Director of Public Prosecutions v Monaghan
[2024] ACTSC 183
•12 June 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Monaghan |
Citation: | [2024] ACTSC 183 |
Hearing Date: | 12 June 2024 |
Decision Date: | 12 June 2024 |
Before: | Taylor J |
Decision: | (1) In relation to the offence of theft (CC2018/13690) the offender is convicted and sentenced to 2 months of imprisonment to start on 12 April 2024 and end on 11 June 2024. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – theft – plea of guilty – not an objectively serious offence – disadvantaged and traumatic childhood – genuine remorse – good prospects of rehabilitation – considerations of parity – extensive criminal history – four year period without offending – backdated to account for time served in custody |
Legislation Cited: | Criminal Code 2002 (ACT), ss 45A, 308 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 Green v The Queen; Quinn v the Queen [2011] HCA 49; 244 CLR 462 Hili v the Queen (2010) HCA 45; 242 CLR 520 Hogan v Hinch [2011] HCA 4; 243 CLR 506 KR v The Queen [2012] NSWCCA 32 Laipato v The Queen [2020] ACTCA 35 Lowe v The Queen (1984) 154 CLR 606 Markarian v R [2005] HCA 25; 228 CLR 357 R v Elphick [2021] ACTSC 9 R v Hall (No 2) [2020] ACTSC 63 R v Johnson [2015] ACTSC 192 R v Kilic [2016] HCA 48; 259 CLR 256 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v McMahon [2019] ACTSC 361 R v Moore [2021] ACTSC 333 R v Nicholas; R v Palmer [2019] ACTCA 36 R v Slattery [2021] ACTSC 154 R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 Saipaini v The Queen [2021] ACTCA 5; 288 A Crim R 191 |
Parties: | Director of Public Prosecutions ( Crown) Aleisha Monaghan ( Offender) |
Representation: | Counsel C Wanigaratne ( DPP) S Lynch ( Offender) |
| Solicitors ACT Director of Public Prosecutions Aboriginal Legal Service ( Offender) | |
File Number: | SCC 76 of 2019 |
EX TEMPORE
TAYLOR J:
Introduction
1․The offender, Aleisha Monaghan, is to be sentenced for one charge of theft committed in 2017.
2․On 10 July 2019 the offender entered a plea of guilty to the following offence:
(a)Count 2 (CC2018/13690): Theft contrary to s 308 of the Criminal Code 2002 (ACT) (the Criminal Code), by virtue of s 45A of the Criminal Code, which carries a maximum penalty of imprisonment for 10 years, 1000 penalty units or both.
3․On 21 January 2020, a notice declining to proceed on a related charge of aggravated robbery (CC2018/12549) was filed.
4․The matter was listed for sentence on 29 August 2019. The offender did not attend Court on this date and a warrant for her arrest was issued. On 28 March 2024, the offender presented herself to the ACT Supreme Court. The warrant was withdrawn and the matter listed for sentence.
Facts
5․At about 12:51pm on 23 August 2017, the offender and Ms Dixon (the co-offender) entered the Paul’s Warehouse store located at Unit 7-8, 23-25 Iron Knob Steet, Fyshwick in the ACT (‘Paul’s Warehouse’). At this time, two employees of Paul’s Warehouse, Ms Dowling and Ms Knight were working at the service counter. The offender was wearing a long-sleeve pink top and grey tights. The co-offender was wearing a black top, blue tights and ‘Skechers’ brand shoes. The co-offender was also carrying a large black sports bag that appeared to be empty. Ms Dowling and Ms Knight recognised the offender from previous interactions with her. Ms Dowling said to Ms Knight, “Keep an eye on them. Just watch them. They have been in here like this before”.
6․While inside Paul’s Warehouse, the offender and co-offender took the following pairs of shoes and placed them in the black sports bag:
(a)One pair of grey ‘Asics Zaraca’ brand shoes valued at $149.99; and
(b)Two pairs of navy/blue and orange/black ‘Asics Patriots’ brand shoes valued at $129.99 each.
