R v Agostino
[2016] ACTSC 234
•19 August 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Agostino |
Citation: | [2016] ACTSC 234 |
Hearing Dates: | 18, 19 August 2016 |
DecisionDate: | 19 August 2016 |
ReasonsDate: | 19 August 2016 |
Before: | Murrell CJ |
Decision: | Sentenced to 3 years and six months’ imprisonment with a 2-year nonparole period and a $2,300 fine. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – driving offences – burglaries – theft – significant criminal history – overwhelming subjective factors |
Parties: | The Queen (Crown) Aubrey Agostino (Accused) |
Representation: | Counsel Mr M Reardon (Crown) Mr K Archer (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Offender) | |
File Numbers: | SCC 124 of 2016; SCC 126 of 2016; SCC 164 of 2014 |
MURRELL CJ:
The offender is to be sentenced for a raft of dishonesty and driving offences committed in 2016. He is also before the Court in relation to a breach of a good behaviour order associated with a suspended sentence for the offence of aggravated robbery committed on 6 June 2014. The offences for which the offender is before the Court are listed in the table below:
Offence
Maximum penalty Breach - Aggravated robbery (6 June 2014)
25 years’ imprisonment
Burglary 1 (Bonython Street) 14 years’ imprisonment Burglary 2 (Canning Street) 14 years’ imprisonment Theft 1 (Canning Street) 10 years’ imprisonment Burglary 3 (Powlett Street) 14 years’ imprisonment Theft 2 (Powlett Street) 10 years’ imprisonment Fail to stop when requested 12 months’ imprisonment, default disqualification from driving for 3 months Drive recklessly 12 months’ imprisonment, default disqualification from driving for 3 months Obtain property by deception 1 (Dan Murphy’s) 10 years’ imprisonment Obtain property by deception 2 (newsagent) 10 years’ imprisonment Obtain property by deception 3 (supermarket) 10 years’ imprisonment Obtain property by deception 4 (Liquorland) 10 years’ imprisonment Drive with prescribed drug in oral fluid $1500, default disqualification from driving for 3 months Unlicensed driver (repeat, unlicensed) 6 months’ imprisonment Unregistered vehicle $3,000 Uninsured vehicle $7,500 Wrong number-plates $3,000 Unsafely maintained vehicle $3,000 Unlawful possession (items in Toyota car) 6 months’ imprisonment
The offender has been in custody since his arrest on 20 April 2016. The pleas of guilty were entered at the second mention of all matters in the Magistrates Court.
Facts of breach offence – aggravated robbery
At about 1:45 am on 7 June 2014, the offender and two other men arrived at the residence of the offender’s partner, with whom the offender had earlier had an argument. The offender’s partner was at home with two female friends and two male acquaintances. The offender became angry. One of the male acquaintances decided to leave the premises. He went to his car and entered the driver’s seat. The offender picked up a hunting-style knife from the kitchen bench and followed. Observing this, the second male joined his companion in the car. The offender approached the men in the car and demanded a watch, money, a mobile telephone and a bracelet. The offender threatened to break the driver’s jaw and attempted to grab the keys from the ignition without success. When spoken to by police, the offender admitted that he was motivated by jealousy and anger.
Ashford AJ imposed a deferred sentence to afford the offender an opportunity to rehabilitate. Unfortunately, the offender’s attempt to rehabilitate failed. On 14 December 2015, Walmsley AJ sentenced the offender to two years and six months’ imprisonment from 20 July 2014 to 19 January 2017. From 19 March 2016, the remaining 10 months of the sentence was suspended on a two year good behaviour order (to 19 March 2018). The offences of 20 April 2016 breached that order.
