Director of Public Prosecutions v Vincent (No 2)

[2023] ACTSC 379

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Vincent (No 2)
Citation:	[2023] ACTSC 379
Hearing Date:	11 December 2023
Decision Date:	11 December 2023
Before:	Mossop J
Decision:	See [73].
Catchwords:	CRIMINAL LAW – JUDGMENT AND PUNISHMENT – Sentence – offender pleaded guilty to charges of aggravated burglary, theft
and dishonestly drive motor vehicle – where offender requested
court take into account seven other offences including theft and
aggravated burglary – seriousness of offending ranges from lower end of mid-range to mid-range of objective seriousness – significant criminal history – where offender has recently shown motivation to rehabilitate – sentence of imprisonment imposed to
be served by way of an intensive corrections order (ICO)
SENTENCING – ADDITIONAL OFFENCES – Taking offences
into account under Pt 4.4 of the Crimes (Sentencing) Act 2005
(ACT) – explanation of the decision in R v Campbell [2010]
ACTCA 20
CRIMINAL LAW – INTEPRETATION – Interpretation of s 11 of the Crimes (Sentencing) Act 2005 – whether limits on the length
of an ICO apply to each sentence or to aggregate term of
imprisonment imposed – whether four year limit on term to be served by ICO applies to each individual sentence – whether aggregate sentence may exceed four years – there is power to
make an ICO for sentences which in aggregate exceed four years
– it is a matter of discretion rather than the legal availability
whether such a sentence is imposed
Legislation Cited:	Criminal Code 2002 (ACT), ss 308, 312, 318, 324(1) Crimes (Sentencing) Act 2005, s 7, 11 Legislation Act 2001 (ACT), s 145
Road Transport (Safety and Traffic Management) Act 1999
(ACT), s 5C Road Transport (Vehicle Registration) Act 1999 (ACT), s 22(1)(b) Road Transport (Driver Licensing) Act 1999 (ACT), s 32(1)(a)
Cases Cited:	Attorney General’s Application Under s 37 of the Crimes
(Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 R v Barton [2001] NSWCCA 63; 121 A Crim R 185 R v Campbell [2010] ACTCA 20
Parties:	Director of Public Prosecutions Christopher Vincent (Offender)
Representation:	Counsel
M Howe (DPP) S Baker-Goldsmith (Offender)
Solicitors
Director of Public Prosecutions
Legal Aid ACT (Respondent)
File Numbers:	SCC 160 of 2022 SCC 161 of 2022
SCC 351 of 2022
MOSSOP J:
Introduction
1․	On 3 August 2023, the offender pleaded guilty to the following offences:
No  Charge number Offence Maximum Date of

penalty offence

1	CAN 2137/2022	Dishonestly drive	5 years	19 - 20
motor vehicle, contrary	and/or 500	February
to s 318(2) of the	penalty units	2022
Criminal Code 2002
(ACT)
2	CAN 2135/2022	Aggravated burglary	20 years	20 February
contrary to s 312 of	and/or 2000	2022
the Criminal Code	penalty units
3	CAN 2136/2022	Theft, contrary to	10 years	20 February
s 308 of the Criminal	and/or 1000	2022
Code	penalty units

2․	The offender also asks for the following seven offences to be taken into account in
relation to the charge of aggravated burglary pursuant to Pt 4.4 of the Crimes
(Sentencing) Act 2005 (ACT):
4 SC CAN 91/2022 Dishonestly drive motor 5 years 18 February

