R v CK
[2015] ACTSC 180
•14 May 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v CK |
Citation: | [2015] ACTSC 180 |
Hearing Date: | 14 May 2015 |
DecisionDate: | 14 May 2015 |
Before: | Penfold J |
Decision: | See [18] to [20] below. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence for large number of dishonesty offences deferred to allow rehabilitation – rehabilitation apparently successful – offender sentenced in accordance with indication given in 2014 – remaining sentence suspended subject to good behaviour order. |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) |
Cases Cited: | R v CK [2014] ACTSC 188 |
Parties: | The Queen (Crown) CK (Offender) |
Representation: | Counsel Ms P Burgoyne-Scutts (Crown) Mr R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 404 of 2011; SCC 169 of 2013; SCC 210 of 2013; SCC 91 of 2014; SCC 211 of 2013 |
On 19 May 2014 I deferred sentencing CK, on pleas of guilty, for a large number of dishonesty offences, being:
(a)one burglary;
(b)15 offences of obtaining property by deception;
(c)one offence of being knowingly concerned in obtaining property by deception; and
(d)one offence of attempting to ride in a motor vehicle dishonestly and without consent.
There is also an offence of giving a false name to police, which is to be taken into account in sentencing CK for one of the offences of obtaining property by deception.
Sentencing was deferred until today to give CK an opportunity to address the causes of his offending behaviour, specifically by undertaking residential rehabilitation aimed at his illicit drug use. An extract from my May 2014 remarks (R v CK [2014] ACTSC 188) is attached to these remarks, so I do not intend to go into the same detail about the offences and CK’s circumstances today.
The burglary committed on 8 May 2013 involved CK opening a window and removing a flyscreen to gain entry to a domestic residence. The property was not damaged, and nothing was stolen, but CK drank some lemonade he found in the pantry, and in due course the DNA left on the lemonade bottle identified him as the offender.
The deception offences were committed on 22 May 2013. The Commonwealth Bank debit card was stolen during a burglary. CK came into possession of the debit card and in the course of the day, used or took part in using the card to make purchases to a total value of $1,181.12, mainly involving the purchase of packets of cigarettes.
The offence of attempting to ride in a motor vehicle without consent was committed on 28 May 2013. The car keys had been stolen during a burglary, and early the next morning CK and another man tried to remove the vehicle using the stolen keys, but it failed to start (presumably because the vehicle’s owners had removed its fuses). Fingerprints were found on the vehicle which linked CK to the attempt.
CK was arrested on 28 May 2013 and remanded in custody, where he stayed until 2 February 2014, when he was bailed to attend Karralika residential rehabilitation. He had spent 252 days in custody in that first period.
There will be sentencing discounts for CK’s pleas of guilty, recognising that all of them have utilitarian value, but some discounts will be more generous than others because I have assessed the relevant pleas of guilty as coming earlier than other pleas of guilty.
Last year I noted that all the offences seemed to be relatively low-range examples of what are in the abstract fairly serious offences. All the offences were aggravated by being committed within about three months after CK had been released from custody for earlier offending, and particularly by being committed only three months into a 12-month good behaviour order.
10. Last year I noted that CK, who is still only 22, has a shocking criminal history dating back to when he was 14. However, I think I am right in saying that there has been no offending since these matters, the matters I am dealing with now, so no offending since mid-2013.
11. I accepted CK’s pleas of guilty last year as some evidence of remorse.
12. CK had a difficult and disrupted childhood affected by his parents’ substance abuse and their early separation. He spent some years at a time with each parent during his adolescence, as well as significant periods with his grandmother or in juvenile justice facilities. He completed Year 10 in Bimberi and his only employment was for a couple of months in 2010.
13. Last year I noted that substance abuse was at the heart of CK’s problems, while accepting the aspects of his personal history have led him to that substance abuse, and particularly led him to engage in substance abuse from a very early age. CK claimed he was under the influence of amphetamines at the time of the burglary, and that the cigarettes he bought with the stolen debit card were to be exchanged for illicit drugs. I noted counsel’s submission that there is authority for the proposition that relevant drug addiction may to some extent mitigate the culpability of an offender if that addiction has been acquired at a point when the offender is too immature to exercise good judgment about the risks of substance abuse.
