arrangements for administration of such an Order. They can, accordingly, be addressed when that second consideration is addressed.
80․As to the eligibility criteria in s 12A of the Sentencing Act, the following are the issues. In the first place, Mr Lucas has pleaded guilty to the offences, each of which is an eligible offence. For the primary offence of burglary, he has been sentenced to 28 months imprisonment, which is more than the minimum eligible period of imprisonment for which a Treatment Order can be made, namely 12 months. Together with the other sentences for the other offences, which are the associated offences, the total period of imprisonment is four years, namely, the maximum eligible period of four years imprisonment.
81․The Suitability Assessment of Alcohol and Drug Services assesses him as likely to have a severe substance use disorder. This is corroborated by his entry into a number of residential drug facilities for which this is an eligibility criterion. It can be accepted that Mr Lucas is dependent on controlled drugs, namely cannabis and methamphetamine. Mr Lucas said that he was using drugs at the time of his offending and that he needed the money for drugs. There was no challenge to this assertion. Accordingly, it can be accepted that the offending was substantially contributed to by his dependency.
82․Mr Lucas has lived for the past five years in Canberra and has not expressed an intention of moving out of Canberra, so, at the present time, it can be accepted that he will be a resident in Canberra for the whole of the term of any Treatment Order.
83․Mr Lucas has also signed the prescribed form of consent to the making of a Treatment Order. In that form, he acknowledges that he has had a clear explanation of such an Order and that the information was sufficient for him to make a balanced judgment about whether to consent to serving his term of imprisonment under such an Order. This is confirmed by the reports of his engagement with the authors of the Suitability Assessments where he asked questions and had those questions answered, which answers he appears to have understood.
84․Accordingly, Mr Lucas is eligible for a Treatment Order to be made for him to serve the sentence of imprisonment imposed on him.
85․Both Suitability Assessments have recommended that he is suitable for a Treatment Order. There is no reason not to accept those recommendations. The Suitability Assessments have identified that a Treatment Order would be beneficial and appropriate for him, especially given his wish to be abstinent. The Suitability Assessments have provided details of an appropriate program of treatment. He has been accepted for admission to such a program.
86․Accordingly, he is suitable for a Treatment Order to be made for service of his term of imprisonment and the case plan shows suitable arrangements for administration. He is suitable to serve the sentence of imprisonment as a suspended sentence. As a result, the Court finds that Mr Lucas is eligible and suitable for a Treatment Order to be made and that there are appropriate arrangements for the administration of such an order.
87․There are no matters under table 46K of the Sentencing Act that would make it inappropriate for a Treatment Order to be made for him.
88․Finally, although the sentence of imprisonment has been partially served for four days from 10 June 2023, and so would be partially suspended today under s 80W of the Sentencing Act, which, nevertheless, requires a sentence of imprisonment to be served by a Treatment Order to be fully suspended, that does not prevent a Treatment Order being made for the reasons set out in R v Crawford (No 1) [2020] ACTSC 245 at [91]-[111].
89․A Treatment Order will, accordingly, be made.
[His Honour spoke directly to the offender]
90․Mr Lucas, please stand again.
(16)I direct that a Treatment Order be made under s 12A of the Crimes (Sentencing) Act2005 (ACT) for you in respect to the primary offence of burglary (CAN 8639/22) of which you have been convicted and for which you have been sentenced to 28 months imprisonment.
(17)That order is extended to the other offences of using a carriage service to menace, harass or cause offence (CAN 9426/23), burglary (CAN 10716/22), theft (CAN 11390/22), theft (CAN 11395/22), theft (CAN 11632/22), minor theft (CAN 12326/23), minor theft (CAN 12393/23), minor theft (CAN 1690/23), minor theft (CAN 1691/23), minor theft (CAN 1692/23), minor theft (CAN 1693/23), minor theft (CAN 1694/23), minor theft (CAN 1695/23) and minor theft (CAN 1696/23) of which you have been convicted and for which you have been sentenced and which are associated offences of the primary offence.
(18)It be noted that the convictions and sentences imposed for the primary and associated offences have been recorded and are hereby incorporated into the Drug and Alcohol Treatment order in the custodial part of that order.
(19)The Drug and Alcohol Treatment order is for three years 11 months and 27 days from today, 14 June 2023, to 9 June 2027.
(20)The treatment and supervision part of the Drug and Alcohol Treatment Order be for two years from today, 14 June 2023, until 13 June 2025.
(21)The custodial part of the Drug and Alcohol Treatment Order for the primary and associated offences be hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 14 June 2023, until 9 June 2027.
(22)Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT) you are required to sign an undertaking to comply with the offender's good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the treatment and supervision part of the Drug and Alcohol Treatment Order, that is 14 June 2025, until the end of the total sentence, 9 June 2027, with a probation condition that you accept supervision by the commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising you considers appropriate, and obey all reasonable directions of the person supervising you, including as to alcohol and drug testing, counselling and treatment.
(23)For the treatment and supervision part of the Drug and Alcohol Treatment Order:
(e)The core conditions of the order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) are hereby imposed.
(f)You are to undertake any program, treatment or counselling, including for your mental health, alcohol and drug testing or case management that may be required by any member of the treatment and supervision team, and obey all reasonable directions of any member of that team about where you reside, with whom you associate, and your attendance from time to time.