vehicle contrary to	and/or 500	2022
s 318(2) of the Criminal	penalty
Code	units

5	CAN2129/2022	Dishonestly take motor	5 years	18 February
vehicle contrary to	and/or 500	2022
s 318(1) of the Criminal	penalty
Code	units
6	CAN 2130/2022	Aggravated burglary	20 years	18 February
contrary to s 312 of the	and/or 2000	2022
Criminal Code	penalty units
7	CAN 2131/2022	Theft contrary to s 308	10 years	18 February
of the Criminal Code	and/or 1000	2022
penalty units
8	CAN 2132/2022	Fail to stop motor	For a first	18 February
vehicle for police	offence: 12	2022
contrary to s 5C Road	months
Transport (Safety and	and/or 100
Traffic Management)	penalty
Act 1999 (ACT)	units
9	CAN 2138/2022	Use vehicle with a	20 penalty	20 February
deceptively changed	units	2022
number plate contrary to s 22(1)(b) of the
Road Transport
(Vehicle Registration)
Act 1999 (ACT)
10	CAN 2139/2022	Drive whilst disqualified	12 months	19–20
contrary to s 32(1)(a) of	and/or 100	February 2022
the Road Transport	penalty
(Driver Licensing) Act	units
1999 (ACT)
11	CAN 2141/2022	Unlawful possession of	6 months	4 March 2022
stolen property contrary	and/or 50
to s 324(1) of the	penalty
Criminal Code	units

3․	Unusually, the schedule offences include very serious and separate offences of
aggravated burglary and theft.

Facts – substantive offences

4․	As will be apparent, the offending occurred on 18, 19 and 20 February 2022 and
4 March 2022. Notwithstanding that a number of the scheduled offences occurred on
18 February 2022 (before the offences for which he is to be sentenced), I will describe
the facts relating to the sentences upon which he is to be sentenced first before moving
on to describe the facts relating to the scheduled defences.

Charge 1 – Dishonestly drive motor vehicle – 19-20 February 2022

5․	At about 3:40am on 19 February 2022 a red Holden Commodore utility vehicle was
stolen from Park Street, Belconnen. The vehicle was fitted with a dashboard camera
which recorded audio and video. He was recorded on it saying “because I’m gonna hit
that scooter store bro. I’m gonna hit it. Like right now man”. At one point he was captured
on the dashboard camera because he parked the ute and walked in front of the bonnet.
The footage captured his face and a distinctive tattoo on his right hand.
6․	This and subsequent driving of the red ute on 20 February 2022 is the offence of
dishonestly driving a motor vehicle without consent.

Charges 2 and 3 – Aggravated burglary and theft – 20 February 2022

7․	At 4:28am on 20 February 2022 the offender drove the red ute to Botany Street in Philip.
He parked outside a shop named Canberra Electric Bikes. He got out of the ute wearing
a baseball cap, a black mask and gloves. Two people arrived in a white Mitsubishi van.
A second person got out of the red ute. At 4:34am those four people are recorded on
CCTV footage as using two angle grinders and a crowbar to force entry into the
Canberra Electric Bikes store. The offender can be seen as one of the four people. They
activated the security alarm.
8․	Gaining access to the store, the group stole the following items:

(a)	One Lapierre Ezesty AM 9.0 large electric bike valued at $8586.20;
(b)	One Grey Focus Jam 7.9 large electric bike valued at $6928.90;
(c)	One NCM Aspen electric bike valued at $1240.00;
(d)	One Blue Focus Jam 6.8 medium electric bike valued at $5856.40;
(e)	One Grey Norco VLT A1 medium electric bike valued at $6791.80;
(f)	One Black Focus Jarifa 6.6 large electric bike valued at $3427.60;
(g)	One Merida Eone Sixty 300 S large electric bike valued at $4519.80; and
(h)	One Grey XDS E-Rupt 4.0 electric bike valued at $2869.90.

9․	The total value of the stolen electric bikes was $40,220.60.
10․	The items were placed into the back of a white Mitsubishi van and the red ute. At 4:37am
two of the unidentified people drove the white van away. The offender and the other
unidentified person drove the red ute away.
11․	The aggravated burglary was aggravated by reason of the offender being in company.

Facts – Scheduled offences

Charge 4 – Dishonestly drive motor vehicle – 18 February 2022

12․	At 3:18am on 18 February 2022, CCTV footage captured the offender driving a stolen
Kia Sorento into the yard of Elevate Constructions on Gladstone Street, Fyshwick. The
Kia had been reported as having been stolen between 13 February 2022 and
14 February 2022 from an address in Chapman.
13․	Shortly after, the offender was captured on CCTV footage driving the Kia Sorento to
67 Gladstone Street, Fyshwick. He parked the car near a 2017 Silver Great Wall ute
owned by Barlens Pty Ltd. The ute was parked outside the Barlens office.
14․	The driving of the Kia Sorento involved a contravention of s 318(2) of the Criminal Code.

