R v Bennett; R v Simonds
[2020] ACTSC 221
•20 November 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Bennett; R v Simonds |
| Citation: | [2020] ACTSC 221 |
| Hearing Dates: | 11 August, 20 November 2020 |
| Decision Dates: | 12 August, 20 November 2020 |
| Before: | Murrell CJ |
| Decision: | Bennett sentenced to five years’ imprisonment with a nonparole |
| period of two years and six months. Simonds sentenced to three | |
| years and six months’ imprisonment and placed on a drug and | |
| alcohol treatment order. Reparation orders made. See [97]– | |
| [108]. | |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated burglary – Burglary – Dishonestly take motor vehicle – Dishonestly receiving stolen property – Driving a motor vehicle |
| dishonestly taken – Transfer offence – Theft – Property damage – Unlawful possession of stolen property – “Ram raid” aggravated | |
| burglary – Offences while on conditional liberty – Drug and | |
| alcohol treatment order | |
| Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 12A, 33, 80W, 80Y, 80Z, 80ZA Crimes Act 1900 (ACT) s 116 Criminal Code 2002 (ACT) ss 308, 311, 312, 313, 318, 321, 324 |
| Cases Cited: | R v BC [2019] ACTSC 233 R v Bright [2017] ACTSC 328 R v Horne [2017] ACTSC 36 R v John [2017] ACTSC 144 R v Johnstone [2016] ACTSC 112 R v McCurley [2020] ACTSC 140 |
| Parties: | The Queen (Crown) Lee Bennett (Offender) |
| Dean Simonds (Offender) | |
| Representation: | Counsel |
| M Howe (Crown) S McLaughlin (Offender Bennett) J Moffett (Offender Simonds) | |
| Solicitors | |
| ACT Director of Public Prosecutions (Crown) | |
| Legal Aid ACT (Offender Bennett) Aboriginal Legal Service (NSW/ACT) (Offender Simonds) | |
| File Numbers: | SCC 308, 309, 311, 312 of 2019 |
| SCC 35 of 2020 | |
| MURRELL CJ | |
| Introduction |
1. The co-offenders Lee Bennett and Dean Simonds are to be sentenced for the following offences committed on 29 July 2019.
(a) Two counts of aggravated burglary, contrary to s 312 of the Criminal Code 2002 (ACT) (Criminal Code). Each offence carries a maximum penalty of $320,000, 20 years’ imprisonment, or both (Counts 7 and 9). (b) One count of theft, contrary to s 308 of the Criminal Code. This offence carries a maximum penalty of $160,000, 10 years’ imprisonment, or both (Count 8). (c) Three counts of minor theft, contrary to s 321 of the Criminal Code. Each offence carries a maximum penalty of $8,000, six months’ imprisonment, or both
(transfer charges).
(d) Three counts of property damage, contrary to s 116 of the Crimes Act 1900 (ACT) (Crimes Act). Each offence carries a maximum penalty of $8,000, two years’ imprisonment, or both (transfer charges). 2. In addition, the offender Bennett is to be sentenced for the following offences.
(a) One count of burglary, contrary to s 311 of the Criminal Code. This offence carries a maximum penalty of $224,000, 14 years’ imprisonment, or both
(Count 2).
(b) One count of theft, contrary to s 308 of the Criminal Code. The offence carries a maximum penalty of $160,000, 10 years’ imprisonment, or both (Count 3). (c) One count of dishonestly take a motor vehicle without consent, contrary to s 318(1) of the Criminal Code. This offence carries a maximum penalty of $80,000, five years’ imprisonment, or both (Count 4). (d) One count of unlawful possession of stolen property, contrary to s 324 of the Criminal Code. This offence carries a maximum penalty of $80,000, two years imprisonment, or both (transfer charge). 3. The offender Simonds is to be sentenced for the following offences.
(a) One count of dishonestly receiving stolen property, contrary to s 313 of the Criminal Code. The offence carries a maximum penalty of $160,000, 10 years’
imprisonment, or both (Count 5).
(b) One count of driving a motor vehicle that was dishonestly taken, contrary to s 318(2) of the Criminal Code. This offence carries a maximum penalty of $80,000, five years’ imprisonment, or both (Count 10).