7․The offender and the co-offender then approached the exit of Paul’s Warehouse without making any effort to pay for the shoes. When Ms Dowling saw the offender and co-offender attempting to leave the store with what appeared to be a full sports bag, she left the service counter and walked towards the two women. She said, “Can I check your bag please”. The offender and co-offender did not respond and they continued walking toward the exit. Ms Dowling repeated her request to check their bag, and this time the co-offender replied, “Nup, nup”. Ms Dowling followed the offender and the co-offender as they exited Paul’s Warehouse and entered the carpark. At this point, the co-offender repeatedly told Ms Dowling that she could not touch her. Ms Dowling saw that the black sports bag the co-offender was carrying was not fully closed and she saw part of a pair of ‘Asics Patriots’ brand shoes inside the bag. Ms Dowling said to the co-offender, “Can I see your bag, I can see you have stolen items. Just give them back”.
8․About this time, Ms Knight had come out of Paul’s Warehouse. Ms Dowling asked Ms Knight to get a manager. The co-offender started running through the carpark and Ms Dowling started to pursue her. Ms Dowling heard the co-offender shout words to the effect of, “let’s go, let’s go!”.
9․At this time, a white dual cab ute, with a tub tray in the rear, came off Iron Knob Street and stopped at the corner of Paul’s Warehouse in the carpark. The co-offender threw the black sports bag in the tub tray of the ute and then entered the passenger side of the vehicle.
10․Ms Dowling ran to the ute, grabbed the sports bag and flung it out of the ute. As Ms Dowling retrieved the sports bag, she was set upon by the co-offender. Ms Dowling ended up lying on the ground on her left side with the sports bag still in her arms. At this point, the co-offender started to kick and stomp Ms Dowling’s neck and head. The co-offender also stomped on the side of her ear and face. As a result of the blows, Ms Dowling’s head was banging on the concrete ground of the carpark. Ms Dowling started to scream due to the attack.
11․The co-offender pulled at the sports bag and took hold of its handles. As the co-offender pulled the sports bag away, she also began to drag Ms Dowling along the concrete carpark for about two meters. Ms Dowling eventually lost her grip on the sports bag and managed to get to her feet. Ms Dowling noticed that the white ute had left the area. As the co-offender walked away with the sports bag under her right shoulder, Ms Dowling shouted at the co-offender to return the stolen property. The co-offender replied, “fuck off, fuck off!”.
12․Ms Dowling again approached the co-offender and again tried to wrestle the sports bag away using her right hand. The co-offender grabbed Ms Dowling’s right arm, leaned her head towards it and bit Ms Dowling’s right hand between her index finger and thumb. Ms Dowling immediately kicked out at the co-offender, causing her to let go of Ms Dowling.
13․As the co-offender continued trying to flee the area, Ms Dowling again demanded to check the sports bag. At this time, the co-offender started to fling the three pairs of shoes they had stolen at Ms Dowling. Also, at about this time, Ms Dowling noticed the offender was back in the area. Ms Dowling warned the offender not to come back to the store again. The offender and the co-offender then left the area.
14․Ms Dowling filled out an incident and injury form and Ms Knight took some photographs of Ms Dowling’s injuries. Ms Dowling later attended a medical practice in Belconnen to allow a doctor to assess her injuries. Ms Dowling contacted police to report the incident. When police arrived, they viewed CCTV footage from inside Paul’s Warehouse that showed the offender and the co-offender inside the store. CCTV footage from the Super Cheap Auto store nearby showed a white dual cab Mitsubishi Triton utility enter the carpark, as well as part of the interaction between Ms Dowling and the co-offender.
15․After viewing the CCTV footage and speaking with Ms Dowling and Ms Knight, police identified the offender and co-offender as the two suspects in this incident. Ms Knight and Ms Dowling both provided statements and viewed photo-boards that contained images of the offender and the co-offender. Ms Knight was able to identify the co-offender from the photo-board.