Charge 5 – Dishonestly take motor vehicle – 18 February 2022

15․	At 3:44am on 18 February 2022, the offender opened the driver’s door of the Great Wall
ute. He drove away. An unidentified person drove the stolen Kia Sorento away from the
scene.
16․	At about 5:00am, the offender returned to the parking area outside 67 Gladstone Street,
Fyshwick. The offender was driving the ute with David Woods and an unidentified
person. The three people exited the ute and approached Ion DNA Electric Vehicles,
which is located next door to Barlens.
17․	The taking of the Great Wall ute constitutes the offence of dishonestly taking a motor
vehicle contrary to s 318(1) of the Criminal Code.

Charges 6 and 7 – aggravated burglary and theft

18․	The offender used an angle grinder on the front door lock of the Ion DNA Electric Vehicles
shop. The unidentified third person used a crowbar to open the door. At 5:03am, the
three people gained entry into the store. They set off the security alarm. The group stole
the following items from Ion DNA Electric Vehicles and placed them into the back of the
ute:

(a)	One Mach 10 electric scooter valued at $1332.00;
(b)	One Mach 10R electric scooter valued at $2799.00;
(c)	One Nanrobot D6 electric scooter valued at $2222.00;
(d)	One Kaabo Mantis Solo Plus electric scooter valued at $1243.44;
(e)	One Mercane wide wheel dual motor scooter valued at $1340.00; and
(f)	One Ralday V2 Carbon electric skateboard valued at $1259.00.

19․	The total value of items stolen was $10,195.44.
20․	At 5:06am, the offender drove the ute away from the location. Inside the ute was the
unidentified person and Mr Woods.
21․	The store owner was alerted by the security alarm. He then attended the store with
police.
22․	The burglary was aggravated because it was in company.

Charge 8 – Failure to stop motor vehicle – 18 February 2022

23․ Shortly after 5:06am, Senior Constable Jarrad Drennan received a police radio

transmission giving details of the burglary and details of the stolen Great Wall ute. He

saw the ute driving on Newcastle Street and turned around to pursue it. The offender

increased his speed. The Senior Constable activated his lights and sirens in an attempt

to cause the offender to pull over.

24․	The offender did not stop, turned left at an intersection, travelled across a median strip
onto the incorrect side of the road and then travelled back to the correct side, “speeding
away” in an 80 km/h zone. The offender drove away across the ACT/NSW border and
out of sight of the Senior Constable.
25․	The conduct involves a breach of s 5C of the Road Transport (Safety and Traffic
Management) Act 1999 (ACT) because the activation of lights and sirens is taken to be
a signal to the offender to stop the motor vehicle.

Charge 9 – Use vehicle with a deceptively changed number plate – 20 February 2022

26․	This charge relates to the burglary and theft from Canberra Electric Bikes. The stolen
red ute had stolen number plates on it. That gives rise to the contravention of s 22(1)(b)
of the Road Transport (Vehicle Registration) Act 1999 (ACT).

Charge 10 – Drive whilst disqualified transfer charge – 19-20 February 2022

27․	At the relevant time of the offending, the offender was disqualified from holding or
obtaining a driver licence until 17 January 2023. Therefore, when he drove the red ute
and the Great Wall ute he was driving whilst disqualified.

Charge 11 – Unlawful possession of stolen property

28․	At about 2:45am on 4 March 2022 the offender was arrested by police. He was riding a
scooter that was later identified as an S1 electric scooter valued at $1299, stolen from
Ion DNA Electric Vehicles on 1 March 2022.

Objective seriousness

29․	The offending is aggravated by the fact that the offender was on parole at the time of the
offences.
30․	The burglary was committed on commercial premises, at night and when no victim was
present. Entry was forced. There was no gratuitous damage caused to the premises.
The source of aggravation was the presence of other people rather than weapons. The
offending was premeditated, in that the offenders wore hoods and masks and tools were
used to gain entry to the premises. The offending is at the lower end of the mid-range of
objective seriousness for an aggravated burglary.
31․	So far as the theft is concerned, the value of goods stolen was substantial. It is in the
mid-range of objective seriousness.
32․	The charge of driving a stolen motor vehicle was aggravated by its purpose, namely the
commission of further offences. It is offending in the mid-range of objective seriousness
for this offence.