(c) One count of minor theft, contrary to s 321 of the Criminal Code. This offence carries a maximum penalty of $8000, six months’ imprisonment, or both
(transfer charge).
4. Further, the offender Bennett is to be dealt with for breach of the good behaviour orders associated with three suspended sentences imposed by the Magistrates Court.
5. On 8 May 2020, following criminal case conferencing, the offenders entered pleas of guilty to the indictable offences and indicated pleas of guilty for the transfer charges. The pleas were entered prior to the matter being listed for trial, and without the need for pre-trial applications to be considered and determined. The Crown case was strong, but the pleas were entered relatively early and have significant utilitarian value. The appropriate discount is in the range of 15 to 20 per cent (closer to 20 per cent).
6. The offenders have been in custody only in relation to these matters since 29 July 2019.
Facts
ACT Government depot
7. At 11 AM on Sunday, 28 July 2019, the Kambah Depot of the ACT Government was secured by Wilson Security.
8. At approximately 1:10 AM on Monday, 29 July 2019, Mr Bennett entered the depot
(Count 2—burglary). He entered the vehicle compound and then proceeded to the
administration building.
9. Mr Bennett stole the following items from the depot (Count 3—theft):
(a) entry swipe cards; (b) five iPads taken from an office in the administration building; (c) an Apple iPhone; (d) several bundles of keys and a CCTV hard drive taken from an office in the administration building; (e) an LG Smart 86-inch television and two HP computer hard drives from the kitchen area in the administration building; (f) a stick vacuum from the ladies’ bathroom in the administration building; (g) a backpack containing firefighting documentation and clothes; and (h) a Digitech handheld two-way radio system. 10. Mr Bennett caused significant property damage when attempting to break into offices and vehicles. Inside the administration building, Mr Bennett caused further damage, including by kicking in an office door and forcing open a metal cabinet. He moved and scattered items about.
11. At 2:57 AM, Mr Bennett took a Ford Ranger vehicle from the premises and drove to Mr
Simonds’ residence in Philip (Count 4—dishonestly take motor vehicle).
Unfortunately for the offenders, the Ford Ranger carried a GPS tracker, which later
enabled police to reconstruct the offenders’ movements.
12. Mr Bennett was at the residence for a short period. He unloaded property stolen from the depot. Mr Simonds received a Caltex fuel card, a black backpack and its contents, a Digitech handheld radio, and several ACT Government cards, including swipe passes
(Count 5—receiving stolen property).
Harvey Norman Fyshwick
13. At approximately 3:39 AM, the offenders drove to the Harvey Norman store in Fyshwick in the Ford Ranger.
14. After circling around the store, one of the offenders drove the vehicle directly into the side wall of the store, causing seven metres of the wall to collapse inwards into the store. It also caused broken glass panels, bent metal frames, and damage to the internal store walls, suspended ceiling, concrete curbs in the car park, and the paving on the pedestrian walkway. The damage cost over $33,000 to repair and the business hired extra security to protect the building until the repairs were completed.
15. Having penetrated the wall of the store, the offenders entered the building (Count 7—
aggravated burglary) and stole numerous electrical items, including computers,
laptops, keyboards, monitors and headsets (Count 8—theft). The total value of the
items was about $14,000.
16. The offenders then drove to Lyons.
Apartment complex in Lyons
17. At about 4:47 AM, the offenders drove the vehicle to an apartment complex in Lyons, where they entered the underground car park by using a screwdriver to prop open a
pedestrian door (Count 9—aggravated burglary).
18. While in the car park, one or both offenders damaged several motor vehicles and stole
several items. Relevant to the transfer charges before the Court (transfer charges—
three counts of damage property and three counts of theft):
(a) The back left window of a black Honda Civic was smashed. The offenders stole an ANZ debit card, receipts, CDs and CD cases, a charger, headphones, an AUX cable, a food delivery bag, a nappy bag and several items of clothing. (b) The back left window of a blue Mazda 3 was smashed. The offenders stole a phone charging dock, an FM transmitter, the vehicle logbook, and several items from the glove box. (c) The locking mechanism of the boot of a silver Mitsubishi Mirage was damaged, the glove box opened, and the parcel shelf dislodged. A pair of red and black sunglasses were stolen from the vehicle. 19. After about 30 minutes, the offenders left the car park with several bags.