16․When the offender and co-offender were later apprehended by police they were given the opportunity to take part in a record of interview. The co-offender declined by the offender took part in one. The offender made the following admissions during this interview:
(a)That she was under the influence of ‘ice’ (methamphetamine) at the time of the incident; and
(b)That she and her “friend” had entered Paul’s Warehouse; and
(c)That she had money to buy the shoes but decided to steal them because she needed the money for something else; and
(d)That she and her “friend” had removed the shoes from the store and put them in the sports bag they had brought with them; and
(e)That she was there to aid her “friend”; and
(f)That she did not know her friend was going to wrestle with Ms Dowling.
Sentencing considerations
Nature and circumstance of the offending
17․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 372 [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 266 [19]. The Court must identify and consider those factors that bear upon the objective seriousness of the offence, though categorisations such as low, mid or high range objective seriousness may generally be unhelpful in this jurisdiction: R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 at [24].
18․The following factors are relevant to an assessment of the objective seriousness of the offence of theft: see R v Elphick [2021] ACTSC 9 at [115] and R v Slattery [2021] ACTSC 154 at [38]:
(a)The motive for the theft; and
(b)The extent and value of the property taken; and
(c)Whether the stolen item was of sentimental value, or utilitarian value such that it would be difficult or inconvenient to replace (such as identity documents).
19․I make the following observations about the theft offence committed by the offender with the above factors in mind.
(a)The total value of the property taken was $409.97.
(b)The offending does not appear to have been carefully planned and has hallmarks of opportunistic and spontaneous offending.
(c)The three pairs of shoes were items of no sentimental value, being items for sale in a large commercial business. They were not items inconvenient or difficult to replace; I note the items were in fact ultimately recovered by the store employees.
20․This offence is one committed by virtue of s 45A of the Criminal Code, meaning it is one of joint commission, and requires an assessment of the responsibility and moral culpability of the offender in the carrying out of the offence. See KR v The Queen [2012] NSWCCA 32 at [19]-[20], [22]:
19. What emerges from these statements of sentencing principle is that the participants in a joint criminal enterprise are equally responsible or liable for all the acts in the course of carrying out the enterprise, by whomsoever they are committed, yet a particular participant's level of culpability stands to be assessed by reference to his/her particular conduct.
20. Such an approach is consonant with the distinction in law between an offender's responsibility for criminal conduct and his/her culpability. They are relevant at different stages of the criminal process.
…
22. Culpability, on the other hand, is concerned with the assessment of an offender's moral responsibility for the offence. As such, it assumes liability for the offence and focuses upon aspects of the offender's conduct and his/her subjective circumstances in order to determine the appropriate degree of punishment: R v Merritt [2004] NSWCCA 19; R v Henry & Ors. [1999] NSWCCA 111 at [254]; 46 NSWLR 346; 106 A Crim R 149.
21․I observe here that the offender and co-offender appear to have participated to an equal extent in the theft of the items in terms of removing them from display, placing them in a bag and leaving the store without paying for the items. It was a bold offence committed without any real sophistication. It would have undoubtedly been an unpleasant experience for the staff of the store who would no doubt prefer not to deal with boldly confident thieves during the course of their employment.
22․Taking into account the features of the offence that I have identified in terms of objective seriousness, I do not consider this to be a particularly serious example of the offence of theft. The offender did not have any role in the physical altercation between the co-offender and the employee of the store who pursued the co-offender. The co-offender was charged with additional offences in relation to the violence perpetrated against the store employee to which she pleaded guilty. I will come to the sentencing outcome for the co-offender later in these remarks.
Subjective circumstances
23․The offender is currently 32 years old. She was 25 years old when the offences were committed. She is an Aboriginal woman born in Victoria, raised in NSW, moving to Canberra in 2006. It is not clear to me from the material the mob to which she identifies as belonging, but she does identify strong ties to the Ngunnawal people and Ngunnawal elders as a result of her time here on their country. Counsel for the offender drew my attention to the disadvantage and trauma the offender experienced in her childhood through transience as well as witnessing family violence perpetrated against her mother. She has two children who currently live with their father. She has not seen them in over four years and expresses a desire to reconnect with them.
