R v Barrett
[2016] ACTSC 167
•6 July 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Barrett |
Citation: | [2016] ACTSC 167 |
Hearing Dates: | 6 July 2016 |
DecisionDate: | 6 July 2016 |
Before: | Murrell CJ |
Decision: | Sentenced to 31 months’ imprisonment with a non-parole period of 22 months. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – knowingly concerned in burglary – on conditional liberty – very strong subjective circumstances – lengthy criminal history CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Parole – offence committed while on parole – high risk of re-offending – unknown rehabilitation prospects – high nonparole period imposed – parole conditions specified |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 35 Criminal Code 2002 (ACT) ss 45, 311 |
Parties: | The Queen (Crown) Luke Nathan Richard Barrett (Offender) |
Representation: | Counsel Ms P Burgoyne-Scutts (Crown) Ms L Taylor (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 26 of 2015; SCC 27 of 2015 |
MURRELL CJ:
The offender adhered to a plea of guilty to the offence that, on 27 October 2014, he was knowingly concerned in a burglary contrary to ss 45 and 311 of the Criminal Code 2002 (ACT) (Criminal Code). The maximum penalty is 14 years' imprisonment.
The offender was committed to the Supreme Court for trial on counts of aggravated burglary and minor theft. After the offender obtained legal representation, on about 8 March, discussions commenced concerning the fact that there was no evidence that the offender had entered the premises in question. Immediately after a new indictment was presented, on 18 March 2016, the offender entered a plea of guilty to the offence in question. The plea was entered five days before the trial was due to commence.
Since his arrest on 15 November 2014, the offender has been in custody solely in relation to this offence.
At the time of the offence, the offender was on parole in New South Wales for an offence of break, enter and commit a serious indictable offence in company. On 2 October 2014, the New South Wales State Parole Authority had issued an arrest warrant for the offender to serve the balance of the sentence, a period of one year, eight months and 19 days.
Mr Powell, the alleged co-offender, has been charged with aggravated burglary, taking a motor vehicle without consent and theft. He is yet to be tried. Currently, he is in custody in New South Wales on unrelated offences.
Facts
The offence occurred on the night of Sunday, 26 October 2014, at a large semi-rural residential property at Pialligo in the ACT. One house on the property was occupied by the victim, his wife and adult son. A second residence was occupied by the victim's sister. The offender and co-offender drove to the property. The offender remained outside the property to keep a lookout.
Between 2:00 am and 6.30 am on Monday, 27 October 2014, the co-offender entered the bar area outside the main residence. He removed an alcohol dispenser containing four bottles of spirits. He then entered an unlocked garage and removed a .410 single barrel shotgun and a green gun-bag containing a few shells for the shotgun. The co‑offender took a utility vehicle from where it was parked next to the house. The vehicle was unlocked and the keys were inside it. The co-offender drove away in this vehicle, taking the alcohol dispenser and bottles, the shotgun, the shells and the gun‑bag with him.
On 3 December 2014, the vehicle was recovered from the offender's cousin. The other items were not recovered.
Objective seriousness
The offence was planned. The offenders drove to the property, and the offender was tasked to act as a lookout. The offence occurred in the middle of the night at the home of several people. Fortunately, it did not involve entry into the two residences on the property; the stolen items were taken from areas that were outside the residences. The stolen items included a vehicle that was of significant value, and a shotgun and shells. The vehicle was recovered, but it is of concern that the shotgun and shells were not recovered.
The role of the offender was significantly less than that of the co-offender as he merely kept a lookout. There is no evidence that the offender was aware that the co-offender specifically intended to take the vehicle, the shotgun or the shells. It may have been an opportunistic decision by the co-offender. However, the offender was aware that the co-offender intended to steal something.
While the offence was of significant objective seriousness, given the offender's role and the other matters to which I have referred, it was far from being in the worst category of offences of this nature.