20. During the early hours of 29 July 2020, Mr Bennett sent text messages attempting to
sell the property stolen from Harvey Norman. In a conversation with “Peter Josef”, Mr
Bennett said:
Bruv ya missed out I went and got Harvey’s last night g got like six lappys gaming screen
virtual reality gaming projector screen things fucking the new ipod touch,, we got a decent
chunk probably sell and get about 3k each
The lappys bro hp spectre the latest the big ones sell for 3800…
iPads I think I have 6 and an iphone … And iPad pro smart keypads
21. Mr Bennett took photos of some of the stolen items and posted them for sale on Gumtree.
Petrol drive-off
22. At about 7 AM, Mr Simonds drove the Ford Ranger vehicle into a Caltex service station
at Brierly St, Weston (Count 10—driving motor vehicle dishonestly taken). He filled
the vehicle with diesel worth $118.96 and drove away without paying (transfer
charge—minor theft).
23. The incident was captured on CCTV footage.
Arrest
At approximately 10:39 AM, police went to the last location logged by the Ford Ranger’s
GPS tracker. They located the vehicle with a blue tarpaulin pulled over part of it.
25. A short time later, Mr Simonds approached the Ford Ranger. When police approached him, he ran to the vehicle, entered it, and inserted a key into the ignition. He then exited the vehicle, ran away, and had to be forcefully detained.
At around 8:50 PM, police went to Mr Bennett’s residence, where they located him
hiding under a mattress. After declining to provide a statement, Mr Bennett said
(among other things):I shouldn’t have gone with [Mr Simonds]. He came in the car and wanted somewhere else
to store the TV. I was arguing with [my partner] and she was telling me … not to go with him. I went because I wanted money to provide for my family. I didn’t think we’d do that much. … I always plead guilty at the first opportunity when I’ve done something.
27. Mr Bennett was arrested and taken to ACT Watchhouse. When he was processed,
police found a stolen Medicare card in in Mr Bennett’s wallet. The wallet containing the
Medicare card had been stolen during a home burglary on 29 July 2019 (transfer
charge—unlawful possession of stolen property).
28. Search warrants were executed at Mr Bennett’s residence in Lyons, Mr Simonds’ residence in Philip, and Mr Simonds’ partner’s residence in Rivett, and many of the
stolen items were recovered.
29. Mr Bennett told the author of the pre-sentence report that he was under the influence of methylamphetamine at the time of the offences. Following a verbal fight with his partner, he went for a walk and, by chance, bumped into the co-offender whom he knew. They had a discussion and decided to commit the offences.
30. It was submitted that Mr Simonds was dependent on drugs at the time of the offences and was affected by methylamphetamine when he decided to commit the offences.
Objective seriousness
Count 2—burglary at ACT Government depot (Bennett)
31. The offence is of moderate objective seriousness. It was committed at government premises (analogous to commercial premises) at night. There was no risk of encountering an occupant. It was relatively unsophisticated.
Count 3—theft at ACT Government depot (Bennett)
32. The property that was taken was of significant value and the taking of the property was associated with property damage. It was relatively unsophisticated.
Count 4—dishonestly take Ford Ranger vehicle (Bennett)
33. Presumably, the vehicle was taken in order to convey the property that had been stolen and/or commit further offences. This means that the offence was of some seriousness. On the other hand, the offence was unsophisticated.
Count 5—receive stolen property (Simonds)
34. Only a small amount of property was received and the receipt seems to have been a spontaneous response to an offer by Mr Bennett. The offence is of relatively low objective seriousness.
Count 7—aggravated burglary at Harvey Norman (both offenders)
35. This offence was of significant objective seriousness. There was some degree of planning; the co-offenders drove together to the scene in a stolen vehicle and drove
around the premises before utilising the vehicle to commit a “ram raid”. The means of
forced entry occasioned considerable damage ($33,000 worth), in addition to which the
occupant was obliged to employ security services during repairs. In “ram raid” burglary
offences, if not charged separately, the fact that considerable damage to property was
caused is a significant aggravating feature: R v McCurley [2020] ACTSC 140 at [18].36. On the other hand, the premises were commercial premises and the offence was committed at night when the premises were unoccupied. This renders the aggravating
feature of “in company” of less significance because no one was encountered and
intimidated by the presence of more than one offender. Further, the offence was relatively unsophisticated; it was inevitable that such an incident would be captured on CCTV.
