Director of Public Prosecutions v Steep

[2024] ACTSC 326

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Steep

Citation: 

[2024] ACTSC 326

Hearing Date: 

23 October 2024

Decision Date: 

23 October 2024

Before:

Mossop J

Decision: 

See [107]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – charges include burglary, theft, attempted theft, minor theft, possessing a knife without reasonable excuse, and trespass – submission by offender that offending attributable to illicit drug use – offender motivated to address drug use – offender seeking to be placed in Drug and Alcohol Sentencing List – total sentence imposed exceeds four-year maximum for drug and alcohol treatment order – offender sentenced to aggregate five years’ imprisonment

Legislation Cited: 

Crimes Act 1900 (ACT), s 382(1)

Crimes (Sentencing) Act 2005 (ACT), ss 7, 12A(1)(b), 12A(1)(c), 66

Criminal Code 2002 (ACT), ss 44, 308, 311, 315(1), 321

Public Order (Protection of Persons and Property) Act 1971 (Cth), ss 11(1), 12(1)

Parties: 

Director of Public Prosecutions

Mitchell Ryan Steep ( Offender)

Representation: 

Counsel

E Wren ( DPP)

E Chen ( Offender)

Solicitors

Director of Public Prosecutions

Legal Aid ACT ( Offender)

File Numbers:

SCC 35 of 2024

SCC 61 of 2024

SCC 192 of 2024

SCC 325 of 2024

SCC 355 of 2024

SCC 365 of 2024

MOSSOP J:

Introduction

1․These are sentence proceedings in relation to offences committed by Mr Mitchell Ryan Steep. The offences for which the offender is to be sentenced are as follows:

(a)Four counts of burglary, contrary to s 311 of the Criminal Code 2002 (ACT) (CAN 12071/2023, CAN 7559/2023, CAN 7337/2024, and CAN 12413/2023). The maximum penalty for each count is 14 years’ imprisonment or 1400 penalty units or both.

(b)Four counts of theft, contrary to s 308 of the Criminal Code 2002 (ACT) (CAN 12495/2023, CAN 5785/2023, CAN 6321/2024, and CAN 3447/2024). The maximum penalty for each count is 10 years’ imprisonment or 1000 penalty units or both.

(c)One count of attempted theft, contrary to s 308 of the Criminal Code 2002 (ACT) by virtue of s 44 of the Code (CAN 7496/2023). The maximum penalty is 10 years’ imprisonment or 1000 penalty units or both.

(d)One count of going equipped for theft, contrary to s 315(1) of the Criminal Code 2002 (ACT) (CAN 5787/2023). The maximum penalty is three years’ imprisonment or 300 penalty units or both.

2․There are also four transfer charges that need to be dealt with:

(a)One count of trespass on Commonwealth premises, contrary to s 12(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth) (CAN 7143/2023). The maximum penalty is 10 penalty units.

(b)One count of possessing a knife without reasonable excuse, contrary to s 382(1) of the Crimes Act 1900 (ACT) (CAN 7497/2023). The maximum penalty is six months’ imprisonment or 10 penalty units or both.

(c)One count of minor theft, contrary to s 321 of the Criminal Code 2002 (ACT) (CAN 8603/2023). The maximum penalty is six months’ imprisonment or 50 penalty units or both.

(d)One count of trespass, contrary to s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth) (CAN 12415/2023). The maximum penalty is 10 penalty units.

3․The principal submission made on behalf of the offender was that because the offender was motivated to address his illicit drug use and because that illicit drug use was the cause of the offending, it would be appropriate to refer him to the Drug and Alcohol Sentencing List where, if found eligible and suitable, he would be able to serve a sentence with the full range of supports available under such an order.

4․Counsel for the prosecution recognised that drug use was the cause of his offending and that there would be merit in a referral but pointed out that, due to the existing sentences to which the offender was subject, he would not be eligible for a drug and alcohol treatment order until 9 November 2025, as a result of being subject to a good behaviour order associated with a suspended sentence up until that date. The relevant prohibition on a drug and alcohol treatment order in those circumstances is contained in s 12A(1)(c) of the Crimes (Sentencing) Act 2005 (ACT).

5․There was considerable confusion at the hearing as to whether or not the relevant good behaviour order was one which expired on 9 June 2025 or 9 November 2025. That is, whether it was a good behaviour order of 12 months’ or 18 months’ duration.

6․The offender’s criminal history recorded the good behaviour order as being 18 months; however, the reasons of Baker J, who recently determined the offender’s appeal from the relevant sentences, recorded the good behaviour order as being only 12 months. The transcript of the magistrate’s reasons indicated that some of the sentences were the subject of a 12-month good behaviour order and that some of them were the subject of an 18-month good behaviour order. Ultimately, however, the length of the good behaviour order would not be of significance in the present circumstances. That is because the offender remains in custody. Because he has not, in fact, entered into a good behaviour order, he continues to serve the sentences of imprisonment that were imposed, although the last of those sentences will, unless suspended, expire on 24 November 2024.