24․She is engaged with Nelly’s Healing Centre. Included in the material tendered on the offender’s behalf is a letter from the Centre confirming that the offender was referred to their service on 1 May 2024 and has been engaging well in relation to drug and alcohol relapse prevention and support. The offender has also been referred to Odyssey House for Drug and Alcohol Support and has attended a group session of the Gullinyjas Program for Women. The letter confirmed the Centre’s willingness to provide ongoing support to the offender and that she is positively engaged with their service. The letter indicates that the service has strong hopes for the offender’s capacity to reach the goals she has set for herself and her children.
25․A Pre-Sentence Report dated 5 June 2024 records that the offender has an extensive criminal history and poor compliance with supervision under both bail and good behaviour orders including community service obligations imposed on her in the past. The offender’s engagement for the preparation of the report was somewhat inconsistent. The offender moved to Sydney before these court proceedings could be finalised in 2019.
26․The offender reported positive relationships with her siblings and her mother. She has not had contact with her father for some time, and as a child was exposed to and witnessed family violence engaged in by him. She has had two prior relationships, one of which included abuse perpetrated against her, and which she identifies as resulting in her having no contact with her children. She identified these circumstances as contributing to her poor mental health and her ongoing challenge in relation to substance abuse. The offender also identified that her desire to re-establish contact with her children had been a motivating factor for handing herself in to the ACT Supreme Court to deal with the outstanding warrant.
27․The offender has been residing in social housing in Sydney for the past two years and she hopes to stay in Sydney on a long-term basis. The offender noted she enjoyed spending time with family and participating in cultural art. She acknowledged that the majority of her friends in Canberra were anti-social and this was a factor in her decision to move to Sydney. She reported some pro-social relationships in Sydney. She left formal education at 13 years old, and completed Year 10 while in juvenile detention. She has attained certificates in business, baking and visual arts but reported limited employment; while she would like to be employed she identified her criminal history makes seeking employment difficult. She is currently reliant on Centrelink payments.
28․The offender reported her alcohol consumption increased significantly after the breakdown of a relationship in 2016 but that she had had extremely limited alcohol consumption in the last 12 months. The offender has used cannabis consistently since she was 13 years old and stated she is currently prescribed cannabis for medical purposes. She first used methamphetamine when she was 23 years old and estimated using it 20 times per year since that time, but denied any use over the past 12 months. The author identified that service records indicated the offender had engaged with various alcohol and drug treatment programs in the ACT including while at the Alexander Maconochie Centre. The pre-sentence report confirmed that the offender is currently engaged with Nelly’s Healing Centre in the Gullinyjas Program described as a holistic program for Aboriginal women who have been affected by the child protection and criminal justice systems. The offender is also currently being assessed by the Odyssey House Alcohol and Other Drugs outreach program.
29․The offender reported a long history of poor mental health, including depression, trauma and an adjustment disorder. The offender considered the loss of relationships with her children and their father as a contributing factor, which subsequently led to an increase in her use of alcohol and illicit substances. The offender reported she was the victim of a physically violent attack, which left her with facial injuries requiring facial reconstruction surgery and which caused significant trauma. She reported current engagement with a psychologist in Sydney and provided evidence of scheduled appointments.
30․In terms of her attitude to the offences, the offender did not dispute the charges and acknowledged her wrongdoing. She stated that a poor decision was made to keep the money that was intended to purchase the shoes for a friend, and that it was not pre-meditated. She accepted responsibility for her actions.