Subjective circumstances

33․	The offender is the youngest of three children. He reflected on his childhood in primarily
negative terms and indicated that he predominantly resided in Canberra with his mother
and siblings. He described being emotionally disconnected from his mother while he was
younger and recounted that she used cannabis when he was young. He identified that
she has remained a supportive influence throughout his life. He describes his father
being predominantly absent from his life in his formative years, having minimal contact
until he relocated to reside with his father in Victoria when he was approximately 10 years
old. He described that as an unpleasant experience and returned to Canberra shortly
thereafter. He explained that he never reconnected with his father, had no contact with
his father in the last five years, and that his father is now deceased. He described having recently improved his relationships with his family, having a particularly strong bond with
his grandmother and older brother. The offender’s grandmother verified this claim.
34․	The offender described having an intermittent domestic relationship that resulted in two
children. The relationship ended approximately 10 years ago. He described the
relationship in principally negative terms and expressed having difficulties maintaining
contact with his children immediately following the conclusion of the relationship,
resulting in periods of him being absent in the children’s lives. He explained that the
relationship is now amicable and includes daily contact.
35․	He also reported being involved in a tumultuous relationship, ending around the time of
the current offences. He described experiencing significant emotional stress as a result
of these relationship issues and described an inability to manage the stress at that time.
He asserted that he has since developed positive coping strategies.
36․	He has currently been in a relationship for approximately eight months and described it
as positive. His current partner has children from a previous relationship and they are of
a similar age to his own children. He describes his current goal as being able to positively
contribute to both his family and his partner’s family. The offender’s partner verified that
they have a positive and supportive relationship.
37․	He reported that he commenced residing with his grandmother in her ACT Housing
property four weeks ago. He indicated that he had relocated to assist in caring for her in
light of her health issues. He explained that if sentenced to an intensive corrections order
(ICO), his intention would be to continue residing with his grandmother. He currently
does not contribute to the rent, however, regularly contributes to daily living expenses.
He reported that for approximately six months prior to residing with his grandmother he
had resided with his partner and her children. He stated a longer-term desire to secure
independent accommodation to facilitate spending time with his children, upon the
recovery of his grandmother.
38․	The offender explained that he had experienced a number of disruptions to his schooling,
including having been suspended on multiple occasions due to becoming involved in
physical altercations and the supply of cannabis. He did not complete Year 8 and has a
low level of literacy. He took steps to seek a learning difficulty diagnosis, but did not take
all steps to complete the diagnosis. He describes his level of literacy as being a source
of frustration from time to time.
39․	He recounted a sporadic history of employment in various industries including working
for a builder for approximately 10 years from the age of 18. He acknowledged periods of
unemployment arising largely out of illicit substance abuse. He reported that he had commenced employment as a casual driver for a scaffolding company on
3 October 2023. This has given him satisfaction and he expressed a desire to obtain
further licenses to develop his skills. He emphasised that maintaining a valid drivers
licence was of particular importance to him given that his employment requires him to
drive vehicles.
40․	He explained that he has made a conscious effort to distance himself from antisocial
influences since his release from custody in May 2023. He also disclosed that he
considers some previous acquaintances like “family”, despite them being negative
influences, and therefore continues to maintain occasional contact with those persons.
He explained that he has new prosocial connections from his current employment and
engages with them outside of work.
41․	The offender commenced using cannabis at approximately seven years of age. He
gradually increased his use to the point of daily consumption. This continued for a period
of years. He described “growing out” of cannabis at the age of 18 . He estimated that he
had used cannabis approximately 10 times over the last 20 years and denied any current
use.
42․	He reported use of pills including ecstasy and speed at approximately 14 years of age
but said that he had not consumed those substances for four or five years.
43․	He initially smoked ice at 16 years of age and estimated the consumption as being
weekly at 18 years of age. He describes the consumption as increasing steadily from
then until about three years ago, when the use of the substance was “all day every day.”
He identified the use of the substance as problematic and claimed that he has maintained
abstinence since his most recent incarceration. He claimed abstinence from all
substance use since his release from custody and attributed that to his employment and
an understanding of the negative side effects of that use.
44․	He reported that he had been found not suitable by both the Canberra Recovery Service
and Karralika Intake Assessments in relation to his applications for day programs for
alcohol and other drug rehabilitation. He provided a sample to ACT Corrections for
urinalysis on 30 November 2023. That produced a preliminary negative result.
Corrections were able to confirm that he had made contact with Canberra Recovery
Service and Karralika however the author of the pre-sentence report noted that the
offender had formed the view that the services were inappropriate for himself and that
he has not engaged with the services since.
45․	He reported himself to be in good general health. He engaged in counselling while in
custody. He attributed this to a new level of fulfillment in life due to having made changes
to his lifestyle and having secured employment.
46․	He accepted responsibility for the current offending. He said that his thought processes
were impeded by the use of high quantities of methamphetamine. The motivation for his
offending was to finance his illicit substance use.
47․	The author of the pre-sentence report indicated that an actuarial tool assessed the
offender as being suitable for a medium level of supervision within ACT
Corrective Services. He is reported as having a history of mixed compliance with
community-based orders, but recently his level of compliance appears to have noticeably
improved.
48․	The offender completed a number of courses while in custody. He was also a successful
worker in the prison bakery.
49․	A number of letters and references were tendered which supported the proposition that,
following his release from custody, his approach to life and the use of drugs has
substantially improved relative to his pre-incarceration approach. There were references
from his grandmother, his mother, his sister, his previous partner, two of his children and
one stepchild with that partner, his current partner, a friend of five years and one of his
teachers from the Alexander Maconochie Centre who assisted in him gaining
employment. There is also a letter from his current employer indicating his value as an
employee and the likelihood of an offer of permanent employment in the future. I accept
the evidence of there being a change in approach to life and a desire to depart from the
drug using lifestyle.

