R v Collier
[2019] ACTSC 358
•19 December 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title:
R v Collier
Citation:
[2019] ACTSC 358
Hearing Dates:
26 and 27 November 2019
Decision Date:
19 December 2019
Before:
Loukas-Karlsson J
Decision:
See [78]
Catchwords:
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – circumstances of violence – where offender did not personally perpetrate or threaten violence – plea of guilty – criminal history
Legislation Cited:
Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 12, 33, 35, 35A
Criminal Code 2002 (ACT) s 312
Crimes (Sentencing Procedure) Act 1999 (NSW) s 22
Cases Cited:
Alvares v R; Farache v R [2011] NSWCCA 33; 209 A Crim R 297
Blundell v The Queen [2019] ACTCA 34
Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Butters v The Queen [2010] NSWCCA 1
Director of Public Prosecutions v Dalgliesh [2017] HCA 41; 262 CLR 428
DPP v Brooks [2008] VSCA 253
Elias v The Queen [2013] HCA 31; 248 CLR 483
Fusimalohi v The Queen [2012] ACTCA 49
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Hili v the Queen [2010] HCA 45; 242 CLR 520
Hogan v Hinch [2011] HCA 4; 243 CLR 506
Hogarth v The Queen [2012] VSCA 302; 37 VR 658
Imbornone v The Queen [2017] NSWCCA 144
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80
Mun v The Queen [2015] NSWCCA 234
R v Harrison [2002] NSWCCA 79; 121 A Crim R 380
R v Lockwood [2018] ACTSC 288
R v Mumberson [2011] NSWCCA 54
R v Pham [2015] HCA 39; 256 CLR 550
R v Salcedo; R v Stretton (No 3) [2018] ACTSC 305
R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103
R v Williams [2019] ACTSC 298
The Queen v De Simoni (1981) 147 CLR 383
Thompson v The Queen [2018] ACTCA 2
Van Zwam v The Queen [2017] NSWCCA 127
Parties:
The Queen (Crown)
Norman Collier (Offender)
Representation:
Counsel
K Lee (Crown)
B Morrisroe (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown)
Boxall Legal (Offender)
File Number:
SCC 199 of 2019
Introduction
1. On 26 November 2019, Mr Norman Collier (the offender) pleaded guilty to the offence of aggravated burglary contrary to section 312 of the Criminal Code 2002 (ACT) (Criminal Code).
2. The maximum penalty for aggravated burglary is imprisonment for 20 years, a fine, or both.
Agreed Facts
3. The agreed facts are set out in the Statement of Facts, which forms Exhibit 1. What follows is a brief summary.
4. On 10 January 2019, the offender accompanied Dean Reid, David Evans, Joshua Watson, and Sharon Ann Stott to the residence of Mr Goward (the victim) at Oaks Estate.
5. They came to the property because Ms Stott wanted to speak with the victim for a number of reasons.
6. Ms Stott was certain that the victim would not allow her into his apartment. She believed that he would allow the men to enter his unit if she was not present, and she had brought them there for the purpose of getting the door open.
7. The offender spoke to the victim through the locked screen door of his unit. He did not let them in. The offender and Mr Watson left the front door of the unit and returned several minutes later with Mr Reid and Mr Evans. Mr Reid then spoke with the victim through the locked screen door. At around 6:18pm the victim allowed Mr Reid to enter the unit and the others followed him inside.
8. The victim had been holding a kitchen knife for his protection. Once inside one of the co-offenders disarmed him of the knife and took control of it, pushing him to the ground in the process. The victim was then threatened and assaulted by Mr Reid and Mr Evans. Mr Reid held the knife to the victim’s throat, made various threats to him, and used the knife to stab the victim in his left thigh. Mr Evans used an electric guitar which he had found in the unit to repeatedly strike the victim, breaking his right leg and three of his ribs. At one point the victim was also struck in the right leg with a metal bar.