Count 8—theft at Harvey Norman (both offenders)
37. The stolen property was of substantial commercial value (about $14,000) but no sentimental or other special value. The theft was not targeted in the sense that the offenders simply seized whatever was to hand and escaped quickly.
Count 9—aggravated burglary at car park (both offenders)
38. This was another relatively unsophisticated offence committed at a non-residential part of premises at a time when no one was likely to be present. Consequently, the
aggravating feature of “in company” had no practical impact on anyone.
Three transfer charges—minor theft at car park (each offender)
39. Individually and in combination, little property was taken. The offences were of relatively low objective seriousness.
Three transfer charges—property damage (each offender)
40. Individually and in combination, the property damage was not great. The offences were of relatively low objective seriousness.
Count 10—drive vehicle dishonestly taken (Simonds)
41. There is no evidence that the vehicle was driven for any significant distance. The vehicle was driven for a criminal purpose, the theft of petrol. However, the offence is a relatively low objective seriousness.
Transfer charge—minor theft of petrol (Simonds)
42. The value of the petrol that was taken was low. Inevitably, it was captured on CCTV. The offence is of low objective seriousness.
Transfer charge—unlawful possession of stolen property (Bennett)
43. The offence involved the possession of one card that had been stolen. The offence is of low objective seriousness.
44. In relation to Mr Bennett, it is an aggravating feature that he was on conditional liberty at the time that all offences were committed. However, the suspended sentences and associated good behaviour orders did not relate to offences of dishonesty, but offences of a different type. Further, the breach offences occurred well into the good behaviour period.
Facts relating to suspended sentence
On 24 November 2017, Mr Bennett went to his partner’s residence although she had
told him that she no longer wanted a relationship and that he should stay away. He assaulted his partner and then left. 15 minutes later, he returned and kicked in the front door and the rear door causing significant damage (offence of property damage), and then entered and assaulted his partner by striking her with a closed fist to her face (assault occasioning actual bodily harm) and then kicking her and threatening her (common assault).
46. In November 2018, he was sentenced to nine months’ imprisonment for assault
occasioning actual bodily harm, suspended after serving three months on entering into a 12-month good behaviour order. For common assault, he was sentenced to six
months’ imprisonment, suspended immediately on entry into a 12-month good
behaviour order. For the offence of damaging property, he was sentenced to three
months’ imprisonment, suspended immediately on entry into a 12-month good
behaviour order. The sentencing magistrate indicated an intention that the sentences
run concurrently.47. The offences of 29 July 2019 constituted a breach of the good behaviour orders. I will resentence the offender.
Subjective features
Mr Bennett
48. Mr Bennett was 38 years old at the time of the offences. He is now 39 years old.
49. Mr Bennett has a lengthy criminal history for offences of dishonesty committed in NSW and the ACT including offences of burglary, theft, and destroy/damage property. In NSW in 2007, he was sentenced for numerous offences of burglary and aggravated
burglary, receiving a sentence of seven years and six months’ imprisonment with a
non-parole period concluding in May 2012. In November 2013 in the ACT, he was sentenced for a raft of dishonesty and driving offences to imprisonment of four years and six months from May 2013 to November 2017, with a nonparole period ending in May 2016.
50. As noted above, at the time of the offences, Mr Bennett was subject to three sentences that had been suspended on 12-month good behaviour orders.
51. As the pre-sentence report states, the offender has served much of his adult life inside correctional facilities.
52. Mr Bennett was raised in Sydney by his mother and stepfather, whom he regards as his father. He has no ongoing contact with his biological father. He was one of three
children. He characterised his childhood as “happy and uneventful”, but the author of
the pre-sentence report opined that this was somewhat inconsistent with his extensive history of offending as a young person. He maintains some contact with his sisters and
parents, but his parents are “very disappointed and frustrated” by his return to custody.
53. Mr Bennett left school in Year 8 due to ongoing behavioural and concentration problems. He then worked in a variety of labouring and construction roles until 2005. From 2005, he was unemployed due to his frequent incarceration and drug use. However, in 2018, he began working as offsider to a plasterer and he would like to return to work in that field. His former employer says that he was a reliable and hard worker and the employer is prepared to offer him work upon release.