Criminal history

50․	The offender has a substantial criminal history. Amongst his offending is the following.
In 2007, he was convicted of driving while disqualified. He committed another offence of
driving while disqualified later in 2007. This resulted in him being resentenced on the
earlier offence.
51․	In 2008, he committed a further offence of driving while disqualified and was resentenced
on the good behaviour order associated with the previous conviction.
52․	In 2013, he was convicted of a series of minor and more serious driving offences as well
as two counts of driving while suspended. That sentence involved a short period of
full-time imprisonment. At the same time he was also convicted of two counts of failing to appear after a bail undertaking. Later in 2013 he was convicted of contravening a
protection order, assault and property damage.

53․ In 2015, he was convicted of driving while disqualified and being a driver with

methamphetamine in his oral fluid. He was also convicted of minor theft, failure to appear

after a bail undertaking, and riding or driving a motor vehicle without consent, making off

without payment and being an unlicensed driver.

54․	In 2016, he was convicted of aggravated burglary, three counts of aggravated burglary
and two counts of theft. He received sentences of imprisonment and partially suspended
sentences of imprisonment.
55․	In 2018, he was convicted of driving while disqualified and given a partially suspended
sentence of imprisonment. He was also convicted of using an unregistered and
uninsured vehicle.
56․	In 2018, he was convicted by Elkaim J of two counts of destroying or damaging property
and one count of assault occasioning actual bodily harm. This was offending directed to
his former partner and mother of his two children.
57․	In 2020, he was convicted again of driving while disqualified and given a sentence of
imprisonment. He was also convicted of riding or driving a motor vehicle without consent
and having a prescribed drug in his oral fluid, receiving stolen property and two counts
of unlawful possession of stolen property.

58․ Later in 2020, he was also convicted of assault occasioning actual bodily harm,

destroying or damaging property and minor theft.

59․	He was back before Elkaim J in 2021 and given sentences of imprisonment totalling two
years, three months and 11 days on charges of receiving stolen property and unlawful
possession of stolen property as well as breach of the good behaviour orders on the
earlier sentence.
60․	This is a very bad criminal history. It is consistent with a pattern of offending driven by
the need to obtain money to buy illicit drugs.

