R v Bright

[2017] ACTSC 328

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Bright

Citation:

[2017] ACTSC 328

Hearing Date:

26 October 2017

DecisionDate:

27 October 2017

Before:

Mossop J

Decision:

See [39]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – pleas of guilty – breach of Good Behaviour Orders – resentence – aggravated burglary – drive motor vehicle without consent – joint commission theft – take motor vehicle without authority – unlawful possession of stolen property – drive while disqualified – drive while licence suspended by law – specific deterrence – general deterrence – rehabilitation a significant factor in sentencing – totality of sentence

Legislation Cited:

Crimes (Sentence Administration) Act 2005 (ACT), ss 108, 110

Criminal Code 2002 (ACT), ss 308, 312, 318(1), 318(2), 324

Cases Cited:

R v Booth [2017] ACTSC 191

R v Forrest (No 2) [2017] ACTSC 83

Parties:

The Queen (Crown)

Warren Douglas Bright (Offender)

Representation:

Counsel

J De Bruin (Crown)

H Russell (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Aboriginal Legal Service (NSW/ACT) (Offender)

File Numbers:

SCC 191 of 2017

SCC 269 of 2017

SCC 270 of 2017

MOSSOP J:

Introduction

1. The offender, Warren Douglas Bright, has pleaded guilty to offences arising out of the burglary of a supermarket, on 21 May 2017, a burglary of a secure carpark on 23 May 2017 and the possession of stolen goods on 26 May 2017.

1. The offences involved contraventions of the Criminal Code 2002 (ACT), their maximum penalties are set out in the table below:

Date	Count	Charge No.	Charge	Offence Provision	Maximum Penalty
21 May 2017	1	CC2017/7255	Aggravated burglary	Criminal Code s 312	20 years’ imprisonment, a fine of $300,000 or both
2	CC2017/7256	Ride motor vehicle without consent	Criminal Code s 318(2)	Five years’ imprisonment, a fine of $75,000 or both
3	CC2017/7806	Theft	Criminal Code s 308	10 years’ imprisonment, a fine of $150,000 or both
23 May 2017	4	CC2017/5911	Aggravated burglary	Criminal Code s 312	20 years’ imprisonment, a fine of $300,000 or both
5	CC2017/5910	Take motor vehicle without consent	Criminal Code s 318(1)	Five years’ imprisonment, a fine of $75,000 or both
6	CC2017/10758	Ride motor vehicle without consent	Criminal Code s 318(2)	Five years’ imprisonment, a fine of $75,000 or both
26 May 2017	7	CC2017/7486	Unlawful possession of stolen property	Criminal Code s 324	Six months’ imprisonment, a fine of $7500 or both

1. The offender was at conditional liberty at the time of the offending conduct stemming from a number of Good Behaviour Orders (‘GBO’).  All but the first of these GBOs were entered on 29 June 2015.  The first GBO, to which I refer below, was entered on 7 November 2016 as part of a suspended sentence in relation to an offence committed on 4 September 2016.  The commission of that offence by the offender was a breach of the earlier GBOs.  That then resulted in either a resentence on the earlier sentences imposed on 29 June 2015 or a decision to take no further action in relation to the breach of those GBOs.  Those outcomes are noted in the table below:

