R v CA
[2014] ACTSC 332
•28 October 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v CA |
Citation: | [2014] ACTSC 332 |
Hearing Date(s): | 28 October 2014 |
DecisionDate: | 28 October 2014 |
Before: | Murrell CJ |
Decision: | Total sentence of two years and one month’s imprisonment, suspended after four and a half months |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – aggravated burglary – burglary –theft – ride in motor vehicle taken without consent – damage property – minor theft – early pleas of guilty – compensation to victims – parity – rehabilitation of young offender |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 7, 33, 109, 133C Magistrates Court Act 1930 (ACT) s 90B |
Parties: | The Queen (Crown) CA (Offender) |
Representation: | Counsel Mr M Thomas (Crown) Mr D Rutherford (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (ACT/NSW) (Offender) | |
File Number(s): | SCC 139 of 2014; SCC 140 of 2014 |
MURRELL CJ:
Introduction
The young person adhered to pleas of guilty entered at an early opportunity in the Children’s Court. On 3 July 2014 he was committed for sentence in relation to a raft of serious dishonesty matters and other matters were referred, under s 90B of the Magistrates Court Act 1930 (ACT) for sentence in the Supreme Court. The utilitarian value of the early pleas should be reflected in a discount of approximately 25 per cent on the sentences that would otherwise have been imposed.
The offending behaviour comprises eight episodes of offending:
(a)On 28 December 2009
(i)aggravated burglary at the China Tea Club
(ii)theft at the China Tea Club
(b)On 20 June 2011
(i)aggravated burglary at Patto’s Grog Shop
(ii)theft
(iii)ride in a motor vehicle taken without consent.
(c)On 20 June 2011
(i)aggravated burglary on a pizza bar
(ii)theft
(iii)ride in a motor vehicle taken without consent
(d)On 20 June 2011
(i)burglary at the Monash Hair and Beauty Shop
(e)On 20 June 2011
(i)burglary at the Pizza Hut Erindale
(ii)theft
(f)On 22 June 2011
(i)burglary at the Yarralumla Post Office
(ii)ride in motor vehicle taken without consent
The referred offences are as follows:
(g)On 19-20 June 2011
(i)damage property (Saab vehicle)
(ii)minor theft
(h)On 19 or 20 June 2011
(i)damage property (food vending machine)
(ii)minor theft
For the offences of aggravated burglary, the maximum available penalty is 20 years’ imprisonment. For theft, the maximum available penalty is 10 years’ imprisonment. For riding in a motor vehicle taken without consent, the maximum available penalty is five years’ imprisonment. For burglary, the maximum available penalty is 14 years’ imprisonment. For damage to property, the maximum available penalty is six months’ imprisonment. For minor theft, the maximum available penalty is six months’ imprisonment.
Facts
The offender was born in November 1993. He was 16 years of age at the time of the 2009 offences and he was about 17.5 years of age at the time of the other offences. The detailed facts of the offences are set out in Exhibit 1.
The first incident occurred at about 11.34pm on 28 December 2009. The offender and an adult co‑offender, Benjamin Slattery, who was then about 25 years of age, broke into the China Tea Club Restaurant in Lyneham, activating a security alarm. They entered the restaurant and seized a quantity of alcohol. The incident was captured on CCTV cameras. The young person was identified by forensic evidence. The alcohol that was stolen was valued at a little over $500. Repairs were required to the glass panel at the front door of the premises.
The second incident occurred at 1.13am on 20 June 2011. The security alarm at Patto’s Grog Shop in Calwell was activated when a truck was driven into the side doors of the store. The incident was recorded on CCTV cameras. Two people were involved. The offender and a co‑offender removed alcohol with an estimated value exceeding $500 from the premises. Significant damage was caused by the use of the vehicle. The vehicle was later found abandoned and damaged in bushland.
The third incident occurred on the same night. The offender and two co‑offenders attended the Isabella Plains Takeaway and Pizza Bar after 3am. The co‑offenders were DD and RM. They kicked in the front door of the store and threw objects at the window of the store, eventually breaking in. They entered the store and seized a couple of items, the most significant of which was a cash register valued at $390. They left the scene in a vehicle that had been taken without consent. The stolen cash register was located outside the Monash Hair and Beauty Shop, which was burgled about 30 minutes later.
The fourth incident occurred at about 3.45am on 20 June 2011, when the offender entered the Monash Hair and Beauty Shop at Monash, having forcefully removed a roller‑shutter at the front of the shop and smashed the front window. He lifted the cash register from the service counter, then dropped it onto the floor and left without taking anything. Forensic evidence linked the young person to the offence.