(g)You are not to return a positive test sample under alcohol and drug testing.
(h)You are to comply with any directions of the court from time to time about attendance in court in person or by electronic means.
(24)You are directed to sign a sealed copy of this order and an undertaking to comply with the order, and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this order is in force before you leave the Court.
(25)You are directed to appear in person or by electronic means in Court on Friday, 16 June 2023, at 11.30 am.
[His Honour spoke directly to the offender]
91․Mr Lucas, that's a lot of words. I hope you understand quite a lot of it because it's about you and it's about what you have done. At the end of the day, this was a pretty bad set of invasions of people's property and misusing of them, and I think you understand that.
92․Ordinarily that would be four years, less four days, imprisonment from now. In all of the circumstances, however, your commitment to your rehabilitation has justified a Treatment Order, so unless you breach that Order or unless you can't hack it, then you won't have to spend any more time in prison. We're not sending you off to residential rehabilitation. You have been there, but, nevertheless, there will be counselling. There will be case management. There will be regular urinalysis, and you will have to come back to court once a week, every Friday, at least for four months or so.
93․THE PARTICIPANT: Okay.
94․That's intended to help you address this drug dependency. You have tried before. It hasn't worked. Now, you will have extensive intensive treatment and supervision, and hopefully that ongoing supervision for a lengthy period of time will allow you to come to terms with that and address it and be drug free and crime free, and then you can get back into the community and live a fulfilling life.
95․THE PARTICIPANT: I'm working now too.
96․That's great, although the work may need to be put on hold a bit because there are significant obligations that you have got, and those obligations come first. Work comes second.
97․THE PARTICIPANT: Yes.
98․But work is important as we go along. So, hopefully, your employer will be understanding, or if you have to go back on Centrelink for a while, while we get things underway, so be it.
99․THE PARTICIPANT: Okay.
100․There are a few things that are really important. One is, obviously, don't take drugs. We will know because you do urinalysis three times a week and if you do take drugs there are penalties for that. Those penalties can include sending you back to jail for a period of time, up to 14 days. If it's so bad and it's just not working, then I will cancel the order and I will send you back to custody for the balance of these three years, 11 months and a few days. So, I'm not saying that to frighten you or to threaten you, but that's the reality. You're an intelligent man. You understand.
101․THE PARTICIPANT: I know how serious it is.
102․You need to know how the system works. There are a few things that are important. The first one is be conscientious about your treatment order obligations. Be prompt, as you have been. Make sure you keep in contact with your case managers. You will get a letter shortly which sets out your obligations. Now, I understand that reading is not your strongest, but I'm sure Mr McGuire will be able to go through it with you.
103․THE PARTICIPANT: I have got a neighbour who will help me as well.
104․You have got your neighbour but get Mr McGuire to help you. He's a very experienced lawyer and he can help you to understand what the letter is about if there are some things in it that you're not quite sure about.
105․The second thing is don't run away. If it's getting too tough, talk to your case managers. They're good people who will listen to you. They will help you. They won't always agree with you, you know, but they will work with you. They have support that they can give you and they can also recommend other places where you will get support and so on.
106․They can help you think through what's worrying you and work it out. Now, we know that your mental health is not 100 per cent. That's okay. We understand that you might need some support through your GP, perhaps a psychologist or a psychiatrist or something like that. We will try and make those arrangements, but you will probably have to see your GP and you will have to organise most of that yourself.
107․That would be useful to try and do, and if that interrupts your work, probably it's better to get that under control first rather than keep working, although, of course, you need income too. Work that out and Centrelink benefits may be a possibility.
108․So talk to people. Don't run away. Come back to court. If there are problems, raise them. All right? Sometimes you think, 'Look, I'm a man. I'm strong. I don't need to talk about my problems.' No. No. No. No. Talk to people about the problems because they can help you before it becomes a massive problem – all right – before you commit any further crimes and doing silly things.
109․When you come in and see me there's an opportunity for you to say whatever you want, all right, and if there are problems, to discuss them with me. I can sometimes help, not always, as a judge. I have got good powers to do things, but sometimes I can help and sometimes I know where there are resources that you can get help. Sometimes it just can't be helped. The law sometimes is the law, and that's the end of it.
110․The other thing that I really want to emphasise is be honest. All right? Be honest. Telling me lies is an offence, so you know, that's really bad, but telling your case managers things that are not true is not good also, all right, but also be honest with yourself.
111․It's very easy to say, 'This wasn't so bad,' and initially you weren't so fussed about the offending and you weren't so remorseful about the offending, you know, and it can be hard because if you know you have done something wrong you can feel shame, and shame is not a – not a happy feeling that you have got, but shame can be good because it helps you guide when you want to go the straight and narrow and not off track.
112․THE PARTICIPANT: Doing the right thing.
113․That's exactly right. So if you hear what you're saying to yourself and you think, 'That's not honest. This was bad', 'There wasn't an excuse for it. I shouldn't have done it', then that will help you through. All right?
114․THE PARTICIPANT: Okay.
| I certify that the preceding one hundred and fourteen [114] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge. Associate: I Harris Date: 30 November 2023 |
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