7․The evidence disclosed that the first available listing in the Drug and Alcohol Sentencing List was in February 2025. The submission made on behalf of the offender was that the impediment imposed by his existing sentence would end in June 2025 and that there was a real prospect that the process of assessment would take up the time between February and June and, hence, a referral would not lack utility. On my present understanding, because, in the absence of entry into the relevant good behaviour order, the sentences that would have been suspended will continue to be served, there would be no impediment to making a referral to the Drug and Alcohol Sentencing List because those sentences would expire as a result of their service in November 2024.

Agreed Facts

8․The charges upon which the offender is to be sentenced are summarised as follows.

COUNT	CHARGE	DATE	OFFENCE
1	CAN 12071/2023	3 January 2023	Burglary – Mister Minit
2	CAN 12495/2023	3 January 2023	Theft – Mister Minit
3	CAN 5785/2023	14 February 2023	Theft – Trek Rail E-Bike
4	CAN 7143/2023	6 June 2023	Trespass on Commonwealth premises – Department of Health and Aged Care
5	CAN 5787/2023	6 June 2023	Going equipped for theft
6	CAN 7559/2023	26 June 2023	Burglary – Greenway
7	CAN 8603/2023	26 June 2023	Minor theft – Greenway
8	CAN 7496/2023	3 July 2023	Attempt theft – David Jones
9	CAN 7497/2023	3 July 2023	Possess knife without reasonable excuse
10	CAN 7337/2024	20 August 2023	Burglary – Coombs
11	CAN 6321/2024	20 August 2023	Theft – Coombs
12	CAN 3447/2024	9 December 2023	Theft – The Canberra Distillery
13	CAN 12413/2023	16 December 2023	Burglary – Bonython
14	CAN 12415/2023	16 December 2023	Trespass – Bonython

9․The facts upon which the offender is to be sentenced have been agreed between the parties and are set out in a Statement of Facts, which was admitted into evidence at the sentence hearing as part of the prosecution tender bundle. Those facts are summarised as follows, along with my assessment of the objective seriousness of the offending.

10․During the whole of the period of offending prior to the final three offences committed in December 2023, the offender was either on bail or subject to a good behaviour order and, hence, on conditional liberty. This is an aggravating feature of those offences.

Offending on 3 January 2023 – Burglary and theft at Mister Minit (Counts 1 and 2)

11․On Tuesday, 3 January 2023, the offender was at the South Point Shopping Centre in Greenway. At about 7:15pm, the offender walked towards the Mister Minit stall located near the top of the eastern escalators. The offender spent about a minute walking around the Mister Minit stall, looking inside and around the shopping centre.

12․At about 7:18pm, the offender jumped over the counter of the Mister Minit stall. While inside the Mister Minit stall, the offender forced open a number of cupboards, accessed the combination safe, and stole a number of items, including:

(a)three Leatherman tools;

(b)one VVDI Keytool Pro-max; and

(c)one Xtool 100 Pad2.

13․These tools had a value of $6139.35. The offender also stole $1133.80 in cash.

14․At approximately 7:22pm, the offender jumped back over the counter, exiting the store with the property and cash in a number of bags.

15․The offender went down the escalator and ran towards the eastern exit. While running to the exit, the offender dropped a number of items on the ground, briefly stopped to pick some up, and continued towards the exit. The offender exited the shopping centre and made his way to the underground car park on the other side of the shopping centre.

16․By 10 January 2023, police had identified the offender by reference to his fingerprints, which were located on the inside of the Mister Minit stall. Distinctive tattoos on the offender also matched those that were seen on CCTV footage.

17․On 22 November 2023, police attended the offender’s residence and offered him the opportunity to participate in a recorded interview, which he declined.

18․These facts gave rise to the offences of burglary and theft. The offending involved a retail store which operated as a kiosk within a shopping centre. The offending involved minimal effort to enter the premises and did not involve the use of force. It involved the theft of property of substantial value, although the offence of theft is unlimited in the value of property that may be the subject of such a charge. The offending is in the mid-range of objective seriousness for each offence. The burglary is at the lower end of that range.

Offending on 14 February 2023 – Theft of an E-Bike (Count 3)

19․At about 2:05pm on Tuesday, 14 February 2023, a man, who will be referred to as “WC”, attended Belconnen Westfield on his Trek Rail E-Bike. WC chained his E-Bike to a pole near the entrance, before entering the shopping centre. The E-Bike was purchased for $9999.99.