Charge No.	Charge	Conviction
CC2016/9148	Drive disqualified on 4 September 2016	Convicted and sentenced to three months’ imprisonment commencing on 6 November 2016. The sentence was suspended and the offender released on 24 December 2016 upon the offender entering into a GBO for a period of 12 months.
CC2014/11015	Drive disqualified on 10 November 2014	Convicted and sentenced to three months’ imprisonment, suspended and released immediately upon entering a GBO for 24 months.  GBO cancelled because of commission of CC2016/9148. Resentenced to three months’ imprisonment commencing on 7 November 2016. The sentence was suspended on 24 December 2016 upon the offender into a GBO for a period of 24 months.
CC2014/10226	Drive while licence suspended by law on 1 October 2014	Convicted and sentenced to two months’ imprisonment, suspended and released immediately upon entering a GBO for 24 months.  GBO cancelled because of commission of CC2016/9148. Resentenced to two months’ imprisonment commencing on 7 November 2016. The sentence was suspended on 24 December 2016 upon the offender into a GBO for a period of 12 months.
CC2014/10227	Use unregistered vehicle on 1 October 2014	Convicted and released upon entering a GBO on 29 June 2015 for a period of 24 months. Breached by committing CC2016/9148, no further action taken on 7 November 2016.
CC2014/10228	Use uninsured motor vehicle on 1 October 2014	Convicted and released upon entering a GBO on 29 June 2015 for a period of 24 months. Breached by committing CC2016/9148, no further action taken on 7 November 2016.
CC2014/10229	Numberplate/registration issued for another vehicle on 1 October 2014	Convicted and released upon entering a GBO on 29 June 2015 for a period of 24 months. Breached by committing CC2016/9148, no further action taken on 7 November 2016.
CC2014/10230	Numberplate/registration issued for another vehicle on 1 October 2014	Convicted and released upon entering a GBO on 29 June 2015 for a period of 24 months. Breached by committing CC2016/9148, no further action taken on 7 November 2016.
CC2014/10232	Possession of stolen property on 1 October 2014	Convicted and released upon entering a GBO on 29 June 2015 for a period of 24 months. Breached by committing CC2016/9148, no further action taken on 7 November 2016.
CC2014/10233	Possession of stolen property on 1 October 2014	Convicted and released upon entering a GBO on 29 June 2015 for a period of 24 months. Breached by committing CC2016/9148, no further action taken on 7 November 2016.
CC2014/2106	Drive while licence suspended by law on 9 December 2013	Convicted and sentenced to two months’ imprisonment, suspended and released immediately upon entering a GBO for 24 months.  GBO cancelled because of commission of CC2016/9148. Resentenced to two months’ imprisonment commencing on 7 November 2016. The sentence was suspended on 24 December 2016 upon the offender into a GBO for a period of 12 months.
CC2014/118	Use of uninsured vehicle on 9 December 2013	Convicted and released upon entering a GBO on 29 June 2015 for a period of 24 months. Breached by committing CC2016/9148, no further action taken on 7 November 2016.
CC2014/119	Use unregistered/ suspended vehicle (breach) on 9 December 2013	Convicted and released upon entering a GBO on 29 June 2015 for a period of 24 months. Breached by committing CC2016/9148, no further action taken on 7 November 2016.
CC2014/121	Numberplate/registration not properly issued / issued for another vehicle on 9 December 2013	Convicted and released upon entering a GBO on 29 June 2015 for a period of 24 months. Breached by committing CC2016/9148, no further action taken on 7 November 2016.
CC2013/11443	Drive while licence suspended by a court on 4 December 2013	Convicted and released upon entering a GBO on 29 June 2015 for a period of 24 months. Breached by committing CC2016/9148, no further action taken on 7 November 2016.
CC2014/1195	Drive with prescribed drug in oral fluid	Convicted and released upon entering a GBO on 29 June 2015 for a period of 24 months. Breached by committing CC2016/9148, no further action taken on 7 November 2016.
CC2014/1196	Drive an unsafely maintained vehicle	Convicted and released upon entering a GBO on 29 June 2015 for a period of 24 months. Breached by committing CC2016/9148, no further action taken on 7 November 2016.
CC2014/11281	Use unregistered/ suspended vehicle	Convicted and released upon entering a GBO on 29 June 2015 for a period of 24 months. Breached by committing CC2016/9148, no further action taken on 7 November 2016.
CC2014/11282	Use uninsured vehicle	Convicted and released upon entering a GBO on 29 June 2015 for a period of 24 months. Breached by committing CC2016/9148, no further action taken on 7 November 2016.

1. There is no explanation in the evidence before me as to why the sentence of imprisonment that was imposed as part of the suspended sentence on charge CC2016/9148 started on 6 November 2016 whereas the other sentences of imprisonment imposed on 7 November 2016 commenced from 7 November 2016.

1. Because of the offending conduct in May 2017 the offender is in breach of each of the GBOs referred to above. Where those GBOs are a condition of the suspension of a sentence of imprisonment, s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) applies. Where the GBOs are not imposed as part of a suspended sentence then s 108 applies.

21 May 2017 offences

1. At about 3:45am on 21 May 2017 the offender and two unknown males used a Toyota Hilux to ram the rear roller door of the SPAR Rivett supermarket.  After gaining entry into the supermarket the offender and the two males stole tobacco and alcohol products to the value of $12,876.96 belonging to the company which ran the supermarket, T2M Group Pty Ltd.  They were wearing masks and gloves.  Video of the burglars was captured on CCTV.  The video shows considerable damage being done inside the supermarket to get hurried access to cigarettes and alcohol.  