Facts – 2016 offences
The offender had been at the home of a friend in Downer. At about 8:00 am on 20 April 2016, he decided to attend a nearby residence at Bonython Street, Downer. By knocking on the door several times, he ascertained that the occupants were not at home. He climbed the boundary fence and forced entry via the rear door, damaging the door so that it could not be secured. A witness contacted the police while the offender was inside the premises, searching for property to steal. The offender left the area in a green Toyota vehicle and could not be located by the police. (Burglary 1)
Between 9:07 am and 11:20 am on 20 April 2016, the offender removed a fly screen from a front window at an address in Canning Street, Ainslie and climbed inside the premises. While inside, he stole personal documents, two bottles of cognac, two watches and miscellaneous other items of unknown value. At about 11:20 am, he left the premises, breaking the handle of the external security door to force it open. He was challenged by neighbours who then contacted the police. Later, the police retrieved the personal documents that had been taken. (Burglary 2 and Theft 1)
At an unknown time (but prior to 1:34 pm) on 20 April 2016, the offender forced open the front security door of a house in Powlett Street, Kaleen, breaking the wooden door frame. Inside the premises, he stole a television set (valued at $1,160), jewellery, personal documents and other items. These items were later recovered by police. (Burglary 3, Theft 2)
About 12:18 pm on 20 April 2016, uniformed police approached the offender near the Lyneham shops. He was beside the green Toyota vehicle. They directed the offender to stop but the offender entered the vehicle and drove away quickly. He was seen driving on the wrong side of the road and accelerating at high speed, overtaking vehicles and continuing on the wrong side of the road in the vicinity of pedestrians and other vehicles. (Failed to stop when requested, Drive recklessly)
At about 1:34 pm on 20 April 2016, the offender used a stolen ANZ bank card to purchase liquor valued at $95.40 from the Dan Murphy’s liquor store at the Westfield Shopping Centre in Belconnen. (Obtain property by deception 1)
A few minutes later, the offender used the same stolen bank card to make purchases to the value of $80.00 at a newsagency (Obtain property by deception 2)
The offender then proceeded to a supermarket where he purchased cigarettes and gift cards to the value of $89.95 using the stolen bank card. (Obtain property by deception 3)
About 1:54 pm he entered Liquorland at Westfield Belconnen and purchased liquor and cigarettes to the value of $97.50 using the stolen bank card. (Obtain property by deception 4).
At about 3:11 pm, police in an unmarked vehicle followed the Toyota vehicle in Chifley. It came to a halt and police approached the vehicle and found the offender asleep at the wheel. When arrested, he became very aggressive and non-compliant. He appeared to be well-affected by illicit substances and was later found to have methylamphetamine in his oral fluid. (Drive with prescribed drug in oral fluid)
The offender had been driving without a licence. He has never held a valid Australian drivers licence. (Unlicensed driver)
The Toyota vehicle was in extremely poor condition. Panels were missing, wiring was exposed and the front passenger tyre was secured by only two wheel nuts. The vehicle had been unregistered and uninsured since 31 October 2014. The number-plates on the vehicle had been stolen from an address in Belconnen on the previous evening. (Drive unregistered vehicle, Drive uninsured vehicle, Drive with wrong number-plate, Drive unsafely maintained vehicle).
On 9 May 2016, police executed a search warrant on the Toyota vehicle. Inside the vehicle, they located items belonging to others, including personal documents, keys and women’s clothing. These items were not related to the burglaries. (Unlawful possession of stolen property)
Objective seriousness
The burglaries are of relatively low objective seriousness. Although they involved intrusion into residential properties and minor damage was occasioned when the offender entered/exited, the offences occurred in the daytime when no one was at home and, in relation to the first burglary, the offender checked whether the premises were occupied before entering. Nothing was stolen from the Downer premises. The items that were stolen from the Kaleen premises were later recovered.
The offence of reckless driving is of significant objective seriousness, particularly because it occurred after police told the offender to stop and it involved an unlicensed driver driving an unsafe vehicle in circumstances where there was a real risk to public safety.
The offences of obtaining property by deception are best regarded as part of the one transaction. Each involved obtaining property of low value from a retail outlet using the same stolen bank card. The total value was about $350. The offences occurred within a 20 minute period.
The offence of driving with prescribed drug in oral fluid was serious as it put members of the public at risk. The offender must have been well affected because, after halting the vehicle, he immediately fell asleep at the wheel.