20․At about 2:07pm, a man, who was later identified as the offender, approached the E‑Bike, before noticing other people around and walking away. Between 2:07pm and 2:10pm, the offender walked in front of the Trek Rail E-Bike multiple times.

21․At about 2:10pm, the offender approached the E-Bike, placed his backpack on the ground, and pulled an unknown object from his backpack. The offender then cut and removed the bike chain around the E-Bike. The offender walked away with the E‑Bike at about 2:12pm.

22․A short time later, WC left the shopping centre and noticed that his E- Bike was missing. At this time, he noticed that his bike chain was on the ground where the E-Bike had been, and that it had been cut open. He immediately walked to Belconnen Police Station and reported the incident.

23․On Tuesday, 21 February 2023, police attended Belconnen Westfield and viewed CCTV footage, which depicted the above incident. Police obtained a copy of the CCTV footage and, on Wednesday, 22 February 2023, sent out still images collected from the footage of the offender involved in the theft to all ACT Police. Three responses were received, all nominating the offender. Police viewed lawfully held images of the offender and compared them against the appearance of the offender depicted in the CCTV footage. Police were satisfied that the offender was the same male as that in the CCTV footage.

24․On Thursday, 23 February 2023, WC provided police with a copy of the receipt for the purchase of the E-Bike.

25․These facts give rise to the charge of theft. The offending was in the mid-range of objective seriousness for the offence of theft, having regard to the value of the item stolen and the fact that the offender had with him tools which allowed him to cut the chain, indicating a degree of planning even if the selection of the target was opportunistic.

Offending on 6 June 2023 – Going equipped for theft and trespass (Counts 4 and 5)

26․At about 10:24am on Tuesday, 6 June 2023, the offender followed an unknown female into a locked bike cage located at the Department of Health and Aged Care in Woden. The bike cage is only accessible using a swipe pass held by members of the Department. The majority of the bikes within the cage had their own locks securing them to metal bike racks.

27․CCTV footage depicted the offender walking up the stairs to where bikes were located within the secure access caged area. The unknown female left the cage, and the offender became locked inside.

28․CCTV footage showed the offender with a pair of black bolt cutters with red handles in his possession. Shortly after, the offender placed the bolt cutters underneath a milk crate in the north-west corner of the caged area.

29․At about 10:27am, Wilson Security staff contacted an employee of the Department. The employee attended the bike cage with Wilson Security and located the offender inside. The employee called the police and advised them of the incident.

30․At about 10:40am, police attended the location, and the offender was arrested and cautioned. A short time later, police located the bolt cutters, and the offender told police that they belonged to him.

31․The Department employee advised police during a recorded conversation that the offender was not a member of the Department and had no lawful reason to be within the secure caged area. At no point was the offender given permission to enter the bike cage by any Department of Health and Aged Care employee.

32․These facts give rise to the charges of going equipped for theft and trespass on Commonwealth premises. The former is in the mid-range of objective seriousness, given the relatively undifferentiated nature of the offence. The trespass is in the upper range of objective seriousness, having regard to the purpose for which the trespass occurred.

Offending on 26 June 2023 – Burglary and minor theft at Greenway (Counts 6 and 7)

33․At about 2:00pm on Monday, 26 June 2023, the offender entered the basement car park of a unit complex in Greenway.

34․At about 2:40pm, a resident of the unit complex entered level B1 of the basement car park from an elevator. As the resident exited the elevator, she saw the offender standing next to a parked blue ute in the residential parking area.

35․A short time later, the offender noticed the resident. Upon seeing her, the offender crossed the car park to the other side and walked behind the parked vehicles at a fast pace. The resident saw the offender looking into other parked vehicles as he went along before walking toward the end of the car park. The resident saw the offender go down to level B2. It was at that time that the resident lost sight of the offender and called the Building Manager, who subsequently called the police.

36․At about 2:45pm, police arrived at the location. While police were conducting a search of both basement car parks, they saw the offender on an electric scooter ride past them and head down the ramp into B2. Another police patrol was also coming down the opposite ramp into B2 and sighted the offender on the electric scooter. Police attempted to locate the offender on B2; however, the two sections of the car park were separated and police lost sight of the offender. Police then exited their vehicle and made their way around to the other side of the car park, where they saw the electric scooter that the offender had been riding abandoned near the fire stairwell.

37․Police could hear someone running up the fire stairwell and immediately entered. While in the stairwell, police located a mobile phone and immediately seized it. They heard the fire door on the ground level slam. They ran towards the ground level and exited the stairwell. They found a black backpack on the footpath a short distance away from the fire door, which police had seen the offender wearing in the basement.

