R v Anthony Daniel McIver
[2013] ACTSC 288
•19 December 2013
R v ANTHONY DANIEL MCIVER
[2013] ACTSC 288 (19 December 2013)
CRIMINAL LAW – Judgment and Punishment – Sentencing – Burglary – Theft of property
CRIMINAL LAW – Judgment and Punishment – Re-sentencing upon breach of good behaviour order
Crimes (Sentencing) Act 2005 (ACT), Pt 4.2
Criminal Code 2002 (ACT), ss 308, 311
Bugmy v The Queen (2013) 87 ALJR 1022
Muldrock v The Queen (2011) 244 CLR 120
R v Brewster [1998] 1 Cr App R 220
EX TEMPORE JUDGMENT
No. SCC 136 of 2013
Judge: Refshauge J
Supreme Court of the ACT
Date: 19 December 2013
IN THE SUPREME COURT OF THE )
) No. SCC 136 of 2013
AUSTRALIAN CAPITAL TERRITORY )
R
V
ANTHONY DANIEL MCIVER
ORDER
Judge: Refshauge J
Date: 19 December 2013
Place: Canberra
THE COURT ORDERS THAT:
Anthony Daniel McIver be convicted of burglary on 14 June 2013.
Each of the seven good behaviour orders made on 3 October 2012 be cancelled.
In respect of each of those orders, other than for the breach of the attempting to take a motor vehicle without consent, Anthony Daniel McIver be sentenced to six months’ imprisonment, to commence on 19 June 2013.
For the offence of attempting to take a motor vehicle without consent, Mr McIver be sentenced to three months’ imprisonment, to commence on 19 November 2013, that is, to be cumulative as to two months on the earlier order.
For the burglary, Anthony Daniel McIver be sentenced to twelve months’ imprisonment, to commence on 19 November 2013, that is, to be cumulative as to 11 months on the sentence for the breach of good behaviour order.
Anthony Daniel McIver be convicted of theft of property on 14 June 2013.
Anthony Daniel McIver be sentenced to nine months’ imprisonment, to commence on 19 November 2013, that is, to be wholly concurrent on the sentence for the burglary on that day.
A non-parole period of nine months be set, to commence on 19 June 2013 and end on 18 March 2014.
Burglary is a serious offence which involves the unauthorised entry of homes and offices for the purpose of committing serious offences. One of the most common of such offences committed is theft, whereby people’s property is taken. Often they have worked hard to acquire that property and, as well as its monetary value, it often has sentimental value. It is unsurprising, therefore, that the legislature, on behalf of the community, sets serious maximum penalties for such offences. The courts have made it clear that those maximum penalties are the appropriate yardstick by which the courts should assess the relative seriousness of the offence: see Muldrock v The Queen (2011) 244 CLR 120 at 133; [31].
Now appearing before me for sentence is Anthony Daniel McIver, who has pleaded guilty to burglary and theft. Burglary is an offence against s 311 of the Criminal Code 2002 (ACT) and renders Mr McIver liable to a maximum penalty of 1,400 penalty units (that is, a fine of $154,000), or imprisonment for fourteen years, or both. Theft is an offence against s 308 of the Criminal Code and the legislature has set a maximum penalty of 1,000 penalty units (that is, a fine of $110,000), or imprisonment for ten years, or both.
THE FACTS
Some time on 14 June 2013, between 8:00 am and 7:30 pm, Mr McIver entered residential premises at Bonython at a time when they were unoccupied. I was told that he was riding his bike past the premises and it was an opportunistic offence. He opened a number of cupboards and drawers and searched them, later taking the following items: a Canon digital camera, a black iPhone, twelve gold and silver sovereign coins, two bottles of whiskey, two wallets, two bottles of after shave lotion, approximately $70 in assorted Australian currency and three bank cards. The owner estimated the cost of the stolen items to be approximately $1,500. Mr McIver left his fingerprints on the sliding door, which he apparently used to gain entry to the premises. A subsequent examination of the fingerprints identified Mr McIver and, on 19 June 2013, he was arrested.
He appeared in court on 20 June 2013 and was remanded in custody. He has remained in custody since 19 June 2013. On 29 August 2013, he entered a plea of guilty but did not consent to the matter being dealt with in the Magistrates Court and was committed for sentence to this court.
