R v Barrett
[2015] ACTSC 280
•3 September 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Barrett |
Citation: | [2015] ACTSC 280 |
Hearing Date(s): | 27 August 2015 |
DecisionDate: | 3 September 2015 |
Before: | Burns J |
Decision: | See [31] – [40] |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – particular offences – dishonesty offences – dishonestly driving a motor vehicle without consent – driving while disqualified – attempted burglary – attempted aggravated burglary – resisting a public official – possessing an offensive weapon with intent to cause actual or threatened violence – theft – possessing an article with intent to use in a burglary – burglary. |
Parties: | The Queen (Crown) Rodney Thomas Barrett (Offender) |
Representation: | Counsel Mr C Wanigaratne (Crown) Mr R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number(s): | SCC 141 of 2015; SCC 142 of 2015 |
BURNS J:
Rodney Barrett, you have adhered to pleas of guilty entered in the Magistrates Court in relation to the following offences: one offence of dishonestly driving a motor vehicle without consent on 3 December 2014; one offence of driving whilst disqualified on the same date; one offence of attempted burglary on 29 January 2015; one offence of attempted aggravated robbery on the same date; one offence of resisting a public official on the same date; two offences of possessing an offensive weapon with intent to cause actual or threatened violence on the same date; one offence of theft on the same date; one offence of possession of an article with intent to use in a burglary on the same date; and one offence of burglary on that date. Some of these charges were committed for sentence from the Magistrates Court, while others were transferred to this Court as related matters.
Facts
A Statement of Facts was placed before the Court. I will not go through the facts in detail. It is sufficient to note that, on 3 December 2014, you drove a white Nissan Navara motor vehicle belonging to a Mr Martin O'Sullivan. That vehicle had been taken without Mr O'Sullivan's permission sometime between 9 pm on 26 October and 6.30 am on 27 October last year. At the time you drove this vehicle, you were disqualified from driving.
On 29 January 2015, you attempted to enter premises in Palmerston without the permission of the owner of the residence. At the time, you had an intention to take property without the permission of the owner. I note that this offence occurred in the early afternoon, and you were confronted at a sliding door as you attempted to enter the premises by a female occupant.
Later on the same date, you attempted to steal a motor vehicle belonging to a Mr Marcus Eagles. During the attempted theft you threatened Mr Eagles by brandishing a metal pole.
Later on the same day, you attempted to enter different premises in Palmerston without the permission of the owner. At that time, you had an intention to steal property from the premises. This offence again occurred in the early afternoon and there was a female occupant inside the house who was forced to flee the house when you confronted her.
At around this time, police attended the vicinity of that address in Palmerston and saw you fleeing. When police saw you, you were ordered to stop, but you continued to run, forcing police to release a police dog to pursue you. When you were apprehended by police, you were ordered to drop the weapons you were carrying, which included a metal pole and a knife. When you were searched by police, a number of items, including gloves, a beanie, a screwdriver and a knife, were found in your possession. These items were intended to be used in the commission of a theft or burglary. Police discovered that the metal pole and knife that you had been carrying belonged to the partner of the female whom you had confronted in the course of the burglary, and you did not have permission from the owner of that property to take those items.
Procedural history
The maximum penalty for the offence of dishonestly driving a motor vehicle without consent is five years' imprisonment, a fine of $150,000.00, or both. In addition, a disqualification from holding a licence may be imposed. The maximum penalty for the offence of driving whilst disqualified as a first offender is six months' imprisonment, a fine of $7,500.00, or both. The relevant disqualification period for an offence of driving whilst disqualified as a first offender is an automatic period of 12 months. The maximum penalty for the offence of burglary, or attempted burglary, is 14 years' imprisonment, a fine of $210,000.00, or both. The maximum penalty for the offence of aggravated robbery, or attempted aggravated robbery, is 25 years' imprisonment, a fine of $375,000.00, or both. The maximum penalty for the offence of resisting a public official is two years' imprisonment, a fine of $30,000.00, or both. The maximum penalty for the offence of aggravated burglary is 20 years' imprisonment, a fine of $300,000.00, or both. The maximum penalty for the offence of possessing an offensive weapon with intent to cause actual or threatened violence is one year imprisonment, a fine of $2,000.00, or both. The maximum penalty for the offence of theft is 10 years' imprisonment, a fine of $150,000.00, or both. The maximum penalty for the offence of possessing an article with intent to use in a burglary is five years' imprisonment, a fine of $75,000.00, or both.
The offences of driving whilst disqualified and dishonestly driving a motor vehicle, which occurred on 3 December 2014, were both before the Magistrates Court on 4 December that year. The remaining offences were first before the Magistrates Court on 30 January this year. You entered pleas of guilty to all charges on 12 June this year.
You were apprehended and arrested with respect to the offences of 3 December last year on the same date. You were remanded in custody from 3 December to 11 December 2014. You were granted bail in the Magistrates Court on 11 December last year. Therefore, you spent a total of nine days in custody in relation to those offences.