38․At about 2:48pm, police saw the offender on the footpath between Cynthea Teague Crescent and Athllon Drive. At this time, police observed the offender to be wearing a beige baseball cap, black jumper with white stripes on the sleeves, and jeans. Police continued to follow the offender; however, they lost sight of him when he crossed Athllon Drive into the next suburb. They then returned to the footpath between Cynthea Teague Crescent and Athllon Drive and located the beige baseball cap, the black jumper with white stripes, and a digital camera.

39․Prior to leaving the location, police conducted a further search of the B1 and B2 car park areas of the unit complex. During this time, police saw that at least a dozen storage cages had been opened. Police found two storage cages with their locks broken and another storage cage with the screws removed from the latch that keeps it closed. Police also observed a stationary ute parked near the elevator on B1. Police noticed that the tray of the ute had shoe prints on it, but the vehicle's doors were closed, and the storage cage had not been opened.

40․At about 3:30pm, police returned to the Tuggeranong Police Station with the clothing that the offender had been wearing, the black backpack, the mobile phone, and the electric scooter. Upon searching the black backpack, police located a number of items, including, but not limited to:

(a)mobile phones;

(b)a multi-tool;

(c)sockets;

(d)various electronics;

(e)drug paraphernalia; and

(f)12 identification cards with the offender's details on them, including an ACT Driver Licence

41․At about 6:40pm, ACT Police Operations received a phone call from a second resident of the unit complex, a man who will be referred to as “CT”. He stated that his storage cage had been broken into. He stated that he was missing an electric scooter, a battery jump starter, and a small air pump kit. Police located the smaller items in the offender's backpack. The electric scooter was that which had been abandoned by the offender within the car park.

42․These facts give rise to the charges of burglary and minor theft. The items the subject of the minor theft charge include the electric scooter and the digital camera, as well as the other items belonging to CT that were found in the offender’s backpack. The total value of the property was $790. The parties agreed that even though the scooter had been abandoned during the offender’s escape from the car park, the offence was nevertheless complete. All the property the subject of this charge was ultimately recovered.

43․The burglary involved residential premises. Such offending may be less serious where it involves entry into the car park, rather than any particular residence, but it still involves an invasion of domestic property which is an invasion of an area considered to be more private and secure than commercial property. It is in the mid‑range of objective seriousness, being entry into a residential complex where valuable items are likely to be accessible. The minor theft is also in the mid-range of objective seriousness for that offending, notwithstanding that all the items were recovered.

Offending on 3 July 2023 – Attempted theft at David Jones (Counts 8 and 9)

44․At about 12:30pm on Monday, 3 July 2023, the manager of David Jones in Westfield Woden received a report from an anonymous member of the public that a male, later identified as the offender, had picked up a blue bag from within the store and filled the bag with multiple valuable cosmetic items before walking toward the exit. The manager contacted police, who were in Westfield Woden at the time. Police entered the store in plain clothing and immediately sighted the offender.

45․When the offender saw the police, he turned and walked back through the store. He then started sprinting. Police gave chase and shouted, "Police!" to ensure that the offender knew their identity despite their being in plain clothing.

46․During the chase, police saw the offender drop the blue bag and a black backpack on the floor. He exited the store via the walkway that led to the car park. Police continued to give chase before losing sight of the offender as he jumped a barrier that led to the lower levels of the car park.

47․At about the same time, the manager recovered both bags and searched the contents of the blue bag. He found multiple items, the value of which totalled $7001.00.

48․At about 2:15pm, police returned to the store and seized the black backpack. A subsequent search of the backpack identified a 5 cm black folding knife, and various other items.

49․At about 11:00pm on Thursday, 27 July 2023, police offered the offender to take part in a digitally recorded interview in relation to the incident. He declined.

50․This conduct gives rise to the charges of attempted theft and possessing a knife in a public place without reasonable excuse. The attempted theft was unsophisticated, but the amount attempted to be stolen was very significant. It was a nearly successful attempt at a mid-range theft offence. The possession of the knife is at the lower end of the range for this offence as it was a modest knife and was not used or displayed but rather carried with the offender in his backpack. It is, however, consistent with his involvement with illicit drugs and the criminal conduct associated with obtaining and using such drugs.

Offending on 20 August 2023 – Burglary in Coombs (Counts 10 and 11)

51․At about 1:25am on Sunday, 20 August 2023, a male, later identified as the offender, walked into the open garage of a residence in Coombs.

52․The offender walked around the garage between two parked vehicles and attempted to open a storage unit at the rear of one of the vehicles. The offender then made his way to the rear of the vehicle towards the flatbed tray, where two aluminium checker plate toolboxes were affixed and used a blunt object in an attempt to pry open one of the toolboxes, without success. He then stepped up into the flatbed of the vehicle and continued to try to pry open the toolbox. At about 1:35am, the offender opened the toolbox by pulling the lid open with both hands.