1. The manager of the supermarket later attended the premises and found that the lock securing the cage blocking access to the roller door had been cut off, that there was considerable damage to the pallets of alcohol positioned behind the damaged roller door, that there was damage to the cool-room door and panels adjacent to the roller door, that security panels to the cigarette and tobacco drawers within the supermarket had been ripped away and cigarettes and loose tobacco littered the floor.  The owner of the vehicle that was used to ram the supermarket did not give any permission to the offender or anybody else to use the vehicle on that morning.

1. Police saw the vehicle at 4:45am.  After some attempts to avoid police the vehicle ultimately collided with a fence line near Point Hutt crossing.  Three males exited the vehicle.  One male was not apprehended or identified.  The other two were not charged at that stage.

1. The supermarket incurred the following expenses:

(a)theft of items $12,876.96 of which $8265.15 was subsequently recovered by police and returned to the supermarket leaving a balance of $4611.81;

(b)damage to fixtures and fittings $15,881.80; and

(c)damage to stock $12,324.55.

23 May 2017 offences

1. On 23 May 2017 the offender and an unknown co-offender entered the secure car park at a multiunit complex in Leichardt Street Kingston, in the Australian Capital Territory, with the intent to commit theft.  Access to the car park had been obtained by following another vehicle when it opened the security gate.  This gives rise to a charge of aggravated burglary.  The aggravation being that it was burglary in company.  Shortly thereafter the offender and his co-offender stole a motorbike belonging to Peter Meaking.  The motorcycle was lifted onto a trailer that was then towed by the vehicle used by the offender.  This gives rise to the charge of taking a motor vehicle without consent.  The offender and co-offender were unable to exit the car park in the ordinary manner and, after making attempts to open the door by cutting the cables that held it in place with a pair of bolt cutters, used their vehicle to ram the security gate to get out.  At the time of committing the offences the offender and co‑offender were driving a white Lexus which was registered to a person who had not given permission for them to use the vehicle.  It had been stolen from a residence in Garran.

1. Police subsequently saw the Lexus in a number of locations.  The vehicle entered New South Wales (‘NSW’).  It was pursued by NSW police.  It stopped at an address in Queanbeyan where the offender and co-offender exited the vehicle.  NSW police apprehended the offender after a short pursuit but were unable to apprehend the co‑offender.  On 26 May 2017 police executed a search warrant at the offender’s address and identified some 33 items as stolen property.

1. The offender was subsequently interviewed by police.  He made admissions in relation to the events subject of these charges.

Assessment of the objective seriousness

1. So far as the offences committed on 21 May 2017 are concerned my assessment of the objective seriousness is as follows:

(a)The aggravated burglary is in the mid-to-upper range of objective seriousness.  That is because of the planned and deliberate nature of the burglary and the fact that significant damage was required to be caused in order to obtain access to the premises.

(b)The ride motor vehicle without consent charge is in the mid range of objective seriousness.  It is an aggravating feature that the vehicle was used for the purposes of further offending: R v Booth [2017] ACTSC 191 at [11].

(c)The theft is in the mid-to-upper range of objective seriousness because of the deliberately planned nature of the offending, the value of items stolen and the damage to other items caused during the course of the theft.

1. So far as the offences on 23 May 2017 are concerned my assessment of the objective seriousness of these offences is as follows:

(a)The aggravated burglary is at the low-to-mid range of objective seriousness.  It did not involve any breaking-in in order to enter the premises.  The premises, while associated with residences, did not form part of anyone’s home.  They were however areas vulnerable to criminal acts: R v Forrest (No 2) [2017] ACTSC 83 at [77]–[78].

(b)The ride motor vehicle without consent charge is in the mid range of seriousness. It is an aggravating feature that the vehicle was used for the purposes of further offending.

(c)The theft of the motorcycle is also in the low-to-mid range of objective seriousness.  That is because of the value of the item stolen.

Subjective circumstances

1. The offender is 37 years old.  He was born and raised in Narrandera, NSW.  His father died when he was an infant.  His mother and stepfather raised him.  He is one of four children.  He enjoyed positive relationships with his siblings.  His elder brother died due to a drug overdose nine years ago.  That death had a significant effect on the offender.

1. He has been in a relationship for seven years and has one child.  His partner has been recently incarcerated.  The child has been removed from their care.  The offender is motivated to regain contact with his child.  The offender also has another 11-year-old child who resides in the ACT with the child’s mother and he has had no contact with this child for some years even though he raised the child in the child’s early years. 

1. The offender left school during Year 11.  There is conflicting evidence in the reports as to his employment history.  I accept the statement attributed to his partner that he last held formal employment in 2012.  The CADAS Report records his statement that after leaving school he did roadworks for five years before moving to Tweed Heads where he held one job which involved work expanding bridges for nearly 10 years.  He appears to be motivated to obtain employment once released from custody and has participated actively in relevant programs whilst in custody.