You were again apprehended and arrested with respect to the offences of 29 January 2015 on that same date. These offences were committed while you were granted bail in relation to the offences of 3 December last year. You have remained in custody from 29 January until today. Therefore, you have spent a total of 218 days in custody in relation to the offences of 29 January 2015.
Consideration
You have a lengthy criminal record, including multiple convictions for taking, driving or riding in a motor vehicle without the owner's consent. You also have multiple convictions for dishonesty offences, including burglary, and multiple convictions for offences of violence. You have served a number of terms of imprisonment. It is clear that you are entitled to no leniency in sentencing for the present matters on the basis of your prior criminal history.Turning to your subjective features, I note that you are 31 years old and that you are an Aboriginal man. You come from a dysfunctional family background. The Pre Sentence Report, which was presented at the sentence hearing, notes that you have a poor history of compliance with community based orders. You told the author of the Report that you are the father of six children, who reside with their respective mothers, but you reported regular contact with those children.
You also have continuing contact with your parents, and they have offered to support you. You reported being effectively homeless all your adult life. After leaving school once you completed Year 10, you worked in a number of labouring positions. You obtained a number of certificates enabling you to work in the construction industry. Unfortunately, you have not worked since 2009 due to an injury which you sustained in a motor vehicle accident.
You have a long and documented history of substance abuse since approximately 16 years of age. A preliminary drug test administered on you when you entered the Alexander Maconochie Centre on 31 January this year was positive for methamphetamines, opiates and amphetamine. You told the author of the Pre Sentence Report that you have used illicit substances during your current period on remand. You also said that you have been injecting, or that you had been injecting, up to one and a half grams of methamphetamine daily in the period leading up to your arrest. A drug assessment tool administered on 31 July this year indicated that you had been using drugs at a severe level in the past 12 months. To your credit, you have expressed a desire to the author of the Pre Sentence Report to treat your substance abuse issues by attending a residential rehabilitation program and you have made inquiries about and undertaken an assessment for such a placement at Oolong House. You did previously attend a residential rehabilitation program in 2003, but left before completing the program.
You have an ongoing physical health issue stemming from your earlier car accident, for which you receive treatment and which may require surgery in the future. You are also reported to have mental health issues, for which you receive treatment. Further information about this issue is provided in other reports, to which I will refer in a moment.
The author of the Pre Sentence Report noted that you expressed limited victim empathy and attributed your offending behaviour to being under the influence of methylamphetamine and having paranoid thoughts. You are assessed as at a high risk of reoffending, mainly because of your substance abuse, but also because of your lack of accommodation, lack of employment, mental health issues and your attitudes. You are assessed as unsuitable for periodic detention and community service, although neither was a realistic sentencing option in this case.
A CADAS Report provided further information about your background, your drug and alcohol use and your mental health. You reported that your parents were alcoholics and that you were placed in foster care from ages 7 to 15, during which time you were the subject of verbal and physical abuse. You reported that you are one of nine children, although three of your siblings are now deceased. You told the author of the Report that a number of close family members have died recently, including some that died from drug-related causes.
You reported first using alcohol at age 13, with regular use from age 16. You reported that, when you are not in custody, you consume half a case of beer and two 750 mil bottles of spirits on a daily basis, saying that this helps you deal with anxiety.
You reported first use of cannabis at age 13, with regular use from age 15. Between the ages of 15 to 19 you would smoke between one and seven grams daily. You reported that you reduced your use of cannabis due to paranoia and, in your more recent years, your use has been one or two cones every couple of weeks. You reported that you commenced using intravenous amphetamines at age 15, with regular use from that age. You commenced using crystal methamphetamine at approximately age 22. You reported daily use of crystal methamphetamine, using between half a gram and three and a half grams daily, depending upon the quality of the drug that was available to you. You also reported sporadic use of cocaine and opioids. When you are not in custody, you also regularly use ecstasy on weekends.
You told the author of the Report that you were diagnosed with anxiety, depression and paranoid schizophrenia in 2007 and that you are currently receiving medication for these conditions. You also reported a suicide attempt in 2007 and that you have continuing thoughts of suicide.
You told the author of the Report that you wanted to attend a residential drug rehabilitation facility and that you felt more ready to accept help and complete a program than you had been in the past.
A letter dated 12 August this year from ACT Mental Health was tendered at the sentence hearing. It notes diagnoses of psychotic disorder due to multiple drug use and use of other psychoactive substances and a mental and behavioural disorder due to the use of other stimulants.
It is difficult to give significant weight in sentencing you to the limited material concerning your mental health which has been placed before me. There is nothing in this material to suggest that any mental health condition from which you suffer was connected with your offending behaviour. There is nothing to suggest that your moral culpability for your offending is reduced to any significant extent by an underlying mental disorder. Nor does the material before me suggest that you cannot be adequately treated in custody, or that a custodial sentence will exacerbate your condition, or that any underlying mental health disorder will make custody more difficult for you. I will take into account the evidence concerning your mental health as part of the evidence concerning your subjective circumstances generally.