The fifth incident concerned the Pizza Hut at Erindale. At about 4am on 20 June 2011 the offender broke the lower section of the glass front door and entered the shop. He broke into a donations box and took about $30, damaging the service counter top in the process. The offender attempted to force open the cash drawers behind the counter and damaged the lock. He also smashed the EFTPOS machine before leaving through the front door. Forensic evidence linked him to the offence.
The sixth incident involved the Yarralumla Post Office at Yarralumla. At about 3am, a Mazda vehicle was driven into the front of the post office. The front window was smashed and the vehicle itself was damaged in the process. The offender entered the store, removed the cash drawer, left it on the floor and then ran from the Post Office. The vehicle was abandoned following a police pursuit. Forensic evidence was obtained from the vehicle and matched to the offender. The vehicle had been taken earlier that day. The damage to the vehicle exceeded its value and it was destroyed. Significant damage was occasioned to the Post Office.
The referred matters were of a minor nature. The seventh incident occurred overnight on 19/ 20 June 2011. The top of a Saab vehicle parked in an underground car park in Kingston was cut open. The interior was searched and a small sum of cash was removed. The offender was linked by forensic material to this offence. The final episode occurred on the same night at the same location. It involved breaking into a food vending machine and removing a small number of items. Again, the offender was linked to the offence by forensic material.
Co-offenders
Some of the co‑offenders have been sentenced. In relation to the first incident, the adult co‑offender, Mr Slattery, was sentenced by Refshauge J to two years and three months’ imprisonment for the aggravated burglary and 12 months’ imprisonment for the theft. These sentences form part of an overall sentence of five years and two months’ imprisonment imposed, in relation to a raft of matters. Issues of parity with Mr Slattery do not arise as Mr Slattery was about 25 years old and the young person was 16 years of age at the time of the offences and Mr Slattery also had a number of prior convictions and was before the Court for additional matters.
The sentences imposed on DD are of more interest, in terms of parity. DD was a co‑offender in relation to the third episode, which involved the Isabella Plains Takeaway and Pizza Bar. In relation to the matters of aggravated burglary and theft, he was sentenced to seven months’ and four months’ imprisonment respectively, to run concurrently. At the same time, he was sentenced for other matters, receiving a total effective sentence of two years and nine months’ imprisonment, of which 15 months was suspended. His history was significantly worse than that of this young person. It is unclear whether he was on conditional liberty at the time that he committed the relevant offences. He advanced strong subjective circumstances, including a very disadvantaged background. He was about 18 months younger than this young person.
RM was a co‑offender in relation to the referred matters. He was not independently sentenced in relation to those matters; the matters were taken into account when RM was sentenced for other serious matters, including an aggravated burglary, three counts of burglary and related theft matters. He received a discount on sentence of approximately 25 per cent, resulting in an overall sentence of two years and six months’ imprisonment, suspended after six months. The more serious matters upon which he was sentenced were not those upon which I am sentencing this young person. However, it is of interest to consider those sentences as they are examples of the sorts of sentences that may be imposed for such matters. He had a prior history for aggravated robbery in company and other minor matters. He advanced strong subjective circumstances; he was from a disadvantaged background.
Subjective Circumstances
The young person has a history, but it is of a relatively minor nature. He was serving a 12 month good behaviour order at the time that the 2011 offences were committed, but that related to a matter of driving unlicensed. He had committed a burglary in February 2011, but was not sentenced for that matter until March 2012, when he received a 12 month good behaviour order. In New South Wales, minor dishonesty matters and driving matters have resulted in fines. There are outstanding matters in Queensland.
The offender gave evidence and I heard evidence from his father. The offender lived with his mother in a very unstable household for some years until prior to the 2011 offences. The household was one in which drugs and alcohol were freely abused and in which the young person received little guidance. His father played a part in his life, but not one of direct supervision. At the time that he committed the offences, the young person’s living circumstances were not conducive to a law abiding lifestyle. The young person said that, at the time of the 2011 offences, he was living with his girlfriend, abusing drugs and alcohol and associating with a bad peer group.
The offender’s father and his grandmother have since assumed a prominent role in his life. They have provided a great deal of emotional stability, and the prospect of a stable lifestyle upon his release from custody. When he is released, he will reside with his father, who is a plumber and drainer. He will undertake labouring work in the short term, and from next year he will undertake a plumbing apprenticeship with his father, who owns his own business. The young person is keen to pursue these opportunities. He is anxious to live with his father, with whom he has recently spent a lot of time. He appreciates the prospect of stability and a good future. He wants to make changes to his life.