Subjective circumstances
The offender is 33 years old. He was 31 years old at the time of the offence.
Criminal history
He has a very long criminal history. He first appeared before an adult court in 2001. He has been sentenced for many offences of dishonesty, including burglary offences and offences of taking or driving a motor vehicle without consent. In 2002, he was first sentenced to imprisonment for offences of burglary and taking or driving a motor vehicle without consent. In 2005, for an offence of aggravated break, enter and commit a serious indictable offence, he was sentenced to four years and three months' imprisonment with a nonparole period of 15 months. From about mid-2007, the offender was in custody for a period of at least seven years. The last sentence that the offender served was a sentence of six years' imprisonment that ran from 21 June 2010 to 20 June 2016, with a nonparole period that expired on 20 March 2014. The offender instructed his legal representative that he was released in June or July 2014.
The offender was serving a significant parole period that had commenced only a few months prior to the subject offence, which was the same type of offence as that for which he was serving parole. The fact that the offender was on conditional liberty for a similar offence is a significant consideration.
His lengthy criminal history for similar offences gives the Court little scope to afford leniency.
Upon the offender's release from custody in the ACT, he will face the New South Wales State Parole Authority in relation to an alleged breach of parole, which may relate to the offender moving to the ACT without the prior approval of the New South Wales State Parole Authority.
Background
The offender has a background of extraordinary deprivation, which has affected him in the most profound ways. The offender tendered a report from a psychologist, Ms Taylor, which became Exhibit A.
Ms Taylor refers to sustained physical and emotional abuse from infancy; incidents involving the offender's step-father regularly beating him, including whipping him with ropes, tying him up and, on one occasion, attempting to drown him. The physical abuse was associated with personal denigration. The offender was required to witness vicious domestic violence perpetrated by his step-father against his mother. His step‑father ceased living with the offender's mother when the offender was about nine years old.
The offender's mother had many problems herself, and after the offender's step-father left, she reportedly associated with an outlaw motorcycle gang. Through that association, the offender was exposed to antisocial behaviour, including violence and drug abuse, and he was personally humiliated, threatened, and physically and sexually abused. It is alleged that, at one stage, the offender and his brother were kidnapped and held for a two-week period. He did not tell his mother about the abuse until much later.
The offender's mother had a series of relationships. Meanwhile, she engaged in prostitution and the offender was exposed to prostitution in his home. She was a drug user. Nevertheless, the offender has always harboured very fond feelings for his mother and believes that she was doing her best.
The offender ran away from home when he was 11 years old to escape violence and abuse. He was taken into care. However, while in care, he was again subjected to sexual abuse on many occasions. He ran away from refuges and foster care placements and was largely homeless from the age of 12.
It was not until the offender was 17 years old that he revealed the sexual abuse and the full history of physical abuse to a case-worker. His mother was then informed and, not unnaturally, she struggled to cope with the information. Her mental health, which was already poor, deteriorated and she committed suicide. The offender continues to harbour feelings of guilt and blame in relation to his mother. Her death meant that he lost the person to whom he has been closest in his life.
The offender attempted to establish a relationship with his biological father, who had always been absent from his life, but the relationship was fraught with difficulties and ultimately it was not productive.
The offender had learning difficulties at school, no doubt associated with his many problems at home and their impact upon his mental state. He never learned to read properly. However, it is said that he is good at observing others undertaking tasks and can learn by observation. He has taught himself to play the guitar and piano and he is interested in painting. He has also completed his Year 10 School Certificate, a considerable achievement given his disrupted and unstable life.
After leaving school, the offender completed a number of certificates, including certificates in welding. However, because of the vast amount of time that he has spent in custody, he has never worked in paid employment. He is motivated to seek work in the welding industry post-release.
He has two children, the product of brief relationships. He has consciously decided that he will not form a close relationship with his children unless and until he himself is rehabilitated.
The offender has never developed relationships of a pro-social nature.