31․Against the background of the history that I have detailed, it is unsurprising that the author assessed the offender as suitable for a high level of supervision. It was noted that her desire to remain in Sydney may mean interstate supervision. While she has a significant criminal history and identified criminogenic risk factors, she also has protective factors including supportive familial relationships, and stable accommodation in Sydney. The offender expressed her motivation to address her mental health and alcohol and drug issues which she connected directly to her desire to re-establish her relationship with her children and gain employment.
Remorse, rehabilitation and degree of responsibility for the offending
32․A finding that an offender is truly remorseful is a “major factor” relevant to the offender’s prospects of rehabilitation: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at 169 [41]. Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community safety and is in the public interest: Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 537 [32].
33․Consistent with the plea of guilty the offender entered, the author of the Pre-Sentence Report considered that the offender accepted responsibility for the offending and acknowledged it was a poor decision to steal the shoes. This is to be balanced against the offender absconding from the jurisdiction, which saw the matter remain unresolved for a significant period. It is important to recognise that it is the offender who drew herself to the attention of the Court in order to see the matter conclude, the warrant having never been executed. Ultimately, I am satisfied that the offender is genuinely remorseful. Her return to the jurisdiction is consistent with a willingness to take responsibility and the presence of remorse. The offender’s desire to resolve these matters is also consistent with her stated aspiration to move forward with her life and put herself in the best possible position to be able to re-establish a relationship with her children. This, in my view, is a sign of a developing maturity, which is assisting the offender to appreciate both the impact of her offending and the driving factors behind it.
34․The significant period of time within which the offender has now not reoffended in the circumstances is factor that positively influences her prospects of reoffending. Despite her interaction with police in NSW, it does appear on the face of it that her decision to relocate to Sydney has provided an opportunity to distance herself from relationships that drew her into offending behaviour. That said, the offender’s history of failing to comply with community-based sentences does provides a foundation for some caution in relation to her prospects of rehabilitation.
35․Like the magistrate who sentenced the co-offender, I consider that the principles enunciated in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy) are applicable. The offender's background circumstances demonstrate disadvantage such that she was deprived of a stable and secure environment within which to develop. This is consistent with her early engagement with the juvenile justice system and her disrupted education. The offender’s background operates to explain to a degree, her engagement with the criminal justice system resulting in moderation, to some extent, of the need for general deterrence and punishment.
36․I am satisfied that the offender is particularly motivated by a desire to re-establish connection with her children and that this is causing her to genuinely reflect on the challenges she faces in relation to her mental health and substance misuse. This is consistent with her willingness to engage in rehabilitative programs to assist her in that regard and with her engagement in holistic, culturally appropriate support services designed to strengthen her capacity to remain in the community without engaging in offending behaviour. These are all positive factors that provide support for a more favourable view of her prospects for rehabilitation than her criminal history alone might suggest. Should the offender continue to draw on the cultural supports available to her to address her trauma and substance abuse history, as well as to treat her mental health challenges, her prospects of rehabilitation will be greatly enhanced. As it stands, I consider the material before the court provides a basis to be cautiously optimistic about her prospects for reform.
Criminal history
37․The offender has an extensive criminal history in the ACT and NSW containing entries for offences of dishonesty. Counsel for the offender noted that she has not committed any offences in any jurisdiction since 2020, which represents a significant period of time for someone who was persistently engaging with the criminal justice system.
38․An extensive criminal history does moderate the degree of leniency that may be afforded to the offender; however, she should not be punished twice for previous offending: see Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 at 312 [65].
Guilty pleas
39․The offender entered a plea of guilty in the Supreme Court after the matter had been committed for trial and immediately following agreement reached at a Criminal Case Conference, on 10 July 2019. A sentence date was accordingly set. However, that is when the offender absconded from the Territory. There is still some real utilitarian benefit to the plea, it having saved Court resources by removing the requirement for a trial and spared witnesses the experience of having to give evidence.
40․Counsel for the offender acknowledged that Court time and resources had been wasted by the non-appearance of the offender at her original sentencing date, but submitted a discount in the order of 20 per cent was still appropriate. In the circumstances, consistent with the authorities, I agree: see Blundell v The Queen [2019] ACTCA 34, DPP vPadreny [2024] ACTCA 4.