Plea of guilty

61․	The offender pleaded guilty at a criminal case conference. Each sentence will be reduced
by 15 percent on account of those pleas of guilty.

Time in custody

62․	The offender was in custody from 4 March 2022 until 21 June 2022 and again from
27 April 2023 to 1 May 2023 due to the present charges. This is a period of pre-sentence
custody which will be taken into account by backdating the first sentence imposed. The
backdate date is 23 August 2023.

Consideration

63․	As pointed out earlier the offender has a poor criminal history. It reflects his illicit drug
use over many years. The distinguishing feature in the present case is that there is
substantial evidence from a range of people that the offender’s approach to life has
significantly changed since his release from custody. That is consistent with the reports
relating to his conduct in custody.
64․	The sentencing exercise is an unusual one in that the prosecution has agreed to having
some very serious offending included in the schedule, to be taken into account on the
aggravated burglary charge. In R v Campbell [2010] ACTCA 20 the Court of Appeal
adopted the explanation of the effect of sentencing based upon a schedule by reference
to what Spigelman CJ said in R v Barton [2001] NSWCCA 63; 121 A Crim R 185 at [64].
That is by increasing the significance of personal deterrence and giving greater weight
to “the community’s entitlement to extract retribution for serious offences when there are
offences for which no punishment has in fact been imposed”. That approach was
adopted again by five judges in Attorney General’s Application Under s 37 of the Crimes
(Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
at [42]. In the context of the Australian Capital Territory, although Spigelman CJ’s
language has been adopted in Campbell, “retribution” may not be the appropriate word.
The need for “punishment” would be a factor consistent with s 7 of the
Crimes (Sentencing) Act 2005 (ACT). Nevertheless, the principle remains the same that
although the offender is being punished for the substantive offence, the existence of that
other offending affects the substantive sentencing exercise by increasing the weight that
is to be given to certain factors. Having mentioned the decision in Attorney-General’s
Application, it is worth noting the remarks made at [47]-[58] about the appropriateness
of adopting this procedure where there are serious offences to be included in the
schedule.

65․ The prosecution pointed to three comparable cases, each involving aggravated

burglaries of commercial premises. Each involved a starting point of 24 months’

imprisonment.

66․	In the present case, taking into account the schedule offences, the aggravated burglary
warrants a starting point of four years’ imprisonment, reduced to 41 months by reason of
the plea of guilty. The charge of theft, which carries a maximum penalty half that for the
aggravated burglary, warrants a starting point of three years’ imprisonment reduced to
31 months’ imprisonment. The charge of dishonestly driving a motor vehicle warrants a
starting point of 20 months’ imprisonment reduced to 17 months’ on account of the plea
of guilty. The close relationship between the conduct amounting to the three offences
and the need to achieve an appropriate overall sentence warrants a significant degree
of concurrency. The charge of theft will be cumulative as to six months upon the sentence
for the aggravated burglary and the sentence of dishonestly driving a motor vehicle will
be cumulative as to six months upon the sentence for the theft. The overall result is a
sentence of imprisonment of 53 months (four years and five months).
67․	The next issue is how that sentence should be served. On the one hand there is a strong
case for simply requiring the sentence to be served by way of full-time custody. For a
person with such a poor criminal history and a long-term problem with the abuse of illicit
substances the need for specific deterrence and protection of the community would
justify such an outcome.
68․	On the other hand, the offender is now 36, is apparently free of drugs, is employed and
apparently motivated to live within the framework of lawful employment and has various
family connections and obligations. In my view, notwithstanding the gravity of the current
offending, the circumstances are such as to warrant dealing with the matter in a way
which encourages his longer-term rehabilitation.
69․	Counsel for the offender submitted that a wholly suspended sentence of imprisonment
would be appropriate. I am not satisfied that that is the case. That is because, having
regard to his long history of criminal conduct, there is a significant risk that his trajectory
towards rehabilitation will not be smooth and it is desirable that his progress be closely
monitored and the incentives for maintaining that trajectory be maximised. That can be
achieved by requiring that he serve his sentence by way of intensive correction in the
community. The focus of intensive correction will need to be upon keeping him free of
drugs.
70․	Dealing with the matter by way of intensive correction involves a significant risk of failure.
Often the complications of life outside the prison system will mean that an offender the
subject of an ICO will be unable to avoid offending or drug use. The benefit of an ICO is
that the consequences of such failures are reasonably predictable and provide every
incentive for the offender to rehabilitate themselves.
71․	In determining that it is appropriate to deal with the matter by way of intensive correction,
I have interpreted s 11 of the Crimes (Sentencing) Act as imposing limitations on the
length of each individual sentence rather than the aggregate of all sentences to be
imposed. Further, in relation to the aggravated burglary charge I have had regard to the
matters in s 11(3).