14. CK had made minor attempts at drug rehabilitation during earlier periods in custody, but in February 2014 he was bailed to attend Karralika Therapeutic Community. He continued in Karralika programs, with a couple of minor setbacks, until February this year, and remains engaged with Karralika. During the year he received several glowing reports from his supervisors at that facility. His current counsellor through Karralika describes CK as appearing committed to his recovery and being focussed on continuing to build a positive future for himself. Urinalysis conducted by Corrective Services until recently supports his claim of continued absence from illicit substances.
15. Having regard to CK’s impressive rehabilitation, it is appropriate that I proceed to sentence him as I foreshadowed last year on the basis that he has complied with the deferred sentence order and with his bail conditions.
16. CK, please stand. I record convictions on one charge of burglary, 15 charges of obtaining property by deception, one charge of being knowingly concerned in obtaining property by deception, and one charge of attempting to ride in a motor vehicle without consent. [Note: convictions had already been recorded when sentence was deferred in May 2014.]
17. I also note the scheduled offence of giving a false name to police, and I shall take it into account when I come to sentence you for the first offence of obtaining property by deception.
18. Next, I note that in May last year, after I imposed a 12-month sentence that had previously been suspended subject to a good behaviour order that you breached by some of this offending, there were 223 days of time served to be accounted for in this sentencing. As foreshadowed last year, I propose to backdate the sentences that I am about to impose for a total of 18 months, giving credit for roughly 10½ months spent in several periods in residential rehabilitation on top of the pre-sentence custody backdating. I now sentence you to a total of 33 months imprisonment made up as follows:
(a)for the burglary, 15 months reduced from 20 months for your plea of guilty;
(b)for the 15 obtain property by deception offences and for the one offence of being knowingly concerned in obtaining property by deception, to 7 months each reduced from 8 months; and
(c)for the attempt to ride a motor vehicle without consent offence, to 8 months imprisonment reduced from 10 months.
19. The deception offences will be accumulated on the burglary sentence, so that each adds one month to the total sentence, and the motor vehicle offence will add two months to that sentence, giving the total sentence of 33 months. That sentence will be backdated to 14 November 2013 for reasons I have already explained, and so it will run until 13 August 2016.
20. The backdating means that the burglary sentence, and the sentences for the first three obtaining property by deception offences, have now been completed and the remaining sentences will be suspended from today. In conjunction with that suspension, I now order you to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 15 months, subject to the conditions that:
(a)for such period not exceeding 15 months as Corrective Services considers necessary, you accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General or her delegate; and
(b)that on or before Monday, 18 May 2015, CK, you attend Corrective Services at Eclipse House to arrange supervision.
21. You will be given a written copy of the good behaviour order and it will be read to you by the court officials, but as you know from previous experience, CK, it means that for the next 15 months, you need to keep out of trouble and you need to keep in contact with Corrective Services and do as your Corrective Services supervisor tells you. If you breach the good behaviour order and particularly, CK, if you commit another offence in that 15 months, you could find yourself back before this court to be re-sentenced for the outstanding offences (so that is 12 of 13 of the deception offences, plus the motor vehicle offence) and if you re-offend you have got sentences for all of those outstanding, and you could find yourself serving some or all of that remaining 15 months of your sentence in full-time custody.
22. I think you know that you have had enough of full-time custody, and it is really important now to stick with the rehabilitation that you have achieved and not to do anything silly from now on, do not go back to drugs, and do not come back to court, please.
23. If you have got any other questions about any of this, CK, ask Mr Davies and he will help you.
24. You may sit down.
| I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Kate Harris Date: 10 July 2015 |
ATTACHMENT – EXTRACT FROM SENTENCING REMARKS 19 MAY 2014
Today’s offences arise under the Criminal Code 2002 (ACT) and the Crimes Act 1900 (ACT) as follows:
(a)burglary arises under section 311 of the Criminal Code and carries a maximum penalty including 14 years imprisonment;
(b)obtaining property by deception arises under s 326 of the Criminal Code with a maximum penalty of 10 years imprisonment;
(c)riding in a motor vehicle dishonestly and without consent arises under s 318 of the Criminal Code and carries a maximum penalty of five years imprisonment;
(d)the scheduled offence of giving a false name to police is created by s 211 of the Crimes Act and carries a maximum penalty of a fine of $500.