53․At about 2:21am, the offender took cases of tools out of the toolbox and placed them in the front passenger seat of a nearby vehicle.

54․At about 2:27am, the offender returned in another unknown vehicle, which parked at the garage entrance of the same address. He exited from the front passenger seat.

55․Over multiple trips, the offender removed the remaining tools from the tray and placed them in the rear of the unknown vehicle. The offender then got into the front passenger seat of the unknown vehicle, which drove away from the garage.

56․At about 8:47am the same day, a man, who will be referred to as “UO” and who had discovered the burglary of his premises, called ACT Police Communications.

57․Upon arrival, police were met by UO, who showed them to the garage. Police observed a checker plate toolbox to be opened and found a gold-coloured chisel located on the flatbed tray of the one of the vehicles. UO stated that the gold-coloured chisel was not his. Police seized the gold-coloured chisel, and a biology examination was conducted with a wet swab. A male DNA profile was obtained. It was determined that the offender could not be excluded as the source, and it was 100 billion times more likely that the offender was the source rather than the offender not being the source.

58․Police were advised by UO that approximately $12,000 worth of tools were taken.

59․Police viewed CCTV footage, which depicted the above events. Police immediately recognised the male depicted in the footage as the offender. The blunt object used by the offender in the footage had a strong resemblance to the gold-coloured chisel seized from the residence.

60․At about 7:29pm on Monday, 16 October 2023, the offender attended Woden Police Station for an unrelated matter and was offered to participate in a recorded interview, which he declined.

61․These facts give rise to the charges of burglary and theft. The burglary was of an open garage and, hence, did not involve any force to achieve entry; however, it was a burglary of residential premises. The theft was substantial and methodically carried out after having broken into the locked toolbox. Both offences are in the mid-range of objective seriousness.

Offending on 9 December 2023 – Theft at The Canberra Distillery (Count 12)

62․At about 9:06pm on 9 December 2023, the offender entered South Point Shopping Centre in Greenway. He approached the western end of The Canberra Distillery pop-up shop. He crouched down, pulled something from his pocket and attempted to break into the locked cupboards. The offender then walked off and continued to pace around the area for the next three minutes, waiting for other members of the public to leave the area.

63․At about 9:12pm, the offender returned to the shop with a shopping trolley and approached the opposite side of the shop. He then opened the cupboard doors of the shop and unloaded cardboard boxes full of alcohol into the trolley until the trolley was full. The offender took:

(a)three cases of The Canberra Distillery Musk Liqueur, worth a total of $1080;

(b)three cases of The Canberra Distillery Coffee Liqueur, worth a total of $1080;

(c)one case of The Canberra Distillery Rum, worth $360; and

(d)one case of The Canberra Distillery Butterscotch Schnapps, worth $780.

64․At about 9:14pm, the offender left The Canberra Distillery with the trolley and exited the shopping centre via the western exit.

65․Police subsequently examined CCTV footage from the security cameras at the shopping centre and recognised the male depicted as the offender.

66․At about 9:12am on Friday, 15 December 2023, police executed a search warrant at the offender's residence. The offender was not present during the execution of the search warrant.

67․During the course of the search warrant, police found clothes matching those which were worn by the offender depicted in the CCTV footage. They located and seized liqueur containers with “The Canberra Distillery” written on them. These matched the containers being placed into the trolley by the offender in the CCTV footage.

68․At about 1:13pm on Tuesday, 2 January 2024, police offered the offender an opportunity to participate in a recorded interview. The offender declined.

69․These facts give rise to the charge of theft. The value of the items was significant. It is at the lower end of the mid-range of offending.

Offending on 16 December 2023 – Burglary and trespass in Bonython (Counts 13 and 14)

70․At about 6:00am on Saturday, 16 December 2023, a woman, who will be referred to as “DS”, heard noises surrounding her residence in Bonython. At the time, DS thought it was her neighbours undertaking some construction works.

71․At about 8:00am, DS heard further noises which sounded like they were coming from her garage. She went outside to investigate and saw her garage door slightly ajar, with items strewn along the floor. She contacted her partner, who advised her to call the police. A short time later, she contacted ACT Police Communications and told them that she could hear someone in her garage.

72․At about 8:15am, police attended DS’s residence and, on approach to the residence, heard ruffling noises from the garage. Police saw the offender run from the side of the garage where a window was located and jump over the fence into the neighbouring unit.

73․Police gave chase to the offender, who continued running into the garage of the neighbouring unit. Police were able to apprehend the offender inside the neighbouring garage. Police immediately recognised the offender to be Mitchell Steep. He was arrested. He was offered the opportunity to participate in a recorded interview, which he declined.