1. The offender reported that his friends were mostly antisocial and his partner acknowledged they influenced him to engage in criminal behaviours.  The offender recognised the need to make changes to his current group of associates.

1. The offender has a previous history of alcohol abuse during his adolescence.  Under the influence of his partner he has reduced his alcohol consumption to approximately nine standard drinks per month during the two months prior to his incarceration.  He has used cannabis and methamphetamine.  In the 14 months prior to his incarceration he was using methamphetamine three to five times a day, using it to wake up and then using cannabis to get three or four hours sleep at night.  He engaged in criminal activities to finance his use, swapping stolen items for illicit substances.

1. A drug-screening tool assessed his drug-related risk as severe with further assessments required.

1. The offender reported ceasing his mental health medication three months prior to his current period of incarceration.  The report does not disclose what mental health condition he suffered or what medication he was prescribed.  The CADAS Report discloses that he has been treated for anxiety and depression in custody.

1. He has had suicidal ideation during his current period of incarceration and has obtained counselling and mental health treatment.  The details of the mental health treatment are not disclosed. 

1. Mr Bright agreed with the statement of facts and did not attempt to minimise his action during the offences.  He expressed empathy for the victims.

1. He has commenced participation in an Indigenous-specific in-custody cognitive change program.  He has completed an anger-management program and an alcohol and other drugs program.  He has participated well in each of these programs.

1. He is assessed as having a high risk of general reoffending because of his illicit substance use and mental health, limited employment history and the absence of pro‑social peers.

1. The CADAS Report gave some more detail about his alcohol, cannabis and methamphetamine use.  It is consistent with information provided in the Pre-Sentence Report.  The offender acknowledged to the author of the CADAS Report that the real test would be whether he could sustain his progress in relation to drug use when released into the community.

Restorative Justice

1. A report dated 25 October 2017 indicates that the ride/drive motor vehicle without consent charge was not suitable for restorative justice but the charges relating to the aggravated burglary and theft committed on 21 May 2017 were suitable.  A face‑to‑face meeting was arranged in which the offender and victims participated successfully.

1. In relation to the offences committed on 23 May 2017 the restorative justice assessment process has not yet been completed.

Criminal history

1. The offender’s criminal history in NSW discloses offending conduct going back to 1997.  As an adult, the offender has a drink-driving conviction from 1998, a threaten and assault conviction from 1999 and a damaging-property and drink‑driving conviction from 2000.  He has two offensive-behaviour convictions from 2007 and a drink-driving conviction for which he was given a suspended sentence of imprisonment.

1. In the ACT he has two convictions for using a carriage service to menace, harass or offend in relation to which there were breach proceedings arising out of a failure to comply with the terms of his GBOs.  There were then the 19 offences for which in 2015 he was convicted and given suspended sentences or GBOs.  Eighteen of these are the matters set out above in relation to which it will be necessary to address his breach of the GBOs.  Finally he has a conviction in 2017 for possessing a small amount of cannabis.

1. Apart from the period spent on remand in relation to the current offences and the short period spent in custody at the end of 2016 he has not spent time in prison.  The offences for which he is sentenced today are the first of their type which he has committed, consistent with the offending conduct being a product of falling into illicit drug use.

Sentence

1. Having regard to the seriousness of the offending conduct and the past history of the offender I consider that no sentence other than a custodial one is appropriate in relation to each of the offences.  Needless to say both general and specific deterrence are significant factors as well as the need to adequately punish the offender for the offending conduct.  Given that his offending is driven by drug use, rehabilitation is a significant factor in determining the appropriate sentence

1. His early guilty plea warrants a reduction of 25 per cent in the sentences of imprisonment that I would otherwise have imposed.

1. It is relevant to take into account that the offending conduct was driven by drug use, in particular the use of methamphetamine and the need to obtain a supply of methamphetamine and cannabis.  The evidence about the offender’s present state of mind is such that it is clear that he recognises the problems caused by his drug use and offending conduct and is motivated to address that.  He has participated appropriately in restorative justice and has done his best to rehabilitate himself whilst in custody by accessing and completing available courses and programs.  The interests of the community would clearly be served by his long-term rehabilitation.  The real question is whether that good intention can be successful upon his release into the community in circumstances where he has a limited recent employment history, antisocial friends and a history of abuse of drugs.  That is something which will only be able to be determined in the longer term upon his release.