72․ Only very limited submissions were made in relation to the question of statutory

interpretation as to whether the four-year limit applies to each individual sentence

imposed, or applies to the aggregate of all sentences imposed, or applies to the

aggregate sentence on all sentences imposed on a particular occasion. Having regard

to the popularity of ICOs as a sentencing outcome, that is a significant issue. In my view,

the language of s 11 is consistent with the limitations being applicable to a sentence of

imprisonment imposed in relation to an individual offence as distinct from the aggregate

of the sentences imposed for a number of offences. That arises from the use of the

singular “an offence”, “a sentence of imprisonment” in s 11(1) which is then carried

through to the remainder of the section. I do not consider that s 145 of the Legislation

Act 2001 (ACT) requires a different conclusion. That section provides that “words in the

singular number include the plural and words in the plural number include the singular”.

Given that s 145 allows a singular to be read as a singular, then it is open to read s 11

as applying to each individual sentence. It would only be if it required s 11 to be a

reference to an aggregate of a number of sentences and not as an individual sentence

that a sentence of greater than four years or a number of sentences would be precluded.

73․	However, given that what is being done in s 11 is to impose a numerical limit upon the
sentence or sentences that can be the subject of an ICO, the length limit must apply to
either each individual sentence or a number of sentences. In other words, it must be one
or the other and cannot be both.
74․	In circumstances where the language is consistent with it applying to each individual
sentence and where s 145 could not operate in a way that precluded the section from
applying to each individual sentence, the section must apply to each individual sentence.
75․	That does not mean that the fact that a sentence exceeded four years would be irrelevant
in determining whether an ICO should be made. It would be a very relevant consideration
in determining whether one would be appropriate. It is clear from the structure of s 11
and the nature of an ICO that they will usually not be suitable if intensive correction is
required to be maintained for a period in excess of four years. However, that is a matter
going to the discretion to make an ICO rather than the legal availability of such an order.
76․	In the circumstances of this case, I consider that the desirability of breaking the long-term
cycle of drug addiction and offending warrants the imposition of an overall sentence of
imprisonment which exceeds the four-year maximum applicable to each individual
sentence. When the period of backdating is taken into account, the actual time to be
served by way of intensive correction will only be marginally above the four-year limit
and I consider that the overall goal justifies the maintenance of an order in relation to the
offender for this period of time.
77․	I do not accept the submission that the offender’s current work obligations preclude the
appropriateness of an ICO. If they did then that would be a reason to require a period of
full-time detention rather than a reason to address the matter by way of a more lenient
wholly suspended sentence. The reason for that is that disposition by way of an ICO
involves a significant degree of leniency in order to achieve the rehabilitative goal. It will
be harder to justify an additional degree of leniency because the offender might find it
inconvenient to comply with the obligations of an ICO.

Orders

78․	The orders of the Court are as follows:
1. On the charge of aggravated burglary (CAN 2135/2022) and taking into account the

offences listed on the schedule signed by the offender on 11 December 2023 the

offender is convicted and sentenced to imprisonment for 41 months commencing on

23 August 2023 and ending on 22 January 2027.

2.    On the charge of theft (CAN 2136/2022) the offender is convicted and sentenced to

imprisonment for 31 months commencing on 23 December 2024 and ending on

22 July 2027.

3.    On the charge of dishonestly drive motor vehicle (CAN 2137/2022) the offender is

convicted and sentenced to imprisonment for 17 months commencing on

23 August 2026 and ending on 22 January 2028.

4.    Each of the above sentences is to be served by intensive correction in the

community.

I certify that the preceding seventy-eight [78] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop

Associate:

Date: