R v AS
[2014] ACTSC 87
•30 April 2014
ACT SUPREME COURT
Case Title: | R v AS | |
Medium Neutral Citation: | [2014] ACTSC 87 | |
Hearing Date: | 10 April 2014 | |
DecisionDate: | 30 April 2014 | |
Before: | Burns J | |
Decision: | See [26]–[28] | |
Catchwords: | CRIMINAL – SENTENCE – burglary – theft – aggravated burglary – juvenile for some offences before court – six series of offences – not engaged in rehabilitation in the past – young person opted for sentence rather than attend rehabilitation as part of Deferred Sentence Order | |
Legislation Cited: | Criminal Code 2002 (ACT), ss 308, 311, 312 Crimes Sentencing Act 2005 (ACT), Ch 8A | |
Parties: | The Queen AS | |
Representation: - Counsel | Mr J Lundy (Crown) Mr J Robertson (Defence) | |
- Solicitors | ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Defence) | |
File Number: | SCC 209 of 2013 | |
R v AS
SENTENCE
Anthony Schuster, you appear for sentence today on four counts of burglary (s 311 Criminal Code 2002 (ACT)), two counts of aggravated burglary (s 312 Criminal Code 2002) and six counts of theft (s 308 Criminal Code 2002). In addition, I am asked to take into account when sentencing you with respect to one of the counts of burglary, an offence of assault which is contained on a List of Additional Offences. For convenience, I will refer to the individual charges by their Magistrates Court numbers.
You were charged with these offences on 6 December last year at which time you immediately entered pleas of guilty to all charges and you were committed for sentence to this court. I note that the maximum penalty with respect of the offence of theft is 10 years’ imprisonment. The maximum penalty with respect to the offence of burglary is 14 years’ imprisonment and for the offence of aggravated burglary is 20 years’ imprisonment.
I note that offences in respect of burglary of residential premises are calculated to cause feelings of violation and insecurity in the victims of those offences who have every right to feel that they should be secure within their own homes.
FACTS
The first series of offences occurred on 3 March 2011 and those are offences 8987 and 8988 of 2013. They are offences of theft and burglary respectively. That offence of burglary occurred in residential premises and entry was gained by forcing a window. The offence occurred within daylight hours. The value of the goods that were stolen was approximately $5,000.00. You were identified by fingerprints. I note that you were 16 years old at the time of that offence.
The second series occurred on 3 May 2011 and charges 9118 and 9119 of 2013 being offences of theft and aggravated burglary. The circumstance of aggravation with respect to the offence of aggravated burglary is being in company with a co-offender. I note that your co-offender was older than you and, in fact, was 18 years old. At that time you were 16. Again, the burglary occurred in residential premises with entry being obtained by forcing a sliding door. The burglary occurred in daylight hours and the value of the property which was stolen was approximately $10,000.00. Again, you were identified by fingerprints.
The third series of offences occurred on 28 June 2013. At that time you were 18. Those offences are 9138 and 9139 of 2013, being offences of theft and aggravated burglary. Again, the circumstance of aggravation with respect to the offence of aggravated burglary was being in company with a co-offender. Again, your co-offender, who was a different co-offender to the one with respect to Charge 9119 of 2013, was older than you and was, at that time, 19 years old. Again, the offence occurred in residential premises with entry being obtained by forcing a door. The burglary occurred during daylight hours and the value of the property stolen was approximately $5,000.00. Again, you were identified by fingerprints.
The fourth series of offences occurred on 5 July 2013. Those are offences 9170 and 9040 of 2013, being offences of theft and burglary. The offences occurred in residential premises with entry being obtained by forcing a window. The offences, again, occurred in daylight hours and the value of the items stolen was approximately $4,300.00. You were identified by fingerprints from the scene.
The fifth series of offences occurred on the 7 July 2013 and are offences 9043, 9044 of 2013, being offences of theft and burglary. With respect to that offence of burglary you also asked that I take into account offence 9045 of 2013, being a common assault which is found on the List of Additional Offences. Those offences occurred in residential premises with entry being obtained by smashing a window. They occurred sometime between 4.00 p.m. and 7.00 p.m. on that date. You were still in the premises at 7.00 p.m. on the 7 July last year when the occupant returned home. At that time he was holding a pizza box. You approached him and gratuitously punched him in the face before leaving. The value of the goods which was stolen was $1,100.00 and you were again identified by way of fingerprints. I note that you were subsequently interviewed by police with respect to that series of offences, but you denied any involvement.
The sixth series of offences occurred on the 12 July 2013 and are offences 9046 and 9047 of 2013, being offences of theft and burglary. Those offences also occurred in residential premises with entry being obtained by forcing a rear door. The value of the goods stolen was nearly $14,500.00. You were identified, again, by fingerprints taken from the premises.
CONSIDERATION
I note that you have a significant criminal history, including prior convictions for going equipped for theft, aiding and abetting aggravated burglary, theft, unlawful possession of stolen property, damaging property and assault and affray. There is little leniency to which you are entitled based upon that criminal history.
I note also that a number of items which were stolen in the course of the thefts, which are before me today, were items of jewellery and such which were likely to have sentimental value. Indeed, there was some reference to that in the Victim Impact Statements which were tendered in the course of the hearing. Of course much of the property also had significant economic value. It appears that little, if any, of that property has been recovered, and it does not appear that you have provided any assistance in recovering any of the stolen property. If you had you would, of course, have been entitled to a degree of leniency.