In 2005, the offender’s former partner died in his arms of a heroin overdose.
55. In 2006, a son died in a drowning accident.
56. These tragic events had a significant impact on the offender, who attempted to deal with his grief by increasing substance abuse, with negative employment ramifications and increased involvement in the criminal justice system.
57. Mr Bennett moved to the ACT in 2013 and entered a relationship with his current partner approximately three years ago. The couple has two young children, although the offender is the biological father of only one child. Both children are in foster care.
The offender’s partner is serving a drug and alcohol treatment order and her
rehabilitation is progressing well. She is seeking restoration of her children. The
relationship continues but the offender’s partner will welcome the return of Mr Bennett
to the family home only if he addresses his drug problems.
58. Mr Bennett has a 19-year-old son from a previous relationship who resides in Western Australia. Mr Bennett has resumed contact with his son, who has children of his own. Mr Bennett wishes to maintain the relationship.
59. Mr Bennett began to use cannabis when he was 13 years old. In his mid-teens he began to use alcohol and was a problematic drinker by 18 years of age. However, he rarely drinks now. From alcohol, he progressed to using heroin and cocaine. Since his former partner died of a heroin overdose in 2005, he has been abstinent from heroin. However, he began to use amphetamines in 2012 and, since then, he has been abstinent for only short periods while in custody and when his current partner was pregnant. Intermittently, he has received pharmacotherapy treatment and he is being treated while in custody.
60. Mr Bennett provided a letter stating that, at the time of the offences, he had been doing well with drug rehabilitation. This assertion is supported by the fact that he was in employment at the time and by a letter from Mr Arnold, a chaplain who has known Mr Bennett for 10 years through regularly visits with him in custody in NSW and the ACT.
61. Mr Bennett has experienced periods of depression, particularly following the death of his son and former partner. He has experienced drug-induced psychosis and has been prescribed with antipsychotic medication, which he has been taking while in custody. The authors of the pre-sentence report consider that Mr Bennett may have undiagnosed mental health issues, would benefit from significant psychological interventions to address past trauma, and requires a holistic assessment of his mental health.
62. The authors of the pre-sentence report stated that the offender had appropriate insight and victim empathy and would like to participate in restorative justice.
63. Since returning to the Alexander Maconachie Centre (AMC) in July 2019, Mr Bennett has not been the subject of any disciplinary action (in contrast to the position when previously incarcerated) and has undertaken numerous courses, including courses related to substance abuse and anger management. He has also completed a barista training course.
64. The authors of the pre-sentence report considered that he would benefit from intensive drug and alcohol counselling/rehabilitation.
65. In his letter to the court, Mr Bennett expressed shame and disappointment at his conduct, especially in the context that he had been doing well.
66. The authors of the pre-sentence report stated that Mr Bennett was at medium to high risk of general reoffending. They expressed concern about the possibility of him returning to the family home and disrupting the progress made by his partner.
I am moderately confident about Mr Bennett’s prospects of rehabilitation. He is now
39 years old. From November 2018 to July 2019, he lived an apparently crime-free life in the community and was engaged in good employment. The offences committed on 29 July 2019 are a substantial but one-off episode of recent criminality and Mr Bennett is appropriately remorseful about the offences and chastened by the consequences. His positive attitude is evidenced by his engagement in restorative justice, which is ongoing.
Mr Simonds
68. Mr Simonds was 37 years old at the time of the offences. He is now 38 years old. He has an Indigenous background.
69. Like Mr Bennett, Mr Simonds has a lengthy criminal history dating back several decades. In Queensland and NSW, he has a number of convictions for dishonesty. In 2008, he was sentenced for serious drug matters to what appears to be a total sentence
of three years and 10 months’ imprisonment from January 2008 to November 2011 with
a non-parole period concluding in May 2010. In 2012 in the ACT, he was sentenced for aggravated burglary and property damage to a total sentence of five years and six
months’ imprisonment with a nonparole period of three years and nine months expiring
in October 2014.
70. Mr Simonds has four children, two of whom are incarcerated.
71. He has a poor employment history but was employed in a landscaping company shortly before he was incarcerated. It is likely that employment will be available to him on his
release. The offender’s partner and her aunt described him as a fit, reliable, and hard-
working man.