One source of support has been the Winnunga Nimmityjah community through which the offender has received support in a variety of areas.
Drug use
The offender has never had the benefit of a socially positive adult role model and has been subjected to abuse of varying types throughout his life. The abuse has caused him to turn to drugs and has destabilised him mentally. He continues to struggle with dual diagnosis.
The offender commenced abusing drugs at about nine years of age when his mother introduced him to cigarettes and cannabis. He commenced using methamphetamine at 13 years of age when introduced to the drug by another young homeless person. He has used methamphetamine and heroin intravenously. His drug use has largely been for self-medication purposes. He has become heavily addicted.
The offender is receiving Suboxone, following a failed trial on methadone, and he hopes to continue on this medication post-release. He has attended, but never completed, residential rehabilitation programs for drug addiction. The offender is not motivated to complete such programs in the community. However, he has completed custody-based drug and alcohol programs, and he is very motivated to undertake the Solaris Program while in custody in the ACT.
Mental health
The offender suffers from post-traumatic stress disorder. The condition commenced when the offender was nine years old and it has worsened since then. The disorder is related to trauma and the exposure to abuse.
The offender experiences anxiety, including phobia associated with being in large crowds and meeting new people. He has experienced symptoms of depression since childhood and has made several suicide attempts. The most recent attempt was about 12 months ago in custody. He has a history of self-harm by cutting, which commenced in adolescence. The last such incident occurred about six months ago.
The offender has also reported auditory hallucinations. He receives a monthly depot injection of Paliperidone, and antipsychotic medication, which he has found to be helpful in reducing symptoms of psychological distress. He would like to continue receiving that medication when released into the community.
The offender reported to the psychologist that at the time of the offence he was experiencing chronic suicidal ideation, heightened paranoia and heightened anxiety. As he had been released only a few months earlier, following an extended period of incarceration, he was having difficulty re-adjusting to the community. The psychologist states that it is likely that his deteriorating mental health, vulnerability to coercion by his peers, and substance abuse contributed to poor choices and engagement in the offending behaviour.
The psychologist notes two positive matters: the services provided by the Winnunga Nimmityjah community and the offender’s expression of remorse in relation to the criminal behaviour and insight into the need for abstinence from drugs and engagement in long-term therapy. The psychologist recommends engagement with a psychiatrist, a psychologist and persons who would assist in relation to employment opportunities. The offender will require intensive case management to ensure appropriate referrals post-release.
Other sentencing considerations
The sentencing exercise is a difficult one, neither because it is difficult to assess the objective seriousness of the offence nor because the offender's subjective circumstances are difficult to assess. The subjective circumstances are overwhelmingly strong, but against his criminal history that can only assist him to a limited extent.
The appropriate discount under s 35 of the Crimes (Sentencing) Act 2005 (ACT) for the plea of guilty is 15%. The starting point for the sentence is three years' imprisonment.
The offender’s criminal history, the fact that the offence was committed shortly into a parole period, the high risk that he will re-offend and the unknown prospects of rehabilitation call for a relatively high nonparole period of 22 months’ imprisonment.
Sentence
The offender is convicted and sentenced to 31 months' imprisonment from 15 November 2014 to 14 June 2017.
I fix a nonparole period to expire on 14 September 2016. Parole is subject to the conditions that the offender:
(a)accept the supervision of ACT Corrective Services for the whole of the parole period;
(b)report to ACT Corrective Services within one working day of his release from custody;
(c)submit to all requests for drug testing;
(d)report all illicit drug use to his supervising officer without the need for drug testing;
(e)attend on any psychiatrist or psychologist recommended by ACT Corrective Services and comply with any recommended treatment;
(f)authorise the health care professionals to release information to ACT Corrective Services; and
(g)comply with any medication regime recommended by ACT Corrective Services or any health care professional to whom he is referred.
| I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell Associate: Anneke Bossard Date: 25 July 2016 |
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