74․Police found an electric scooter and tool bag outside the window of the garage, which DS confirmed belonged to her.

75․These facts give rise to the charges of burglary of DS’s premises, and trespass in relation to the neighbouring unit into which the offender jumped and where he was ultimately apprehended. The offence of burglary is a mid‑range offence involving residential premises and an intention to commit theft. The trespass is a fleeting one, engaged in as he attempted to escape from police.

Reparation sought

76․Reparation orders were sought in relation to some of the offences. The relevant amounts are not contested. The amounts are as follows:

(a)theft of the E-Bike from WC: $9999.99;

(b)theft of the items from The Canberra Distillery: $3300;

(c)theft of the items from UO: $500, being the insurance excess only; and

(d)theft of the items from Mister Minit: $7273.15.

Subjective circumstances

77․The subjective circumstances of the offender are outlined in a pre-sentence report dated 14 October 2024, a letter from an employee of Karralika Programs Inc that runs the Solaris Therapeutic Community program, and a letter from the offender’s neighbour.

78․The offender is 31 years old. He was born in Canberra. He has three siblings. His father left when he was about six years old. His mother died from drug-related issues when he was around seven years old. He was placed in the care of his grandparents, except for a brief period when he was in foster care. His grandparents provided a positive family environment. His brother died in 2018. His grandfather also died that year. The offender’s cousin, a friend, and an infant niece have also died suddenly.

79․Following a period of no contact, the offender has had recent contact with his grandmother.

80․The offender’s relationship with his former partner broke down in early 2023, although he identified that relationship as one which would compromise his recovery from drug use.

81․He has an infant daughter, although he has not participated in her life.

82․He has been unemployed for the last 12 months as a result of substance misuse. He aspires to complete a mature age apprenticeship in carpentry. He was in receipt of government payments prior to his incarceration.

83․All except one of his companions have antisocial attitudes and influences. The pro‑social companion is a neighbour who has lived in the same unit complex as the offender in Bonython. She provided the reference letter, which indicated his helpful behaviour and the fact that she trusted him. That letter disclosed the offender’s distress at having relapsed into drug use.

84․Prior to his arrest, he was using methamphetamine at the rate of two grams per day. He was focused on his addiction. He also used gamma-hydroxybutyrate to the extent that, shortly after his arrest, he was admitted to hospital to address symptoms of withdrawal.

85․He is participating in the Solaris Therapeutic Community program in prison, although he was exited from that program as he was still using illicit substances. The pre-sentence report indicated that he is expected to graduate along with a new cohort in that program and that he has made significant progress within the program. The letter indicated that he is “actively demonstrating behaviour change and emotional regulation”. He identified that, if released, he would need to attend a residential rehabilitation facility as boredom, money, and a desire for female companionship would be risk factors for his relapse.

86․He is now prescribed Buvidal to help manage his drug cravings.

87․He has no physical or mental health related diagnoses.

88․He attributed his offending to substance misuse.

89․He is assessed by the author of the pre-sentence report as being at a high risk of general reoffending. He has achieved brief periods of abstinence, followed by relapses in response to life stressors. The author of the pre-sentence report suggests that dealing with the offender in the Drug and Alcohol Sentencing List or a custodial sentence with supervision on parole may be suitable options for him. He is assessed as not suitable for a community service work condition. His compliance with good behaviour orders and parole orders has historically been poor.

Criminal history

90․The offender has a very substantial criminal history. In 2015, he committed minor theft, unlawful possession of stolen property, and driving with a prescribed drug in his system. In 2016, he committed another minor theft and three driving offences. In 2016, he committed New South Wales (NSW) driving offences, including failure to stop for police. Although the NSW criminal history is somewhat confusing, he appears to have received a sentence of imprisonment of eight months with a non-parole period of four months, which he served in 2018. In 2021, he committed two minor thefts and a burglary, for which he was given a sentence of imprisonment of just over two months and another sentence of imprisonment of almost seven months, to be served by intensive correction. He also committed another minor theft. In NSW, he also committed the offence of dishonestly obtaining a financial advantage by deception, for which he was fined. In 2022, he committed another two minor thefts and a burglary, for which he was given further sentences of imprisonment, which were concurrent with those imposed for the 2021 offending. He also committed theft and three counts of minor theft for which he was given suspended sentences. He breached the good behaviour orders associated with those sentences by committing further offences. In April 2024, in addition to being resentenced for the breach, he had further sentences imposed upon him for failing to stop for police and multiple offences of minor theft. The effect of the sentences imposed in April 2024 was that he is subject to imprisonment from 11 December 2023 until 24 November 2024, but the sentence could have been suspended subject to entry into a good behaviour order from 10 June 2024. As I indicated earlier, that has not occurred, and he remains serving those sentences.