Time in custody
41․The offender has spent 72 days in custody solely referable to this offence and I have taken this into account.
Parity
42․There being a co-offender for the offence, 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 472-473 [28].
43․In Saipaini v The Queen [2021] ACTCA 5; 288 A Crim R 191 at 206-207 [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.
44․The offender submitted that the co-offenders’ culpability in the theft is relatively equal, to the extent that they both removed the shoes and fled the store. It was submitted that the offender did not participate in the violent assaults that the co-offender perpetrated on the store employee, and that therefore her overall culpability is less than the co-offender.
45․Where there are substantial differences between the co-offenders, the sentence imposed should reflect that difference: Lowe v The Queen (1984) 154 CLR 606 at 609, cited with approval in R v Nicholas; R v Palmer [2019] ACTCA 36 at [99] when the Court explained:
The [parity] principle acknowledges the need for consistency in punishment while recognising that sentencing is individualised and offenders present with difference subjective circumstances that must be taken into account.
46․The co-offender in this matter, Ms Dixon, was sentenced in the ACT Magistrates Court on 30 April 2020, and I have had the benefit of the reading the sentencing remarks. On the charge of theft by joint commission, Ms Dixon was convicted and sentenced to two months of imprisonment. She was also sentenced for other offences arising from the same incident that this offender does not face: on a charge of aggravated robbery she was convicted and sentenced to five months of imprisonment and on a charge of assault occasioning actual bodily harm she was convicted and sentenced to six months of imprisonment. The Magistrate considered in determining the appropriate outcome for Ms Dixon, that the principles enunciated in Bugmy operated to moderate the sentence to be imposed though noted the co-offender’s extensive criminal history reduced the extent of leniency that could be afforded.
47․There is no reason to distinguish as between the offenders in terms of their role in the act of theft. They both appear to have criminal histories for like offending. They were both relatively young women at the time the offence was committed. The maximum penalty that applies to this offence is different to that which the co-offender faced but the conduct relied upon is the same. The offender spent more time in custody than the penalty ultimately imposed on the co-offender.
Sentencing practise
48․The sentencing process requires justice to be done by reference to the particular circumstances of each individual case. Sentencing statistics and comparable cases do not define the possible range of available sentences nor do they place a cap on the upper or lower ranges of possible sentences: see Hili v the Queen (2010) HCA 45; 242 CLR 520 at 537 [54] and Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at 445 [51]-[53]. I have extracted below a selection of relevant sentencing outcomes to which I have had regard from this Court.
R v McMahon [2019] ACTSC 361
49․The offender was sentenced to three months of imprisonment for a rolled up count of theft, encompassing four separate occasions where the offender stole a bottle of alcohol from a supermarket. Each bottle was worth $10. The offending was committed in breach of good behaviour orders. The offender had experienced a “troubled childhood with a number of traumatic experiences” and had a substantial criminal history.
R v Moore [2021] ACTSC 333
50․The offender was sentenced for two counts of theft, amongst other offences. Both counts involved the stealing of a wallet and Murrell CJ observed that the thefts were unremarkable, save for the concern that generally accompanies the theft of identification documents. The offender was young, had an intellectual disability and had experienced childhood disadvantage. He had significant engagement with the criminal justice system. The offender was sentenced to four months of imprisonment on each count of theft.
R v Hall (No 2) [2020] ACTSC 63
51․The offender was sentenced for two counts of theft amongst other offending. The first count involved the offender breaking into an empty liquor store with two other persons and they took two empty cash registers and four bottles of alcohol. The second count involved the offender breaking into an empty café and stealing $400 cash from the register. The offender had a very disadvantaged upbringing and Elkaim J considered Bugmy to be applicable: at [20]. The young offender experienced substance abuse from an early age. He had a significant criminal history. He was afforded a 20 per cent discount in recognition of his plea of guilty. He was sentenced to two months of imprisonment on each count.