72. He has been in a relationship with his current partner for approximately two years. The
couple is mutually supportive. The offender’s partner has two young children and the
offender enjoys a good relationship with them. Because of COVID-19 restrictions on
present visitations, they have been unable to visit him and they miss him.73. Mr Simonds has a history of illicit substance abuse. He commenced using cannabis daily at age 12 and was using methylamphetamine daily by age 18. He abstained from substance abuse following the completion of the Karralika Karuna Program in early 2017 until his remand in October 2017. At the time of the offences, he was dependent on illicit drugs and he was affected by methylamphetamine when the offences occurred.
74. Since his return to custody in July 2019, Mr Simonds has been the subject of four disciplinary actions. However, the last such action was in February 2020. He has completed substance abuse programs in custody. In July 2020, he entered the Solaris therapeutic community within the prison and is due to graduate from that program on 27 November 2020. Staff in the therapeutic community indicated that Mr Simmonds is highly motivated and has engaged positively and proactively. He has been an exemplary role model to fellow participants. Mr Simonds is currently employed as a roving peer mentor in custody. Mr Simonds has identified treatment and support options that he intends to pursue when he re-enters the community.
75. Mr Simonds has a history of bipolar disorder and received antipsychotic medication until he abandoned use of it because it interacted negatively with opiate replacement therapy. He says that mental health issues have impacted upon him through his life. He is now engaged with a forensic psychologist from Winnunga Nimmityjah Aboriginal Health Service who attends the AMC. Upon his release, he intends to pursue treatment with Winnunga Nimmityjah.
76. Mr Simonds told the author of the pre-sentence report that he accepted responsibility
for his offending. He stated that it was a “split-second decision” to join Mr Bennett..
77. I am satisfied that Mr Simonds has good prospects of rehabilitation. He is now 38 years old. Within the prison, he has done everything possible to address his substance abuse problem and mental health problems. His positive attitude is also demonstrated by his engagement in a restorative justice program
78. Mr Simonds sought an adjournment of the sentence proceedings to enable him to complete the Solaris therapeutic program and finalise his engagement in a restorative justice program. I refused the adjournment. If Mr Simonds does not complete the therapeutic program within the prison, it will be because he is undertaking drug treatment within the community. With or without an adjournment, he can continue his engagement with restorative justice.
79. The Crown accepted that, in the case of both offenders, the offences were consistent with stealing to fuel a drug addiction.
Comparable cases
80. The Crown provided the Court with some comparable cases.
81. In R v McCurley [2020] ACTSC 140, the offender was sentenced for a large number of
dishonesty offences. Two were “ram raid” aggravated burglaries. The offender had an
extensive criminal history. For each aggravated burglary offence, the offender received
a sentence of two years and four months’ imprisonment, reduced from three years for
the plea of guilty.
82. In R v Bright [2017] ACTSC 328 (Bright), the offender was sentenced for a large
number of dishonesty offences. One was a “ram raid” aggravated burglary, for which the offender was sentenced to 23 months’ imprisonment (reduced from 30 months’
imprisonment). Another incident was an underground car park aggravated burglary,
for which the offender was sentenced to 14 months’ imprisonment (reduced from 18
months’ imprisonment). The offender had not previously committed similar offences,
nor had he spent any substantial period in custody.
83. The offender in R v Johnstone [2016] ACTSC 112 was sentenced to two years’ imprisonment (reduced from two years and six months’ imprisonment) for a “ram raid”
aggravated burglary. He had a lengthy criminal history but was only 20 years old at
the time of the offences and showed some prospects of rehabilitation.84. In R v BC [2019] ACTSC 233, the offender was sentenced to 13 months and 15 days’ imprisonment (reduced from 18 months’ imprisonment) for an aggravated burglary in
an underground car park. In sentencing the offender, Loukas-Karlsson J considered the sentences imposed for offences of the same kind in Bright, R v John [2017] ACTSC 144, and R v Horne [2017] ACTSC 36.
85. I am aware of the limitations of statistical information, but have referred to the ACT Sentencing Database. This shows that, as at February 2019, sentences for theft were
typically six to 18 months’ imprisonment (often 12 months’ imprisonment). For burglary offences, sentences were typically between one and three years’ imprisonment (often 18 months to two years’ imprisonment) and aggravated burglary offences were typically between 18 months and three years and six months’ imprisonment (often two to three
years’ imprisonment). Commonly, where an offender is sentenced for a theft
associated with the burglary, the sentence for the theft is made concurrent with that for
the burglary.