SUBJECTIVE CIRCUMSTANCES
I had a useful Pre-Sentence Report about Mr McIver that had been prepared under Pt 4.2 of the Crimes (Sentencing) Act 2005 (ACT), but unfortunately some of the information in it was a little out of date. However, I heard oral evidence from the author as well.
Education, employment and relationship history
Mr McIver was born 24 years ago in the ACT, one of four children to his parents. Although living in Queensland in 2012 for about nine months, he has otherwise lived in this Territory. Mr McIver has never met his father. His mother had drug issues and died as the result of an overdose when Mr McIver was fourteen years old. He has contact with only one sister who, however, lives interstate. Mr McIver was placed with various foster families from the age of five years but periodically returned to his mother’s care until she died. He said that he was “happy when mum was around”. He also lived in refuges, as well as on the streets. His most recent placement when he was fifteen proved to be positive and he has continued to maintain contact with this family.
It is clear that Mr McIver’s difficult childhood has contributed to his continuing social difficulties and criminal activities. Mr McIver did not have a happy school experience and left after his mother died. His attendance had been poor and he was suspended and expelled from various schools. He has held various labouring positions in the construction industry since he left school and most recently has been employed by his foster father who runs a construction business. He proposes to resume that employment upon release from custody. That employment, however, is on a casual basis only, for about three days a week. I did not have any specific information about whether that employment will in fact be available to him. Mr McIver has an Occupational Health and Safety White Card.
He has had a relationship with a woman which ended around the time he committed the offences for which I am sentencing him. He had in fact a good, healthy relationship with her until she was hospitalised following a drink spiking incident. She was pregnant at the time but because of her ill health decided to terminate the pregnancy. She did so, however, without talking to him and the relationship rapidly unravelled. He lost the Housing ACT property he shared with her and is now liable for approximately $10,000 in damages to that property.
Use of alcohol and illicit substances
Mr McIver commenced drinking alcohol when he was twelve and consumed large quantities in his teenage years. Indeed, he estimated to the author of the helpful Pre-Sentence Report that he would drink daily until he “passed out”. He is now an occasional drinker only, though Corrective Services records show that he reported for probation supervision on a number of occasions during 2012 with a strong smell of alcohol on his breath. There was some uncertainty about that record and the author of the Pre-Sentence Report could not identify when that occurred.
Nevertheless, Mr McIver described to the author of the helpful report from the Court Alcohol and Drug Assessment Service (CADAS) that his current alcohol use was “occasional” and that he had not drunk alcohol for about seven months before he was taken into custody.
Mr McIver first smoked cannabis when he was twelve years of age, a very young age, and before he could realistically make an informed decision about whether to indulge in drug use. In his teenage years he smoked between ten and twenty cones of cannabis daily, but more recently his use has decreased to what he described as “every now and then”, although he has smoked cannabis while he has been in custody. He told the author of the CADAS report “I smoke it when I can get it”. Unsurprisingly, a urinalysis on 10 April 2012 detected cannabis.
Mr McIver began smoking ice at sixteen years of age. He quickly progressed to “very heavy use” and from about sixteen years of age he was injecting between two and five points daily. He said that most of his criminal activities have been for the purpose of obtaining money to buy these drugs, and urinalysis conducted on the day after his remand in custody proved positive for amphetamine and methamphetamine, as well as benzodiazepine. Mr McIver could offer no explanation as to the presence of benzodiazepine in the urinalysis. Mr McIver was said to have been spending $300 per week purchasing methamphetamines. The author of the Pre-Sentence Report felt that he had no control over his use.
Mr McIver first used heroin at eighteen years old, when he started injecting. He says he has only done this a few times and his most recent use was a few months before he was remanded in custody. He is, however, currently on a prescribed dose of 100 milligrams of methadone daily.
Mr McIver started smoking cigarettes when he was ten years old and he smokes between ten and twenty cigarettes daily.
Between the ages of 14 and 16, Mr McIver entered the Ted Noffs residential treatment program on a number of occasions. Unfortunately, he came into conflict with staff and felt that the interventions did not help him, particularly at the time when his mother died. He attended Directions ACT for drug and alcohol counselling on two occasions but lacked the motivation to continue. He did complete a nine-week residential program at Arcadia House in 2012. That does not, however, seem to have done much to resolve his drug use.