The other driving offences were also of significant seriousness.
History of offending
The offender is 25 years old. Despite his relative youth, he has a significant criminal history. In 2008, he received a suspended sentence for offences of dishonesty and assault and a good behaviour order for offences of dishonesty and damaging property. He breached the good behaviour order by committing driving offences and, in June 2010, he received another suspended sentence. He breached the associated good behaviour order by committing offences that included minor theft and was sentenced to 6 months’ imprisonment from December 2009 to June 2010.
In July 2010 the offender received a three-month suspended sentence for receiving stolen property, which he breached by committing driving offences in September 2010 (including driving an unregistered and uninsured vehicle). There was a further breach when, in October 2010, the offender committed the offence of possessing a prohibited substance. For that offence, in February 2011, he received a 12-month good behaviour order.
In November 2010, he committed offences of contravene protection order. These offences resulted in the offender serving a significant period of full-time imprisonment, commencing when the offender was 20 years old. In May 2011, he received a total sentence of eight months’ imprisonment from January 2011. Other sentences (for common assaults, damage property and assault occasioning actual bodily harm) were accumulated so that the offender was not to be released until 31 March 2014. Upon his release from a total period of imprisonment of three years and two months (January 2011 to March 2014), he was subject to parole until 30 September 2014. On 25 June 2014, parole was revoked and the offender served the remainder of the term. He was released on 23 May 2015.
On 7 June 2014, the offender committed the aggravated robbery described above. On 8 September 2015, taking into account the period already spent in custody, Ashford AJ granted a deferred sentence order of 20 months imprisonment deferring the sentence until 5 September 2016. Under the deferred sentence, the offender attended the Wayback Program (the Program) in Sydney. With the benefit of hindsight, because of the limited level of supervision associated with it, the Program may not have been ideally suited to the offender’s requirements. In any event, the offender failed to undertake a required mental health treatment program and was returned to custody.
As noted above, on 4 December 2015, Walmsley AJ sentenced the offender to 2 years and six months’ imprisonment from 20 July 2014 to 19 January 2017, to be suspended on 19 March 2016 (after the offender had served 20 months of the 30-month sentence) on a two-year good behaviour order. It was a condition of the good behaviour order that the offender undergo rehabilitation as directed by ACT Corrective Services for violent behaviour, illicit substance use and anti-social attitudes. His Honour contemplated that, on release from prison, the offender would enter a residential rehabilitation facility.
Unfortunately, that did not occur. When he was released, the offender was placed in public housing without intensive supervision.
On 15 October 2015, the offender committed the offence of unlawful possession of stolen property. On 4 December 2015, Magistrate Cook sentenced the offender to 3 months imprisonment from 4 January 2016 to 3 April 2016.
The offences committed on 20 April constitute a breach of the good behaviour order associated with the suspended sentence imposed by Walmsley AJ in December 2015. They were committed less than three weeks after the offender was released from custody on 3 April 2016.
On 20 April 2016, the offender was returned to custody. Since May 2016, he has committed five disciplinary breaches.
The dishonesty offences committed on 20 April 2016 differ from the offences that the offender has committed in the past; the most serious offences on his criminal history are matters of violence. The only April 2016 matters that endangered the public were the driving matters.
The offender is now 26 years and seven months old. As far as I can ascertain, since December 2009 (when he was 19 years and 11 months old) the offender has been in custody for the periods 4 December 2009 to 20 July 2010, 14 January 2011 to 31 March 2014, 25 June 2014 to 8 September 2015, 15 October 2015 to 3 April 2016 and 20 April 2016 to date. In other words, the offender has spent approximately 11 months out of custody and the remaining five years and nine months in custody. Each time that he has been released, the offender has quickly relapsed into criminal conduct. If this pattern continues, it will be a tragedy for the offender and a huge public expense.
Subjective circumstances
The offender’s background is one of overwhelming disadvantage.
He is a young Aboriginal man whose earliest childhood memories are of adults who were violent to him and each other. I will not detail the nature of the violence towards the offender; suffice it to say that it commenced when he was very young and was the worst possible kind.