At the sentence hearing, a letter from the senior trainer in education at the Alexander Maconochie Centre was tendered which speaks of you showing a strong and intense commitment to education and work programs since having been remanded in custody and of you actively and energetically participating in the Culture and Land Management Course. You have also assisted with the care and weeding of garden beds in the horticulture section, as well as propagating plants and potting up plants. You have shown a keen and deep interest in that area. You have also successfully completed the Construction Industry Induction, which qualifies you for a construction induction white card which will assist you in gaining employment in the building and construction sector. You are also an active participant in the Aboriginal Art Program. This material suggests that, when are not using illicit drugs, you have a number of qualities and abilities which would enable you to lead a normal and productive life in the community. Clearly, the key to achieving that outcome is addressing your use of illicit drugs.
I accept that you commenced using illicit drugs at a very early age, such that you should not now be held as responsible for the consequences of your addiction as you would be if you had commenced drug use as an adult. It also seems clear that your drug use was a consequence of your unsettled and disadvantaged childhood, the results of which, no doubt, linger to this day. I would encourage you to use the time while you are in custody to engage in and undertake a drug rehabilitation program. Your best prospect for rehabilitation is to engage in drug rehabilitation programs whilst you are in custody, and to continue that process by attending programs or counselling after you are released.
I did not accept the submission that I should defer sentencing to allow you to attend a residential rehabilitation program in the community because of your past history of poor compliance with community based orders. Placing you in a program, such as that offered at Oolong House, where you could leave the program at any time, was, in my opinion, too great a risk for someone with such a lengthy drug addiction and who has been essentially untreated.
In addition, sentencing considerations of punishment and deterrence are important. I accept that you have reasonable prospects for rehabilitation, particularly if you address your drug and alcohol addiction, but rehabilitation is not the only relevant sentencing consideration. Rehabilitation must be weighed with the expectation that serious criminal offending will be met with just and appropriate punishment, and also with the need to deter criminals from committing offences.
I am satisfied in the present case that nothing less than immediate terms of imprisonment are appropriate with respect to these offences.
I note that the offences which occurred on 29 January this year occurred whilst you were on conditional liberty, being on bail at that time for the offences which occurred on 3 December last year.
I take into account your pleas of guilty as demonstrating a degree of remorse for your offending. Your pleas also have significant utilitarian value. I will reduce the otherwise appropriate sentences by approximately 25 per cent to reflect your pleas of guilty.
I also take into account that the majority of these offences occurred on the one day. There is nothing to suggest that the offences which occurred on 3 December last year were the subject of any significant planning or premeditation. It appears, however, that the offences which occurred on 29 January this year were the subject of a degree of premeditation, evidenced by you arming yourself with the weapon used in the attempted aggravated robbery and with the implements for use in conducting burglaries that were located on you when you were arrested that day.
Sentence
For the offence of dishonestly driving a motor vehicle without consent on 3 December 2014, I record a conviction and you are sentenced to four months' imprisonment, commencing on 19 January 2015 and expiring on 18 May 2015.
For the offence of driving whilst disqualified on the same day, I record a conviction and you are sentenced to three months' imprisonment, commencing on 19 March this year and expiring on 18 June this year. You will also be disqualified from holding or obtaining a licence for a period of 12 months.
For the offence of attempted burglary on 29 January 2015, I record a conviction and you are sentenced to 15 months' imprisonment, commencing on 19 June 2015 and expiring on 18 September 2016.
For the offence of attempted aggravated robbery, I record a conviction and you are sentenced to two years and three months' imprisonment, commencing on 19 December 2015 and expiring on 18 March 2018.
For the offence of resisting a public official, I record a conviction and you are sentenced to two months' imprisonment, commencing on 19 December 2015 and expiring on 18 February 2016.
For the two offences of possession of an offensive weapon with intent to cause actual or threatened violence, I record a conviction on each charge, and on each you are sentenced to two months' imprisonment, commencing on 19 December 2015 and expiring on 18 February 2016.
For the offence of theft, I record a conviction and you are sentenced to three months' imprisonment, commencing on 19 December 2015 and expiring on 18 March 2016.
For the offence of burglary, I record a conviction and you are sentenced to 18 months' imprisonment, commencing on 19 September 2017 and expiring on 18 March 2019.
For the offence of possession of an article with intent to use it in a burglary, I record a conviction and you are sentenced to nine months' imprisonment, commencing on 19 September 2018 and expiring on 18 June 2019.
The aggregate sentence that I have imposed is therefore one of four years and five months' imprisonment, commencing on 19 January 2015 and expiring on 18 June 2019. I set a non-parole of two years and eight months, commencing on 19 January 2015 and expiring on 18 September 2017.
| I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 22 September 2015 |
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