Director of Public Prosecutions v Woods
[2023] ACTSC 380
•11 December 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Woods |
Citation: | [2023] ACTSC 380 |
Hearing Date: | 11 December 2023 |
Decision Date: | 11 December 2023 |
Before: | Mossop J |
Decision: | See [43]. |
Catchwords: | CRIMINAL LAW – JUDGMENT AND PUNISHMENT – Sentence – offender pleaded guilty to offense of dishonestly ride motor vehicle, theft and aggravated burglary – offender seeks that further charges of dishonestly ride motor vehicle and make off without payment be taken into account – burglary involved stealing electric scooters and skateboards – objective seriousness of offending in low end of mid-range to mid-range – significant criminal history – sentence of imprisonment imposed |
Legislation Cited: | Criminal Code 2002 (ACT), ss 308, 312, 318(2), 322A, 328 Crimes (Sentencing) Act 2005 (ACT), s 80(1), Pt 4.4 |
Parties: | Director of Public Prosecutions David Woods ( Offender) |
Representation: | Counsel M Howe ( DPP) A Doig ( Offender) |
| Solicitors Director of Public Prosecutions Darryl Perkins Solicitors ( Offender) | |
File Numbers: | SCC 291 of 2022 SCC 292 of 2022 |
MOSSOP J:
Introduction
1․On 19 July 2023, the offender, David Woods, pleaded guilty to the following offences:
No
Charge number
Offence
Maximum penalty
Date of offence
1
CAN 3132/2022
Dishonestly ride motor vehicle, contrary to s 318(2) of the Criminal Code 2002 (ACT)
5 years and/or 500 penalty units
Between 17 and 20 February 2022
2
CAN 3133/2022
Aggravated burglary contrary to s 312 of the Criminal Code
20 years and/or 2000 penalty units
18 February 2022
3
CAN 3134/2022
Theft, contrary to s 308 of the Criminal Code
10 years and/or 1000 penalty units
18 February 2022
2․The offender also asks for the following offence to be taken into account pursuant to Pt 4.4 of the Crimes (Sentencing) Act 2005 (ACT) in relation to the charge of aggravated burglary:
4
SCCAN 270/2022
Dishonestly ride motor vehicle contrary to s 318(2) of the Criminal Code
5 years and/or 500 penalty units
18 February 2022
3․The offender also asks for the following offence to be taken into account in relation to the charge of dishonestly ride motor vehicle:
5
CAN 3135/2022
Making off without payment contrary to s 322A of the Criminal Code
2 years and/or 200 penalty units
19 February 2022
Facts
4․The offences the subject of the pleas of guilty on 19 July 2023 were committed with Mr Vincent, whose sentencing proceedings have been determined at the same time as Mr Woods. Although the offences are overlapping, the Statements of Fact which have been agreed between the prosecution and each offender are slightly different. Accordingly, each matter has been considered only on the basis of the Statement of Facts tendered in those proceedings and without reference to the facts as described in the other matter.
Count 1 - dishonestly ride motor vehicle (and scheduled offence)
5․At 3:18am on 18 February 2022, CCTV footage captured the offender exiting a stolen Kia Sorento after it had pulled 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.
6․Two other people were in the car. One was Mr Vincent. The other person is unidentified. Mr Vincent and the unidentified person took hi-vis clothing and items from a truck parked in the yard and left the location at 3:33am.
7․At 3:35am, Mr Vincent drove the Kia Sorento to the front parking bay of a nearby location, 67 Gladstone St, Fyshwick. Mr Woods and the unidentified person were also in the car. Once there, the group exited the vehicle, removed a spare wheel and moved items around inside the car. They removed the inside boot cover and left it in the carpark. Also parked there was a 2017 Great Wall ute owned by Barlens Pty Ltd.
8․At 3:44am, Mr Vincent opened the driver’s door of the ute. He drove away. An unidentified person drove the stolen Kia Sorento away from the scene, with the offender in the front passenger seat.
9․The riding in the Kia Sorento is the breach of s 318(2) of the Criminal Code.