1. I have made the sentences largely concurrent within each of the series of incidents.  This is largely as a result of questions of totality.  The sentences will be as follows:

Charge No.	Charge	Sentence
CC2017/7255	Aggravated burglary	23 months reduced from 30 months on account of the plea of guilty.
CC2017/7256	Ride motor vehicle without consent	Seven months (reduced from nine months) concurrent with CC2017/7255 except as to two months
CC2017/7806	Theft	18 months (reduced from 24 months) concurrent with CC2017/7255 and CC2017/7256 except as to two months
CC2017/5911	Aggravated burglary	14 months reduced from 18 months
CC2017/5910	Take motor vehicle without consent	Seven months (reduced from nine months) concurrent with CC2017/5911 except as to two months
CC2017/10758	Ride motor vehicle without consent	Seven months (reduced from nine months) concurrent with CC2017/5911 except as to two months
CC2017/7486	Unlawful possession of stolen property	Two months (reduced from three months)

1. In relation to the GBOs associated with a suspended sentence I consider it appropriate to impose the sentence that had been suspended.  So far as the balance of the GBOs which have been breached, having regard to the sentence that I will impose today and the fact that I am imposing the suspended part of the suspended sentences I consider it appropriate to take no further action on those breaches.

1. As each of the suspended sentences were effectively concurrent I will maintain that concurrency.  The sentences imposed will therefore be as follows:

Charge	Total sentence	Time remaining
CC2016/9148	Three months’ imprisonment	43 days
CC2014/11015	Three months’ imprisonment	44 days
CC2014/10226	Two months’ imprisonment	13 days
CC2014/2106	Two months’ imprisonment	13 days

1. This gives a total effective sentence of just over four years.  I will set a non-parole period of two years and one month, which is shorter than usual, recognising the steps that the offender is taking towards rehabilitation and the benefit of a longer period subject to supervision on parole.

Orders

1. The orders that I make are:

1. On charge CC2017/7255 (aggravated burglary – intent to steal) the offender is convicted and sentenced to 23 months’ imprisonment commencing on 26 May 2017 and ending on 25 April 2019.

2. On charge CC2017/7256 (ride/drive motor vehicle without consent) the offender is convicted and sentenced to seven months’ imprisonment commencing on 26 November 2018 and ending on 25 June 2019.

3. On charge CC2017/7806 (joint commission theft) the offender is convicted and sentenced to 18 months’ imprisonment commencing on 26 February 2018 and ending on 25 August 2019.

4. On charge CC2017/5911 (aggravated burglary – intent to steal) the offender is convicted and sentenced to 14 months’ imprisonment commencing on 26 August 2019 and ending on 25 October 2020.

5. On charge CC2017/5910 (take motor vehicle without authority) the offender is sentenced to seven months’ imprisonment commencing on 26 May 2020 and ending on 25 December 2020.

6. On charge CC2017/10758 (ride/drive motor vehicle without consent) the offender is convicted and sentenced to seven months’ imprisonment commencing on 26 July 2020 and ending on 25 February 2021.

7. On charge CC2017/7486 (unlawful possession of stolen property) the offender is convicted and sentenced to two months’ imprisonment commencing on 26 February 2021 and ending on 25 April 2021.

8. On charge CC2016/9148 (drive while disqualified) the Good Behaviour Order is cancelled and the offender is sentenced to 43 days’ imprisonment commencing on 26 April 2021 and ending on 7 June 2021.

9. On CC2014/11015 (drive while licence suspended by law) the Good Behaviour Order is cancelled and the offender is sentenced to 44 days’ imprisonment commencing on 26 April 2021 and ending on 8 June 2021.

10.On charge CC2014/10226 (drive while licence suspended by law) the Good Behaviour Order is cancelled and the offender is sentenced to 13 days’ imprisonment commencing on 26 April 2021 and ending on 8 May 2021.

11.On CC2014/2106 (drive while licence suspended by law) the Good Behaviour Order is cancelled and the offender is sentenced to 13 days’ imprisonment commencing on 26 April 2021 and ending on 8 May 2021.

12.On charges CC2014/10227, CC2014/10228, CC2014/10229, CC2014/10230, CC2014/10232, CC2014/10233, CC2014/118, CC2014/119, CC2014/121, CC2013/11443, CC2014/1195, CC2014/1196, CC2013/11281 and CC2013/11282 the breach of the Good Behaviour Order is proved and no further action is taken.

13.The non-parole period is for two years and one month, commencing on 26 May 2017 and ending on 25 June 2019.

I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.

Associate:

Date: 14 November 2017