The offender did not meet his biological father until he was 18 years old when they were both incarcerated in the same correction facility.
From the outset, the offender was surrounded by adults who abused substances. The offender’s mother was a heavy drinker. Apart from being extremely violent, the offender’s first step-father was a heroin addict. His second step-father was a heavy drinker, although the offender had a good relationship with him and retained the relationship after the second step-father left the offender’s mother.
Unsurprisingly, from an early age the offender displayed extremely disordered behaviour, including explosive outbursts. At age 11, he was displaying a “post-trauma response with anxiety and depression”. At age 12, he threatened suicide and was placed on “suicide watch” and, at age 14, he was considered to be a risk to himself and others.
The offender struggled at school. Even when he was in primary school, his aggression and violence posed a serious management challenge for the schools that he attended. He was placed in special education units, but even there his behaviour could not be controlled. He was expelled in Year 7 and never returned to school.
After leaving school, the offender worked casually for his second step-father in a cement rendering business. He has not worked since 18 years of age when “drugs took over [his] life”. Within the prison environment, the offender had undertaken some vocational training, completing courses in information technology, barista skills and other subjects.
The offender has a long-standing substance abuse problem. He commenced using cannabis at 11 years of age and quickly became a heavy user. He began using methamphetamine at 15 years of age and his use quickly escalated to daily use.
In 2005, the offender was involved in a car accident when he was driving a stolen car. The offender believes that, following the accident, he was unconscious for a significant period of time. The offender attributes migraine headaches and “forgetfulness” to a head injury sustained in this accident. Because the accident involved a stolen vehicle, the offender did not want to go to hospital and the possibility of a head injury was not investigated. It may never have been investigated.
The trauma suffered by the offender in his early childhood has not been addressed comprehensively. In 2015, the offender commenced counselling and began to recover disturbing childhood memories.
The offender has been diagnosed as suffering from Attention Deficit Hyperactivity Disorder, Bipolar II disorder and “antisocial and psychopathic personality traits”, but each of these diagnoses has also been questioned or even abandoned.
It is interesting to note that, despite the offender’s consistent anti-social behaviour, several healthcare professionals have observed that the offender has a strong code of personal ethics; of what he considers to be right and wrong.
In June 2015, the offender undertook psychometric testing through Dr Pulman and Ms Zipparo, and their report was tendered at the sentencing hearing. The results must be interpreted with caution as the offender may have been assessed when under the influence of an illicit drug that impaired his performance. The assessment revealed that the offender’s overall level of intellectual functioning is within the extremely low to borderline range (Full Scale IQ in the range 65–75), placing him in the second percentile (functioning in the bottom 2% of the population). However, the results of individual assessments are highly variable and on one test of verbal fluency he scored better than 41% of the population. Although the offender self-reported memory problems, psychometric testing disclosed no memory impairment.
The result of the psychometric testing was a diagnosis of Complex Trauma. This term describes the long-term impact on brain development when a young child is exposed to repeat trauma. Dr Pulman and Ms Zipparo considered it imperative that the offender undertake trauma counselling with an experienced trauma counsellor who understood the difficult and the pervasive nature of Complex Trauma. In addition, it was considered critical that the offender be placed in a drug-free environment and that his treatment for depression and anxiety be reviewed.
Recently, the offender commenced one-on-one fortnightly counselling with a counsellor from Relationships Australia, which is designed to address the offender’s childhood issues. The offender finds this counselling to be useful.
The offender is rebuilding his relationship with his mother. He has a good relationship with one of his sisters, with whom he keeps in regular contact. He has an eight-year-old son of a former relationship, with whom he kept in contact until his recent imprisonment. The former partner is expecting his child in five months.
At the sentencing hearing, the offender provided a letter in which he expressed his commitment to addressing drug issues and an appreciation that, unless he addressed trauma issues that were causing him to self medicate by drug abuse, the drug problem would remain. The offender’s letter showed considerable insight into his problems. He is tired of the lifestyle of imprisonment and feels that he has the capacity to change. He acknowledges that he requires help to do so.