10․At 1:45pm on 19 February 2022 the offender filled up the car with 65 litres of petrol from the Caltex service station in Conder. He returned to the passenger seat and the vehicle drove away without anyone paying for the fuel. This is the scheduled offence which involved a contravention of s 323(1) of the Criminal Code.
Counts 2 and 3 – aggravated burglary and theft (and scheduled offence)
11․At 4:59am on 18 February 2022, the offender, Mr Vincent and a third person arrived back in Gladstone Street in the Great Wall ute. There was a fourth person who remained in the car. Riding in the Great Wall ute gave rise to the scheduled offence of dishonestly riding a motor vehicle. Mr Vincent used an angle grinder on the front door of Ion DNA Electric Vehicles. The third person used a crowbar to open the door.
12․At 5:03am, the group gained entry into the store. The offender, Mr Vincent, and a third unidentified person were wearing bright yellow hi-vis gloves and shirts. 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 $1999;
(b)one Mach 10R electric scooter valued at $2799;
(c)one Nanrobot D6 electric scooter valued at $3190;
(d)one Kaabo Mantis Solo Plus electric scooter valued at $1999;
(e)one Mercane wide wheel dual motor electric scooter valued at $1895; and
(f)one Ralday V2 Carbon electric skateboard valued at $1620.
13․The total value of the items stolen was $13,502.
14․At 5:06am, Mr Vincent drove the ute away from the location. Inside the ute was the unidentified person and Mr Woods.
15․The store owner was alerted by the security alarm. He then attended the store with police.
Objective seriousness
16․The charge of dishonestly riding a motor vehicle was done for the purpose of committing other offending. It is in the mid-range of objective seriousness for this offence.
17․The aggravated 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, the offenders wore hoods 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.
18․So far as the theft is concerned, the value of the goods stolen was substantial. It is in the mid-range of objective seriousness.
Subjective circumstances
19․Mr Woods was raised by his parents alongside 11 siblings. His father passed away in 2016 and he described having an on-and-off again relationship with his mother. He does not presently have any contact with her. Of his 11 siblings, he claimed to be close to two sisters and one half-sister. However, he described maintaining regular contact with only one of his sisters. He described having a relationship with his ex-partner which broke down. He described her as being responsible for his “current situation”. That appears to be because he is currently serving a sentence for a number of family violence offences.
20․He described having three children, all currently in foster care. He only has contact with one of them. Child and Youth Protection Services verified this and noted that his two eldest children are on final orders until the age of 18 and that the offender was recently permitted to write to his eldest child. His second child has not had contact with the offender’s family for a while. His youngest child was in kinship care on a short-term order.
21․Mr Woods ceased his formal education after the completion of Year 9. His literacy skills are limited.
22․He reported a limited employment history but claimed to have been sporadically employed within the construction industry.
23․The offender began using methamphetamine and cannabis at 13. He described his use at its height as involving daily use of 1.5 g of each. He claimed to have reduced his use to less than a gram of each per day. He indicated a hesitancy to complete the EQUIPS Addiction course in prison due to having negative relationships with likely participants. He articulated lessons learned from other courses which he thought could be useful in managing his thought processes with respect to addiction. He expressed an intention to commence the Canberra Recovery Service day program and a further intention to transition to the residential program once in the community. He was subject to random urinalysis on 4 January 2023, 17 June 2023 and 7 September 2023 and no illicit substances were detected.
24․He disclosed having acquired a brain injury which has affected his memory. He is diagnosed as having a mild intellectual disability, but there is no further information before the court about that.
25․He agreed with the police Statement of Facts and attributed his offending to his illicit substance use at the time. He indicated a motivation to access substance misuse treatment and has expressed a view that he is fatigued with his offending lifestyle.
26․He is assessed as suitable for a community service work condition and for an intensive correction order.
Criminal history
27․The accused has a significant criminal history.
28․In 2009, he has convictions for failing to appear after a bail undertaking and unlicensed unregistered and uninsured driving. He has further driving offences in 2010. In 2011 he was convicted of possession or use of firearms. He was given a short sentence of imprisonment.
29․In 2011, he was convicted of aggravated burglary and given a partially suspended sentence of imprisonment. He was also convicted of theft and given a sentence of imprisonment.