Plea of guilty

91․Pleas of guilty were entered in the Magistrates Court prior to any entry of a plea of not guilty, although after several mentions. In each case, it is appropriate that he receive a reduction of 25 percent on the sentence that would otherwise have been imposed.

Time in custody

92․The offender is currently in custody. As a result of not having entered into any good behaviour order which would give rise to the suspension of the sentences imposed by the magistrate, he continues to serve those sentences. Therefore, contrary to what is identified on the index to the prosecution tender bundle, he has spent no time in custody attributable to the present offending.

Consideration

93․The offending reflects a common pattern of property crime designed to obtain goods to raise money to purchase drugs. The familiar pattern of offending does not make it less serious. Property offending directed to people and businesses who are trying to lawfully get on with their lives is a significant problem and imposes both direct and indirect costs on society. Amongst the indirect costs are the lack of a sense of security that people ought to have in their own homes and businesses.

94․The offender appears to have recognised the difficulty that he has with drugs and appears to be motivated to address that issue. He also recognises that his prospects of rehabilitation would be substantially improved if he were able to access the comprehensive regime as part of a drug and alcohol treatment order. However, the sentences that I will impose mean that he is not eligible for such a disposition because they will exceed the four-year maximum referred to in s 12A(1)(b) of the Crimes (Sentencing) Act.

95․In sentencing the offender, it is necessary to take into account his deprived upbringing. He lost both parents at a young age and, although he described his upbringing with his grandparents in positive terms, the effect of losing parents is significant. That is plainly a matter which has lifelong consequences for him. He is without significant social infrastructure which would assist him in addressing his drug use and associated criminality.

96․It is also necessary to take into account the totality of the sentences to be imposed, including the sentences that were imposed in the Magistrates Court. Those offences and the offences for which he is to be sentenced today all occurred in 2023 and, for totality purposes, must be considered together.

97․Each of the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act are relevant. Of particular significance are general and specific deterrence on the one hand and the desirability of rehabilitation on the other. Plainly enough, the various sentencing considerations pull in different directions and a sentence must be arrived at which attempts to give appropriate weight to each of them.

98․Subject to the offender’s submission about the desirability of making a referral to the Drug and Alcohol Sentencing List and, ultimately, achieving a drug and alcohol treatment order, there was no contention that custodial penalties should not be imposed, and I consider that no sentences other than sentences of imprisonment are appropriate in relation to those offences carrying a custodial penalty.

99․The sentences that will be imposed are summarised in the following table.

Count	Maximum	Starting point	Sentence	Cumulation
Burglary (3 January)	14 years	12 months	9 months	9 months
Theft (3 January)	10 years	12 months	9 months	3 months
Theft (14 February)	10 years	12 months	9 months	4 months
Trespass on Commonwealth premises (6 June)	Fine only (maximum $2750)	-	Fine of $1000	-
Going equipped for theft (6 June)	3 years	8 months	6 months	3 months
Burglary (26 June)	14 years	20 months	15 months	10 months
Minor theft (26 June)	6 months	2 months	1 month 15 days	Nil
Attempted theft (3 July)	10 years	8 months	6 months	2 months
Possess knife without reasonable excuse (3 July)	6 months	8 days	6 days	Nil
Burglary (20 August)	14 years	24 months	18 months	10 months
Theft (20 August)	10 years	20 months	15 months	5 months
Theft (9 December)	10 years	12 months	9 months	4 months
Burglary (16 December)	14 years	24 months	18 months	10 months
Trespass (16 December)	Fine only (maximum $3130)	-	Fine of $1500	-
Total	60 months

100․The total sentence of imprisonment is 60 months, which exceeds the four-year maximum permitted for a drug and alcohol treatment order.

101․So far as the fines are concerned, given the lack of means of the offender and the fact that he will be imprisoned, it is appropriate to allow him no time to pay.

102․Having regard to the legislative decision to give limited consequences to reparation orders and the fact that the offender is of very limited means and will be subject full-time detention for a substantial period, it is not appropriate to make any reparation orders in favour of the victims of the offending. That is because the making of the order would lack utility because it would not be complied with and there would be no relevant consequences for the offender. The inability to obtain reparations may well be disappointing to the victims of the theft offences but it is a consequence of a combination of the factors to which I have referred. It means that, unfortunately, the burden of the offending is borne by them.

103․The intention of the magistrate in imposing a sentence that he did was that the suspended sentences would operate from 10 June 2024. As circumstances have turned out, the offender has remained in custody and those sentences have not been suspended. In those circumstances, it appears to me to be appropriate to backdate the current sentences so that they commence when the sentences imposed by the magistrate might otherwise have been suspended. That introduces an appropriate level of concurrency for the purposes of totality and also recognises the unusual circumstances, in that the suspension of the sentences has not operated.