Apart from these occasions, he does not appear to have actively engaged in alcohol or drug rehabilitation and has not expressed any particular willingness to do so, despite his continued offending. This, it appears, is because he says he knows what to do. The problem, of course, is for him to actually do it.
Physical and mental health
Mr McIver appears to have good physical health and he has had no contact with Mental Health Services or mental health professionals.
Mr McIver has, however, few skills that he can use to manage his difficulties and was reluctant to engage. Although he was reluctant to engage, he appeared to be open to support that might assist him to achieve his identified goals.
Criminal history
Mr McIver has a long criminal record for a young man. He has over seventy offences recorded against him. On five occasions he has breached court orders. The vast majority of the offences, about twenty-eight, are traffic offences, many of them drink driving offences, which is not surprising, given his early experiences with alcohol. He has, however, thirteen offences of dishonesty, including theft and dishonestly using motor vehicles. Other than offences of resisting police, he has no offences of violence on his record, though he has been convicted of contravening a protection order. He also has five drug offences and four offences of damaging property on his record.
This appears to be his first burglary offence. Indeed, it is his first offence of such seriousness, but the leniency that can be offered him is limited because of his earlier offending, including the many dishonesty offences. He was sentenced, in 2009, to terms of imprisonment, which appear to have been served in full-time custody. He has been sentenced to a number of other terms of imprisonment, including one in New South Wales. More recently, the sentences of imprisonment have been fully suspended. The Pre-Sentence Report records that his compliance with community based orders has been problematic, with inconsistent reporting and subsequent breach reports. In custody, his behaviour has prompted actions for abuse of custodial staff, urinalysis testing positive to cannabis, possession of prohibited items and refusal to follow directions.
Mr McIver had clearly a very deprived childhood, without attachment to parents and a limited sense of family. This has led to significant social and development disadvantage leading to poor education outcomes and an inconsistent history of unskilled employment. His situation is also compounded by a lack of secure accommodation. He says, however, that when he leaves custody he will join the private rental market and is confident that he will be able to resolve his accommodation difficulties. His life has come to be dominated by issues of alcohol and drug use and, although there is some insight into how destructive these influences are, there appears to be limited intentions to change and his past negative experiences of residential rehabilitation do not give confidence that he is yet ready to address his drug and alcohol issues.
THE OFFENCE
Burglary is a serious offence. The maximum penalties make that clear. The effect on people whose homes have been entered and whose property has been taken is well known and destructive within the community. See R v Brewster [1998] 1 Cr App R 220. The courts are required to take stern measures to make it clear that such behaviour is completely unacceptable.
In general terms, the burglary and theft committed by Mr McIver are unremarkable for a domestic burglary and theft; it does appear that there were no particular aggravating factors, that is, no actual damage was caused by him in the entry into the residential premises and the description in the agreed statement of facts, confirmed by counsel for the prosecution, does not suggest that the property was ransacked. Further, there were no occupants present when Mr McIver entered the property, which would have been an aggravating factor. The amount taken was significant but not substantial.
Mr McIver explained to the author of the Pre-Sentence Report that the offence occurred at the end of his relationship with his girlfriend when he “was in a dark place”. He said that he was “pretty scattered” and “hanging out with friends, not working and playing [the] ‘pokies’”. He was also spending about $100 a day purchasing methamphetamines, although that may, in reality, be something like $300 per week. The offences were motivated by the need to obtain money in order to live, though much of his money seems to have been spent on drugs on which he was dependent.
Nevertheless, I note that he was arrested at a club where he was playing the poker machines. He says that he has made some substantial earnings from the poker machines in the past and it may be that he was attempting to do the same on this occasion. He accepted that this was not the right way to go about meeting his needs and that he should work to get what he wants. He accepted that he had deprived people of possessions that the owners had worked hard to obtain.
Mr McIver’s culpability is significantly increased, however, because he was already on a number of good behaviour orders at the time of the offending, two of which were offences of dishonesty themselves.