30․In 2012, he was convicted of attempting to escape from custody. In 2015 he was convicted of two counts of assault occasioning actual bodily harm and one count of common assault. In 2017, he was convicted of assault occasioning actual bodily harm and two counts of failing to appear after a bail undertaking. He was given sentences of imprisonment. In 2017, he was convicted of common assault and damaging property. He was given sentences of imprisonment.
31․In 2019, he was given custodial sentences for driving offences, including two counts of riding or driving a motor vehicle without consent.
32․In 2022, he was convicted of driving while disqualified and driving with a prescribed drug in his oral fluid.
33․In 2023, he was given a number of custodial sentences for family violence offending which included common assault, choking, making a threat to kill, assault occasioning actual bodily harm and choking so as to render a person insensible. He was also convicted of further family violence offending including two counts of damaging property and possessing an offensive weapon. The total effective sentence imposed was two years and three months with a non-parole period of 15 months. The non-parole period concluded on 30 November 2023 and the head sentence will end on 30 November 2024.
Time in custody
34․The offender was arrested on 31 March 2022 for the offences, but was granted bail the following day. On 1 September 2022, the offender was arrested for the unrelated family violence offences and he was sentenced for those offences on 13 January 2023.
35․Therefore, only two days in custody are attributable to the offending the subject of the sentencing proceedings. The sentence will be backdated to take those days into account.
Consideration
36․The present offending involves burglary and theft committed for the purposes of obtaining money to buy drugs. The offender was introduced to drugs when very young. However, he has had many opportunities while in custody to address those issues. It is a positive sign that he is becoming fatigued with his offending lifestyle. However, there is not a clear indication that he is motivated or able to go down a different path when he is released.
37․The three comparable cases referred to in the prosecution submissions involved sentences for aggravated burglary with starting points of 24 months.
38․On the charge of dishonestly riding a motor vehicle, the appropriate starting point is a sentence of 18 months’ imprisonment reduced to 15 months on account of the plea of guilty.
39․On the charges of aggravated burglary and theft, in each case the starting point will be a sentence of 24 months’ imprisonment reduced to 20 months and 15 days on account of the plea of guilty.
40․The sentences will be imposed so that the aggravated burglary is served first. The sentence on the charge of theft will be cumulative as to six months upon the earlier charge. The charge of dishonestly riding a motor vehicle will be cumulative as to six months upon the earlier charge. This gives an aggregate sentence of imprisonment of 32 months and 15 days (that is, two years, eight months and 15 days).
41․An intensive correction order is not available because he is currently serving a sentence of full-time imprisonment: Crimes (Sentencing) Act s 80(1).
42․Because he is currently serving a sentence which commenced on 1 September 2022 and would end on 30 November 2024, it is necessary to reset the non-parole period. On the previous sentences, the overall sentence was 27 months with a non-parole period of 15 months. That reflects a non-parole period of 55 percent. The non-parole period will be reset so that it is a period of 33 months. That that reflects 56 percent of the head sentence. It commences on 1 September 2022 and ends on 31 May 2025. Maintaining the non-parole period at a percentage of the head sentence at the lower end of the usual range gives the offender every incentive for good behaviour and the potential for a significant period subject to supervision in the community.
Orders
43․The orders of the Court are as follows:
1. On the charge of aggravated burglary (CAN 3133/2022) (and taking into account the scheduled charge SCCAN 270/2022) the offender is convicted and sentenced to imprisonment for 20 months and 15 days commencing on 29 November 2024 and ending on 12 August 2026.
2. On the charge of theft (CAN 3134/2022) the offender is convicted and sentenced to imprisonment for 20 months and 15 days commencing on 29 May 2025 and ending on 12 February 2027.
3. On the charge of dishonestly ride motor vehicle (CAN 3132/2022) (and taking into account the scheduled charge CAN 3135/2022) the offender is convicted and sentenced to imprisonment for 15 months commencing on 13 May 2026 and ending on 12 August 2027.
4. The non-parole period commences on 1 September 2022 and ends on 31 May 2025.
| I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop Associate: Date: |
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