R v Johnson [2015] ACTSC 192
52․The offender was sentenced for seven counts of theft amongst other related offences. In the first offence the offender stole cash and cheques amounting to $18,000 from an unlocked safe in a warehouse. He was sentenced to 10 months of imprisonment, reduced from 12 months of imprisonment for the plea of guilty. In the second offence he took $535 in cash from a cash register while an employee was distracted and was sentenced to 4 months of imprisonment, reduced from 5 months of imprisonment for the plea of guilty. For the third offence, he took a set of keys from the office of a car repair workshop after unsuccessfully trying to open a petty cash tin and was sentenced to 3 months of imprisonment, reduced from 4 months of imprisonment for the plea of guilty. In the fourth offence he took $505 from a cash register in a showroom while staff were absent and was sentenced to 3 months of imprisonment, reduced from 4 months of imprisonment for the plea of guilty. In the fifth offence he took $2,500 in cash from an office in a butcher’s shop while it was unattended and was sentenced to 8 months of imprisonment, reduced from 9 months of imprisonment for the plea of guilty. In the sixth offence, while in a newsagent, he took a wallet from a woman’s handbag, which contained a variety of cards, a $50 movie voucher and about $15 in cash and was sentenced to 4 months of imprisonment, reduced from 5 months of imprisonment for the plea of guilty. In the seventh offence he took $946 from an unattended cash register in a store and was sentenced to 7 months of imprisonment, reduced from 8 months of imprisonment for the plea of guilty. He was subject to a Good Behaviour Order at the time of offending. The offender was 45 years old and had a criminal history which included some offences of burglary, theft and minor theft. He experienced childhood disadvantage and Penfold J considered the offending to be connected largely with drug abuse. He had participated in residential rehabilitation.
Determination
53․The purposes of sentencing are helpfully set at s 7 of the Crimes Sentencing Act 2005 (ACT). I consider general deterrence, punishment, accountability and specific deterrence to be particularly significant considerations. So too, rehabilitation, for the reasons I have explained. The maximum penalty for the offence of theft reflects it to be an objectively serious offence though, as I have already observed, this was not an especially serious example of the offence. It was a bold offence that relied on their confidence about staff being unable to stop them. Businesses and their staff are entitled to go about their duties without having to remonstrate with thieves and make attempts to prevent stock loss.
54․The offender has already spent 72 days in custody in relation to the offence, a period of time which is a longer penalty than that imposed on the co-offender, and which I am satisfied has had some punitive and deterrent effect. There is no case for the offender to receive a penalty harsher than that which was imposed on the co-offender. The offender has a complex personal history revealed in her consistent engagement with the criminal justice system. The offender appears to have reached a point in her life where she is genuinely trying to reform in order to demonstrate herself capable of being in her children’s lives. Something they would no doubt benefit from, if she is free from addiction and criminal conduct, given the importance that their connection to her could have on their cultural and emotional well-being.
55․I am of the view that the only appropriate outcome in the circumstances is a period of imprisonment. I am satisfied that the period the offender has already spent in full-time custody is sufficient to properly reflect the principles of sentencing most relevant; any further period would be an unduly harsh outcome. I do not consider it necessary to impose a further order requiring the offender to accept supervision in circumstances where she has not offended at all since 2020 and where she is positively engaging with an appropriate service for ongoing support. I am satisfied that an outcome recognising the period of time already spent on remand appropriately reflects the criminality of the conduct.
56․The starting point for the offence is 72 days. The application of a discount of around 20 per cent in recognition of the plea of guilty sees it reduced to two months.
Orders
57․For those reasons the following orders are made:
(1)In relation to the offence of theft (CC2018/13690) the offender is convicted and sentenced to two months of imprisonment to start on 12 April 2024 and end on 11 June 2024.
| I certify that the preceding fifty-seven [57] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor. Associate: A Turner Date: 17 June 2024 |
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