Other sentencing considerations
86. The Court is required to take into account the factors under s 33 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), insofar as they are known and relevant. I have referred to the relevant matters above.
87. Relevant sentencing purposes include general and personal deterrence (particularly having regard to the criminal histories of the offenders), accountability, and denunciation.
88. I accept the Crown submission that, where the offences were committed jointly, there is nothing to distinguish between the culpability of the co-offenders. Both offenders have an unenviable criminal history and are of a similar age. However, because of Mr
Bennett’s commission of offences at the ACT Government depot, the totality of his
offending is objectively more serious.
89. I take into account that, during COVID-19, full-time imprisonment is especially onerous because of restricted prison visits (which significantly impact on the co-offenders because each has a partner and children), the prospect of increased lockdowns, and the increased risk of infection associated with the prison environment. I will take this consideration into account when fixing the nonparole periods.
90. On behalf of Mr Simonds, it was submitted that the Court should consider an intensive correction order. Having regard to the objective seriousness of the offences and the
offender’s criminal history, I do not consider that such an order would be appropriate.
However, as Mr Simonds has served more than 12 months in custody, I am prepared to consider a drug and alcohol treatment order.
91. In relation to the suspended sentences imposed on Mr Bennett, I consider that the sentences should be served but, because he performed well on the good behaviour order for a significant period of time and the breach offences differ from the suspended sentence offences, I will allow a significant degree of concurrency with the new sentences.
Drug and alcohol treatment order
92. On 12 August 2020, I ordered that Mr Simonds undergo eligibility and suitability assessments for a drug and alcohol treatment order. The assessments were favourable.
93. I adjourned the matter to November 2020 to enable Mr Simonds to complete the Solaris Program at the AMC. He completed the program on 13 November 2020.
94. On 12 August 2020, I indicated the following sentences in relation to Mr Simonds.
(a) Count 5: receive stolen property—one month’s imprisonment, from 29 September 2019 to 28 October 2019.
(b) Count 7: aggravated burglary at Harvey Norman—42 months’ imprisonment, reduced to 34 months’ imprisonment, from 29 December 2019 to 28 October 2022.
(c) Count 8: theft at Harvey Norman (both offenders)—15 months’ imprisonment, reduced to 12 months’ imprisonment, from 29 December 2019 to 28 December 2020.
(d)
Count 9: aggravated burglary at car park—24 months’ imprisonment, reduced to 19 months’ imprisonment, from 29 June 2021 to 28 January 2023.
(e)
Count 10: drive vehicle dishonestly taken—eight months’ imprisonment, reduced to six months’ imprisonment, from 29 October 2019 to 28 April 2020.
(f) Three counts of minor theft at car park—one month’s imprisonment from 29 July 2019 to 28 August 2019.
(g) Three counts of property damage at car park—two months’ imprisonment from 29 July 2019 to 28 September 2019.
(h) One count of minor theft of petrol—one month’s imprisonment from 29 October 2019 to 28 November 2019.
95. However, because of the unsatisfactory way in which the legislation on drug and alcohol treatment orders has been drafted, it seemed necessary to fully suspend any sentence; the legislation does not permit partial suspension. To overcome this drafting problem, the sentence for Count 8 will be backdated so that it has expired. The sentences that will be the subject of the drug and alcohol treatment order are the sentences on Counts 7 and 9.
96. In order to fully suspend the sentence, I will amend the start date of the sentence for Count 7 so that it commences on 20 November 2020 and finishes on the date previously indicated, 28 October 2022. Unfortunately, the ACT Sentencing Database will record sentences that do not reflect the practical length of time served.
Sentence
Mr Bennett
97. I convict the offender and impose the following sentences.
Counts on indictment
(a) Count 2: burglary at ACT government depot—two years’ imprisonment, reduced to 19 months’ imprisonment, from 29 November 2019 to 28 June 2021. (b) Count 3: theft at ACT government depot—15 months’ imprisonment, reduced to 12 months’ imprisonment, from 29 November 2019 to 28 November 2020. (c) Count 4: dishonestly take Ford Ranger vehicle—18 months’ imprisonment, reduced to 15 months’ imprisonment, from 29 September 2020 to 28 December 2021.