The offender presents as a profoundly disadvantaged young Aboriginal man with a multitude of interrelated problems that, individually and collectively, will be extremely difficult to address. He suffered extreme childhood trauma which has had severe and ongoing cognitive, emotional and behavioural consequences. Another possible cause of some problems is a head injury sustained in 2005.
The offender has limited personal resources with which to address these problems. He is genuinely motivated to address them, but even within the prison environment he has been unable to remain drug-free. A 2015 attempt at residential rehabilitation was unsuccessful. During the most recent period of incarceration, the offender has committed disciplinary breaches. The author of the pre-sentence report stated that he is at high risk of further offending. Given his history, that conclusion was inevitable.
Sentencing purposes
The parties accept that, having regard to the number and nature of the offences and the fact that they were committed on conditional liberty, the only appropriate sentence is a significant period of full-time imprisonment.
The Crown concedes that the offender’s cognitive problems reduce the significance of general deterrence and denunciation as sentencing purposes, although each remains of some significance.
The offender’s criminal history suggests that the Court should be pessimistic about the offender’s prospects of rehabilitation. As noted above, his complex problems will be difficult to address and, if they are not addressed, rehabilitation is highly unlikely. On the other hand, the offender is genuinely motivated to address his problems and has started to do so.
Sentence
The offender is convicted. I find the breach established. I will re-sentence the offender for the aggravated robbery.
I impose the following sentences:
Offence Sentence Dates Aggravated robbery 10 months’ imprisonment 20.9.16 – 19.07.17 Burglary 1 18 months’ imprisonment (reduced from two years) 20.4.17 – 19.10.18 Burglary 2 18 months’ imprisonment (reduced from two years) 20.10.17 – 19.04.19 Theft 1 9 months’ imprisonment (reduced from 12 months) 20.10.17 – 19.07.18 Burglary 3 18 months’ imprisonment (reduced from 2 years) 20.4.18 – 19.10.19
Theft 2 9 months’ imprisonment (reduced from 12 months) 20.4.18 – 19.01.19 Fail to stop 1 month 20.6.16 – 19.7.16 Drive recklessly 3 months’ (reduced from four months) 20.6.16 – 19.9.16 Obtain by deception 1 month’s imprisonment 20.5.16 – 19.6.16 Obtain by deception 1 month’s imprisonment 20.5.16 – 19.6.16 Obtain by deception 1 month’s imprisonment 20.5.16 – 19.6.16 Obtain by deception 1 month’s imprisonment 20.5.16 – 19.6.16 Drug driving $500 Unlicensed driver 3 months’ imprisonment (reduced from four months) 20.6.16 – 19.9.16 Unregistered vehicle $300 Uninsured vehicle $500 Wrong number-plates $750 Unsafely maintained vehicle $750 Unlawful possession 1 month’s imprisonment (reduced from six weeks) 20.4.16 – 19.5.16
The fines are payable immediately.
The total sentence is three years and six months’ imprisonment. I impose a nonparole period of two years’ imprisonment, from 20 April 2016 to 19 April 2018. The circumstances in which the offender is released to parole are critical, both in relation to the offender’s rehabilitation and in terms of public safety. He should not be released directly into the community, but placed in a residential rehabilitation program for a significant period. The program should be one that treats dual-diagnosis participants. I recommend that parole be subject to the following conditions:
a) Upon release, the offender is to go directly to the nominated residential rehabilitation facility.
b) The offender is to remain at the facility and make all reasonable efforts to complete the program at the facility.
c) Whether or not he is at the facility, the offender is to accept the supervision of ACT Corrective Services and is to report to Corrective Services by telephone within one working day of his release.
d) If the offender leaves the residential rehabilitation facility for any reason, he is to report immediately to his supervising officer at ACT Corrective Services (if necessary, by telephone) and thereafter to follow all directions of the supervising officer.
| I certify that the preceding fifty-eight [58] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 8 September 2016 |
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