The young person understands the impact that his offences must have had on the victims and he is happy to make recompense to them. I have evidence in the form of compensation schedules indicating losses of $4170. The offender has expressed regret and remorse for past conduct.
Other relevant matters
In sentencing the offender the Court has had regard to the sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) and to the relevant features in s 33 of the Act. I believe that I have referred to the relevant matters.
It is necessary to consider the objective seriousness of the offences. Each of the offences of aggravated burglary was objectively serious. In the young person’s favour, the premises that were burgled were commercial premises and they were burgled in the middle of the night, at a time when no one was likely to be present, and no one was present. However, the way in which the premises were burgled and the surrounding conduct of the young person demonstrated complete disrespect for the property of others.
Therefore, reparation is a very important consideration in the sentencing process.
The young person has spent about 130 days in adult custody at the Alexander Maconochie Centre. The Crown accepted that the period spent in adult custody would have had a salutary effect upon the young person and this does appear to be the case. That period goes a long way to meeting sentencing purposes of punishment, general deterrence and specific deterrence.
In sentencing a young person the Court must have regard to the provisions in ch 8A of the Sentencing Act, which make promotion of rehabilitation a very important sentencing objective. The Court may give more weight to that purpose than to any of the other purposes stated in s 7 of the Act. Section 133C(2) of the Act provides that:
(2)Also, in sentencing a young offender, a court must have particular regard to the common law principle of individualised justice.
In sentencing the offender, I apply the principles in ch 8A. I recognise the seriousness of the offences of aggravated burglary and burglary, as indicated by the maximum available penalties. But, in the circumstances of this case, I consider that it is appropriate to give great weight to rehabilitation of the young person and the principle of individualised justice, and to enable him to make the changes to his life to which he is committed.
Sentences
I convict the offender of each of the matters and I impose the following sentences:
(a)On 28 December 2009
(i)aggravated burglary on the China Tea Club. Six months’ imprisonment (reduced from eight months), from 17 June 2014 to 16 December 2014.
(ii)theft on the China Tea Club. Two months’ imprisonment (reduced from three months), to be served concurrently with the first sentence, from 17 June 2014 to 16 August 2014.
(b)On 20 June 2011
(i)aggravated burglary on Patto’s Grog Shop. Nine months’ imprisonment (reduced from 12 months), from 17 September 2014 to 16 June 2015.
(ii)theft. Four months’ imprisonment (reduced from six months), from 17 September 2014 to 16 January 2015.
(iii)ride in a motor vehicle taken without consent. Four months’ imprisonment (reduced from six months), from 17 September 2014 to 16 January 2015.
(c)On 20 June 2011
(i)aggravated burglary on a pizza bar. Nine months’ imprisonment (reduced from 12 months), from 17 January 2015 to 16 October 2015.
(ii)theft. Four months’ imprisonment (reduced from six months), from 17 January 2015 to 16 May 2015.
(iii)ride in a motor vehicle taken without consent. Four months’ imprisonment (reduced from six months), from 17 January 2015 to 16 May 2015.
(d)On 20 June 2011
(i)burglary on the Monash Hair and Beauty Shop. Seven months’ imprisonment (reduced from nine months), from 17 May 2015 to 16 December 2015.
(e)On 20 June 2011
(i)burglary on the Pizza Hut Erindale. Seven months’ imprisonment (discounted from nine months), from 17 August 2015 to 16 March 2016.
(ii)theft. Four months’ imprisonment (discounted from six months), from 17 August 2015 to 16 December 2015.
(f)On 22 June 2011
(i)burglary at Yarralumla Post Office. Seven months’ imprisonment (discounted from nine months), from 17 December 2015 to 16 July 2016.
(ii)ride in motor vehicle taken without consent. Four months’ imprisonment (discounted from six months), from 17 December 2015 to 16 April 2016.
In relation to the remaining four referred offences, in each case I impose a one month sentence of imprisonment from 17 June 2014 to 16 July 2014.
The total sentences that I have imposed result in an effective sentence of two years and one month of imprisonment. The sentences will be suspended from 31 October 2014, by which stage the offender will have served approximately four and a half months’ imprisonment. The remainder of the sentence, one year, eight months and 16 days, will be suspended on the young person entering into a good behaviour order for a period of two years from 31 October 2014.
The offender is to make reparation in the sums and to the parties detailed in Exhibit 3, in the total amount of $4170.28. Pursuant to s 109 of the Sentencing Act I order that the amount be paid by instalments of $250 per calendar month, the first instalment to be made on or before 30 November 2014.
| I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Sentence her Honour Chief Justice Murrell Associate: Date: 10 December 2014 |
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