(d) Count 7: aggravated burglary at Harvey Norman—42 months’ imprisonment, reduced to 34 months’ imprisonment, from 29 November 2020 to 28 September 2023.
(e)
Count 8: theft at Harvey Norman—15 months’ imprisonment, reduced to 12 months’ imprisonment, from 29 November 2020 to 28 November 2021.
(f)
Count 9: aggravated burglary at car park—24 months’ imprisonment, reduced to 19 months’ imprisonment, from 29 December 2022 to 28 July 2024.
Transfer charges
(g) Three counts of minor theft at car park (each offenders)—one month’s imprisonment, from 29 September 2019 to 28 October 2019.
(h) Three counts of property damage at car park (each offender)—two months’ imprisonment, from 29 September 2019 to 28 November 2019.
(i) One count of unlawful possession of stolen property—one month’s
imprisonment, from 29 October 2019 to 28 November 2019.
Breach offences—resentence
(j) Assault occasioning actual bodily harm—six months’ imprisonment, from 29 July 2019 to 28 January 2020.
(k) Common assault—six months’ imprisonment, from 29 July 2019 to 28 January 2020.
(l) Damage property—three months’ imprisonment, from 29 July 2019 to 28 October 2019.
98. The total sentence is five years’ imprisonment.
99. I impose a nonparole period of two years and six months’ imprisonment, from 29 July
2019 to 28 January 2022.
Mr Simonds
100. I convict the offender and impose the following sentences.
Counts on indictment
(a) Count 5: receive stolen property—one month’s imprisonment, from 29 September 2019 to 28 October 2019.
(b) Count 7: aggravated burglary at Harvey Norman—23 months and nine days’ imprisonment, from 20 November 2020 to 28 October 2022.
(c) Count 8: theft at Harvey Norman (both offenders)—15 months’ imprisonment, reduced to 12 months’ imprisonment, from 20 November 2019 to 19 November 2020.
(d)
Count 9: aggravated burglary at car park—24 months’ imprisonment, reduced to 19 months’ imprisonment, from 29 June 2021 to 28 January 2023.
(e)
Count 10: drive vehicle dishonestly taken—eight months’ imprisonment, reduced to six months’ imprisonment, from 29 October 2019 to 28 April 2020.
Transfer charges
(f) Three counts of minor theft at car park—one month’s imprisonment from 29 July 2019 to 28 August 2019.
(g) Three counts of property damage at car park—two months’ imprisonment from 29 July 2019 to 28 September 2019.
(h) One count of minor theft of petrol—one month’s imprisonment from 29 October 2019 to 28 November 2019.
101. The total indicated sentence is three years and six months’ imprisonment, from 29 July
2019 to 28 January 2023.
Drug and alcohol treatment order
102. For the purposes of a drug and alcohol treatment order, I note that Count 7 is the primary offence and Count 9 is an associated offence. The relevant period of
imprisonment is two years, two months and nine days’ imprisonment, from 20
November 2020 to 28 January 2023.
103. Pursuant to s 12A(2) of the Sentencing Act, I impose a drug and alcohol treatment order on Counts 7 and 9. The custodial part of the sentence will be taken to have commenced today and is fully suspended from today, in accordance with s 80W of the Sentencing Act, upon the offender agreeing to enter a treatment program in accordance with that provision.
104. I impose the core conditions of a drug and alcohol treatment order as detailed in s 80Y(1) of the Sentencing Act.
105. I impose treatment program conditions as per s 80Z of the Sentencing Act. I order that the offender is to complete a treatment program as set by the judge presiding over the Drug and Alcohol Sentencing List, and as amended from time to time.
106. At the completion of the treatment and supervision part of the order, pursuant to s 80ZA of the Senteicng Act, the offender is to enter into a good behaviour order for the remainder of the custodial period.
Reparation
107. A reparation order is sought in the sum of $244 in relation to one of the cars that was damaged during the underground car park burglary.
108. In relation to each offender, I make a reparation order in the sum of $122 and allow six months to pay.
I certify that the preceding one hundred and eight [108]
numbered paragraphs are a true copy of the Reasons
for Sentence of her Honour Chief Justice Murrell.
Associate:
Date:
Note
Republished to include orders and reasons given on 20 November 2020.
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