104․When setting a non-parole period, it is necessary to take into account the whole of the period of imprisonment served by the offender, namely, the period from the commencement of the first of the magistrate’s sentences of imprisonment on 11 December 2023: Crimes (Sentencing) Act, s 66. Thus, the overall period of imprisonment is from 11 December 2023 until 9 June 2029. That is a period of five years, five months and 30 days.

105․Consistent with the suggestion in the pre-sentence report, I consider it appropriate that there be a longer than usual period during which the offender can be subject to release on parole. That is for the reason that if he is to overcome his predisposition to drug addiction, he will need a significant period where his conduct is supervised. That may involve a period in residential rehabilitation, given the desirability of structure in his life and the absence of significant family support outside prison.

106․Because of the desirability of a significant period of supervision, the non-parole period will be 50 percent of the aggregate sentence, namely, a period of two years and eight months. That means that the non-parole period starts on 11 December 2023 and ends on 10 August 2026.

Orders

107․The orders of the Court are:

1.On count 1, the charge of burglary, contrary to s 311 of the Criminal Code 2002 (ACT) (CAN 12071/2023), the offender is convicted and sentenced to imprisonment for nine months commencing on 10 June 2024 and ending on 9 March 2025.

2.On count 2, the charge of theft, contrary to s 308 of the Criminal Code 2002 (ACT) (CAN 12495/2023), the offender is convicted and sentenced to imprisonment for nine months commencing on 10 September 2024 and ending on 9 June 2025.

3.On count 3, the charge of theft, contrary to s 308 of the Criminal Code 2002 (ACT) (CAN 5785/2023), the offender is convicted and sentenced to imprisonment for nine months commencing on 10 January 2025 and ending on 9 October 2025.

4.On count 4, the charge of trespass on Commonwealth premises, contrary to s 12(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth) (CAN 7143/2023), the offender is convicted and fined $1000 and allowed no time to pay.

5.On count 5, the charge of going equipped for theft, contrary to s 315(1) of the Criminal Code 2002 (ACT) (CAN 5787/2023), the offender is convicted and sentenced to imprisonment for six months commencing on 10 July 2025 and ending on 9 January 2026.

6.On count 6, the charge of burglary, contrary to s 311 of the Criminal Code 2002 (ACT) (CAN 7559/2023), the offender is convicted and sentenced to imprisonment for 15 months commencing on 10 August 2025 and ending on 9 November 2026.

7.On count 7, the charge of minor theft, contrary to s 321 of the Criminal Code 2002 (ACT) (CAN 8603/2023), the offender is convicted and sentenced to imprisonment for one month and 15 days commencing on 26 September 2026 and ending on 9 November 2026.

8.On count 8, the charge of attempted theft, contrary to s 308 of the Criminal Code 2002 (ACT) by virtue of s 44 of the Code (CAN 7496/2023), the offender is convicted and sentenced to imprisonment for six months commencing on 10 July 2026 and ending on 9 January 2027.

9.On count 9, the charge of possessing a knife without reasonable excuse, contrary to s 382(1) of the Crimes Act 1900 (ACT) (CAN 7497/2023), the offender is convicted and sentenced to imprisonment for six days commencing on 4 January 2027 ending on 9 January 2027.

10.On count 10, the charge of burglary, contrary to s 311 of the Criminal Code 2002 (ACT) (CAN 7337/2024), the offender is convicted and sentenced to imprisonment for 18 months commencing on 10 May 2026 and ending on 9 November 2027.

11.On count 11, the charge of theft, contrary to s 308 of the Criminal Code 2002 (ACT) (CAN 6321/2024), the offender is convicted and sentenced to imprisonment for 15 months commencing on 10 January 2027 and ending on 9 April 2028.

12.On count 12, the charge of theft, contrary to s 308 of the Criminal Code 2002 (ACT) (CAN 3447/2024), the offender is convicted and sentenced to imprisonment for nine months commencing on 10 November 2027 and ending on 9 August 2028.

13.On count 13, the charge of burglary, contrary to s 311 of the Criminal Code 2002 (ACT) (CAN 12413/2023), the offender is convicted and sentenced to imprisonment for 18 months commencing on 10 December 2027 and ending on 9 June 2029.

14.On count 14, the charge of trespass, contrary to s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth) (CAN 12415/2023), the offender is convicted and fined $1500 and allowed no time to pay.

15.The non-parole period commences on 11 December 2023 and ends on 10 August 2026.

[Order 8 was announced on 23 October 2024 but formally made on 25 October 2024, following the recommittal of the charge from the Magistrates Court to the Supreme Court]

I certify that the preceding one hundred and seven [107] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.

Associate:

Date: 14 November 2024