CONSIDERATION
I take into account Mr McIver’s plea of guilty. It was entered at an early stage and he is entitled to a significant discount for the early plea.
I take into account the objective circumstances of the offence, which I have already described. It is a serious offence and must be taken seriously, but it is not a particularly serious version of the offence. While the property taken was no doubt significant to the owners, the value was in the moderate range. There is no suggestion, however, that any of the property was recovered. I note that the range of sentences for such offences in this Territory seem to be between twelve months and two years and six months.
I take into account Mr McIver’s subjective circumstances.
I also take into account that this is the first burglary on his record, although he has committed a significant number of dishonesty offences in the past. It appears that Mr McIver has made inadequate attempts to address his criminal behaviour, and especially the drug addiction, which is the motivation for it.
I note that he has been sentenced to imprisonment before. I accept that he has some insight into his offending behaviour and the effect it has had on other people.
Although he is still a relatively young man, he is now reaching the level of maturity where he cannot expect, particularly with his record, the courts to grant leniency because of his age. His continued offending also makes that very difficult.
While it is clear that his deprived background is of significance and will not necessarily diminish over time (Bugmy v The Queen (2013) 87 ALJR 1022 at 1032; [43]-[44]), such circumstances are not always mitigatory, and his failure to address his problems may require protection of the community by a response, such as imprisonment, but moderated to recognise the effect of his problematic upbringing.
Sentencing Mr McIver is complicated by other factors. On 3 October 2012 Mr McIver was sentenced in the ACT Magistrates Court for an offence of driving whilst disqualified and driving with a prescribed concentration of alcohol. On each charge, he was sentenced to six months’ imprisonment that was suspended and a good behaviour order made. These offences breach those good behaviour orders. In fact, on that date, he was also sentenced for five other offences on which good behaviour orders were made. One of those was a sentence for a breach of a suspended sentence imposed on 8 July 2011. In re-sentencing him for that breach, the original sentence was re-imposed, that is, a sentence of imprisonment for three months, which was suspended and a good behaviour order made. I had details of the offences and the facts of them, all of which I have taken into account. I do not need to recount them here.
I need to deal with each of these breaches, but not, having regard to totality, to impose them in full or entirely cumulatively.
Finally, I note that Mr McIver was imprisoned in New South Wales on 16 February 2010. He was released on parole on 17 February 2011. He has breached that parole order and the balance of his parole, five months and one day, is yet to be served in New South Wales. It seems that any release from custody in the Territory will result in him being taken into custody in New South Wales to serve the balance of that parole. Given the age of that matter, that is a relevant factor to take into account in respect of the totality, for the totality of the custody he is now certain to face should not be crushing.
Mr McIver, please stand:
1. I convict you of burglary on 14 June 2013.
2. That conviction constitutes a breach of each of the seven good behaviour orders made on 3 October 2012.
3. I cancel each of those orders.
4. In respect of each of those orders, other than for the breach of the attempting to take a motor vehicle without consent, I sentence you to six months’ imprisonment, to commence on 19 June 2013.
5. For the offence of attempting to take a motor vehicle without consent, I sentence you to three months’ imprisonment, to commence on 19 November 2013, that is, to be cumulative as to two months on the earlier order.
6. For the burglary, I sentence you to twelve months’ imprisonment, to commence on 19 November 2013, that is, to be cumulative as to eleven months on the sentence for the breach of good behaviour order. Had you not pleaded guilty I would have sentenced you to sixteen months’ imprisonment.
7. I convict you of theft of property on 14 June 2013.
8. I sentence you to nine months’ imprisonment, to commence on 19 November 2013, that is, to be wholly concurrent on the sentence for the burglary on that day. Had you not pleaded guilty, I would have sentenced you to twelve months’ imprisonment.
9. That is a total of seventeen months’ imprisonment to commence on 19 June 2013.
10. I set a non-parole period of nine months, to commence on 19 June 2013 and end on 18 March 2014.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 31 March 2014
Counsel for the plaintiff: Ms K James
Solicitor for the prosecution: ACT Director of Public Prosecutions
Counsel for the defendant: Ms H Cory
Solicitor for the defendant: Legal Aid (ACT)
Date of hearing: 6, 12, 19 December 2013
Date of judgment: 19 December 2013
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