The burglary was committed on 8 May 2013 in Lyons. CK opened a window and removed a flyscreen to gain entry to a domestic residence. The property was not damaged, and nothing was stolen, except that some lemonade had been drunk from a bottle that had been in the pantry when the owners left the residence that morning. The DNA left on the lemonade bottle identified CK as the offender.
The deception offences were committed on 22 May 2013. A Commonwealth Bank debit card was stolen during a burglary at a house in Holder. CK has not been charged with the burglary, but he came into possession of the debit card (he says he found it in the street) and in the course of the day used the card, or was involved in the use of the card, to make purchases to a total value of $1,181.12, consisting of 36 packets of cigarettes, several gift cards, a mobile phone, some alcohol and assorted minor items.
The offence of attempting to ride in a motor vehicle without consent was committed on 28 May 2013. During the previous day a house in Holder was burgled, and spare car keys were stolen. The residents reported the burglary to police, but also took the precaution of removing fuses from the vehicle to which the stolen car keys belonged. Early the following morning, CK and another man, Mr Simms, tried to remove the vehicle using the stolen keys, but it failed to start. Police were called and shortly afterwards they stopped a vehicle in a nearby suburb containing CK and Mr Simms. In due course, fingerprints were found on the vehicle which linked CK to the attempt.
...
CK was arrested on 28 May 2013 and remanded in custody, where he stayed until 2 February this year, when he was bailed to attend Karralika residential rehabilitation. He spent 252 days in custody in that period.
10. Some of CK’s pleas of guilty came later than others. He pleaded guilty to the burglary on the first occasion he appeared in court in relation to that charge, being 6 December 2013. The pleas to the deception offences were entered on 3 October 2013 after a series of appearances in the Magistrates Court for the preparation of the Magistrates Court brief of evidence and some case management. A plea of guilty to the attempted car theft offence has only been entered today, but I note that this matter was committed to the Supreme Court for trial without going through any Magistrates Court case management processes at the same time as CK was committed to this court for sentence on the burglary matter.
11. There will be sentence discounts for the pleas of guilty, recognising that all of them have utilitarian value, but some discounts will be more generous than others.
12. All these offences seem to me to be relatively low-range examples of what are in the abstract fairly serious offences. Neither the burglary nor the attempt to take the car provided any gain to CK, although in one case that was because of the foresight and mechanical competence of the car’s owner. The deception offences did not involve a substantial gain to CK nor, presumably, a substantial loss to the owner of the debit card, but CK should not delude himself by thinking that only the banks suffer from such offences – quite apart from the inconvenience for a person who loses a debit card, there is no doubt that the whole community bears the cost of card fraud through increased bank fees, lower interest on deposits and so on.
13. All the offences were aggravated by being committed within about three months after CK had been released from custody for earlier offending, and particularly by being committed only three months into a 12-month good behaviour order.
14. CK, who is still only 21, has a shocking criminal history dating back to when he was 14. As well as the current offences and the 11 offences for which I sentenced him in 2012, his record shows six burglaries, one of which was aggravated, one attempted burglary, 10 car theft offences, an aggravated robbery, two receiving stolen property offences, an assault occasioning actual bodily harm and various other more minor offences.
15. CK’s pleas of guilty no doubt recognise what were conceded to be strong Crown cases in relation to each of the offences, but I accept them also as some evidence of remorse. I note that the Pre‑Sentence Report comment that CK’s description of the deception offences differed markedly from the statement of facts appears to have arisen from an assumption that CK was involved with the burglary in which the debit card was stolen, although he has not been charged with that offence, and accordingly his claim to have found the debit card in the street is not inconsistent with that statement of facts.
16. When I sentenced CK in December 2012, I described his background as follows:
CK comes from a significantly dysfunctional family, with a mother who used heroin and an alcoholic father. His father has now been sober for many years. His parents separated when he was quite young. He lived with his mother until he was ten years old, then with his father and brother until at age 15 he was first incarcerated.
CK has very limited education, but completed his Year 10 certificate in Bimberi. He has had unskilled work from time to time since he was 12, in between periods of incarceration.
CK says that his mental health is fine. He appears to have little or no connection with or support from parents or siblings these days.