A Pre-Sentence Report was prepared for the purposes of the sentence hearing. I note that you are currently 19 years old. You were born in New Zealand and moved to Australia at age six. You were raised by your mother and you never met your natural father. You had a strained relationship with your mother and step-father but they are willing to continue to provide you with some support and I note that you are hoping to return to their home when you are ultimately released.
You left school at the end of Year 9, but completed Year 10 whilst you were in Youth Detention. You have virtually no employment history but you do propose taking up a carpentry apprenticeship with your step-father when you are released from custody.
You told the author of the report that the majority of your friends are involved in crime or similar activity.
You commenced the use of alcohol and cannabis at age 14. You continued your use of cannabis until you were remanded in custody. You commenced methylamphetamine use as an adult sometime around July 2013.
You told the author of the report that you have not used illicit drugs since entry into the Alexander Maconochie Centre which is, to a certain extent, corroborated by a negative induction urinalysis. I note you have not engaged seriously with alcohol and drug programs in the past. It is somewhat encouraging that you have made enquiries about entry into residential rehabilitation at Peppers Illicit Drug Program in New South Wales whilst you were within the AMC. However, it is less encouraging that you opted to be sentenced with respect to these matters, rather than to attend rehabilitation as part of a Deferred Sentence Order.
The author of the report assesses you at being at high risk of reoffending due to your history of drug abuse, unstable accommodation, anti-social peer group, your attitudes, your lack of employment and also lack of appropriate leisure and recreational activities. I agree with that assessment.
I note that you have been assessed as suitable for periodic detention; however, in my opinion that is not a suitable disposition with respect to these matters. I am not at the present time convinced that you have entirely appropriately dealt with your drug abuse issues.
I note that you expressed a degree of remorse to the author of the Pre-Sentence Report.
I take into account, in sentencing, your pleas of guilty. I accept they demonstrate a level of remorse and that they also have significant utilitarian value. On the other hand, I take into account the fact that there was a strong Crown case against you with respect to each of these offences. I will reduce by approximately 25 percent the sentences that I would otherwise have imposed.
I also take into account your youth. In particular, in sentencing you as a juvenile offender for those offences which occurred when you were 16, I take into account the provisions of Ch 8A of the Crimes Sentencing Act 2005 (ACT).
With respect to all of the matters I note that there is an obligation to focus more on rehabilitation for a young offender than would be the case with a more mature offender.
I accept that you have reasonable prospects for rehabilitation but you, first, must address your drug abuse issues and also find suitable employment.
SENTENCE
In my opinion, at the present time, nothing less than an immediate term of imprisonment is appropriate with respect to the charges before the Court.
I will, however, reflect your youth and the other factors to which I have referred not only in determining the appropriate head sentences, but also in determining the extent to which those sentences should be served concurrently and also in providing for the opportunity of an earlier than usual release.
Would you stand, please?
i.With respect to Charge 8988 of 2013, the burglary on 3 March 2011, you are convicted and sentenced to eight months’ imprisonment commencing on 6 December 2013 and expiring on 5 August 2014.
ii.On Charge 8987 of 2013, the charge of theft on the same date, you are convicted and sentenced to six months’ imprisonment commencing on 6 December 2013 and expiring on 5 June 2014.
iii.On Charge 9119 of 2013, the aggravated burglary on 3 May 2011, you are convicted and sentenced to 11 months’ imprisonment commencing on 6 March 2014, and expiring on 5 February 2015.
iv.On Charge 9118 of 2013, the charge of theft on the same date, you are convicted and sentenced to nine months’ imprisonment commencing on 6 March 2014 and expiring on 5 December 2014.
v.On Charge 9139 of 2013, the charge of aggravated burglary on 28 June 2013, you are convicted and sentenced to 18 months’ imprisonment commencing on 6 June 2014 and expiring on 5 December 2015.
vi.On Charge 9138 of 2013, the charge of theft on the same date, you are convicted and sentenced to nine months’ imprisonment commencing on 6 June 2014 and expiring on 5 March 2015.
vii.On Charge 9040 of 2013, the charge of burglary on 5 July 2013, you are convicted and sentenced to 13 months’ imprisonment commencing on 6 September 2014 and expiring on 5 October 2015.
viii.On Charge 9170 of 2013, the charge of theft on the same date, you are convicted and sentenced to seven months’ imprisonment commencing 6 September 2014 and expiring on 5 April 2015.
ix.On Charge 9044 of 2013 the offence of burglary on 7 July 2013, and taking into account the offence of assault contained on the list of additional offences, you are convicted and sentenced to 18 months’ imprisonment commencing on 6 March 2015, and expiring on 5 September 2016.
x.On Charge 9043 of 2013, the charge of theft on the same date, you are convicted and sentenced to six months’ imprisonment commencing on 6 March 2015 and expiring on 5 September 2015.
xi.On Charge 9047 of 2013, the charge of burglary on 12 July 2013, you are convicted and sentenced to 13 months’ imprisonment commencing on 6 February 2016 and expiring on 5 March 2017.
xii.And on Charge 9046 of 2013, the charge of theft on the same date, you are convicted and sentenced to 11 months’ imprisonment commencing on 6 February 2016 and expiring on 5 January 2017.
This equates to an aggregate sentence of three years’ and four months commencing on 6 December 2013 and expiring on 5 March 2017. I do not suspend any of the sentences imposed or any part of the sentences imposed for the offences you committed as a juvenile, due to the imposition of sentences of imprisonment for adult offences, which are cumulative upon or partly cumulative upon the juvenile offences.
I set a non-parole period expiring on 5 August 2015.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Sentence herein of his Honour Justice Burns.
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