17. That was in 2012. The current Pre‑Sentence Reports provide some further and some different information:
... CK advised that his elder siblings were removed from his mother’s care when he was eight years of age, and at ten years of age he was also removed from the family home by police and subsequently placed into the care of his father. CK reported that whilst in the care of his father, he suffered a sporting injury resulting in a cessation of his participation in sporting activities, leading to involvement with an anti-social peer group. According to CK, he commenced drinking alcohol to excess on a daily basis, and his behaviour at school deteriorated significantly, until at 13 years of age his father returned him to the care of his mother.
Since that time CK has spent significant periods of time incarcerated in ACT juvenile justice facilities. When in the community, he has spent varying periods of time residing with his mother and paternal grandmother, whom he acknowledges has provided him with ongoing stability and support until recently. CK advised that he is currently estranged from his grandmother and most of his family supports, as his grandmother in particular is angry and disappointed by his offending behaviour.
...
CK described a very limited employment history consisting of a two month period of labouring work in 2010. CK’s grandmother has previously confirmed this information, noting her grandson had enjoyed the work and showed initiative. CK reported a strong interest in pursuing employment within the construction industry in the future.
18. Substance abuse appears to be at the heart of CK’s problems, accepting that aspects of his personal history have led him to that substance abuse, and particularly have led him to engage in substance abuse from a very early age. In 2012 it was put to me that alcohol abuse was CK’s main problem, as indicated among other things by the fact that when he went into custody in October 2011 at the age of 19 his liver was apparently in very poor condition. He claims, however, to have stopped using alcohol in 2011 and to have concentrated on cannabis and, most problematically, amphetamines (being ice) since then. CK claims that he was under the influence of amphetamines at the time of the burglary, and that the cigarettes he bought with the stolen debit card were to be exchanged for illicit drugs. No particular connection is suggested between his drug use and his involvement in the attempted removal of the vehicle. I accept counsel’s submission that there is authority for the proposition that relevant drug addiction may, to some extent, mitigate the culpability of an offender, if that addiction has been acquired at a point when the offender is too immature to exercise good judgment about the risks of substance abuse.
19. Until being remanded in custody in relation to the current offences, CK had shown no particular enthusiasm for pursuing rehabilitation, and had done little or nothing apart from completing the First Steps Alcohol and Other Drugs program while in the AMC in 2011. However, as mentioned, in February of this year he was released on bail to attend Karralika Therapeutic Community, and he has now been there for over three months. His senior case manager, Tim Green, provided a glowing report on his progress to date, describing his progress as “nothing short of phenomenal”. Mr Green said:
... CK is motivated, eager to learn, freely and willingly participates in all facets of the program with enthusiasm and sincerity, takes on and does the suggested things (in terms of recovery), is clearly developing a personal value system which is pro-social and demonstrates a passionate attitude congruent with obtaining and sustaining a lasting recovery from his drug addiction.
...
During his tenure within the program CK has made significant and demonstrable progress in identifying and addressing the issues that underlie his addiction; such treatment issues include low self-esteem, guilt, shame, distrust of authority, and the need to communicate assertively.
CK is now in the senior treatment phase of our program (the senior phase in which he is responsible for overseeing and taking responsibility not only for himself but his peer group as well) and has recently been promoted by merit of action to the position of Assistant Manager of the Kitchen. Based on the observations of his peers, staff and myself, he has most certainly developed into a fine role model for his junior peers.
Without hesitation, I am happy to report that CK commitment to this program (in terms of practising “Right Living”) as well as his commitment to his ongoing recovery from drug dependence issues is as strong and resolute as I have witnessed in any client previously.
20. The offences I am dealing with today are offences that always require general deterrence, and it is clear that CK requires significant personal deterrence as well, to ensure that he maintains his current commitment to an effective and lasting rehabilitation. I note also the prosecutor’s submissions to the effect that the sentencing purposes of punishment, holding CK to account, and protecting the community are also relevant in this sentencing. Protecting the community in this case renders the purpose of rehabilitation also important, since it is inevitable, given the nature of his offending, that CK will be released into the community in the not too distant future, rehabilitated or not. Given CK’s good progress in residential rehabilitation so far, and the significance of him overcoming his substance abuse problems to his chances of leading a pro-social life in the future, I accept submissions that have been made to the effect that this would be an appropriate case for a deferred sentence order.