9. Around 6.32 pm CCTV captured Ms Stott walking up the stairs to the victim’s unit, with her phone in hand, and enter the unit. Once inside, Ms Stott said “Where’s the fucking guns? I want the fucking guns” in an aggressive manner. The offender found various gun parts in the victim’s bedroom and handed them to Ms Stott.
10. At 6:39pm the offender and all four co-offenders were captured on CCTV leaving the unit. The offender was captured carrying two laptop computers which had been taken from the victim’s unit. Ms Stott was carrying the gun parts wrapped in a blanket. Mr Watson was carrying a steel bar. All five offenders returned to Ms Stott’s car and left the Oaks Estate complex.
11. While he entered the unit with the victim’s consent, the offender did not have permission to remain in the victim’s unit once the assaults had begun. The offender took advantage of the circumstances to commit the theft of the laptops without permission.
Victim Impact Statement
12. In evidence before me were three Victim Impact Statements. The Victim Impact Statement written by the victim was read onto the record by the prosecution at the sentence hearing (T 38-40, 26.11.19). The two other Victim Impact Statements were written by the victim’s partner and his daughter. They were filed but not read onto the record.
13. The extent of the impact upon the victims was made clear by the Victim Impact Statements. The reading of the Victim Impact Statement of the victim by the prosecution is important as the offender heard what the victim had to say. Courts know the extremely serious effects of an offence such as this. Nevertheless, it is valuable to hear the words of the victims.
14. Much of the Victim Impact Statement is addressed toward the circumstances that surrounded the offence and the ongoing effect that the assaults by the co-offenders have had on the victim’s long-term physical health and mental well-being. The Victim Impact Statement does not directly address the impact of the offence involving the aggravated burglary of the laptops with which the offender has been charged. It does, however, describe the context in which the offence occurred including the violence of the other offenders.
15. The Court acknowledges the significant impact upon the victim of what occurred whilst at the same time recognising that this offender is not charged in connection with the violence that was perpetrated upon the victim.
Objective Seriousness
Offender’s submissions
16. Under s 312 of the Criminal Code the aggravating circumstances are either commission of the offence in company or with an offensive weapon.
17. Counsel for the offender put forward a number of submissions as to why the offence was towards the lower end of objective seriousness, as follows: entry to the premises was by consent, and the offence was established by the offender remaining at the premises in the circumstances of the offences committed by the four co-offenders, together with the taking of the two laptops. The offender did not cause any damage to the premises, did not take property of high value, and did not personally perpetrate or threaten any violence. Counsel noted that there was no pre-meditation or sophistication to the offence.
18. It was submitted that the offender accepted the Victim Impact Statements, but noted that the impacts described were relevant to the offending of the co-offenders, with little mention of the impact of the offender’s actions.
Prosecution submissions
19. Counsel for the prosecution submitted that the offence was statutorily aggravated on the basis that it was committed in company (with four others) and at the time of the offence at least one of the co-offenders was in the possession of an offensive weapon. While not committing any violent offences himself, the offender exploited an opportunity and took advantage of the violence of others to remove the two laptops from the victim’s unit (T 28.4-5). Counsel for the prosecution accepted that it was not the offender who perpetrated the violence or inflicted the injuries (T 10.7-8).
20. Counsel noted that the value of the property taken by the offender was unlikely to be very high, and cited passages from DPP v Brooks [2008] VSCA 253 (Brooks) and Hogarth v The Queen [2012] VSCSA 302 (Hogarth). Both judgments addressed the serious violation of privacy and safety associated with the invasion of a home.
21. Counsel for the prosecution submitted that this offence lay in the mid-range of offences of this type.
22. Nevertheless, it must be stated that references to low, mid-range and high-range are unlikely to be helpful in this jurisdiction. As has previously been expressed “it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case” (R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua) at [24]). In this case the objective seriousness is informed by the context in which it occurred.
23. I find the offence to be of mid-range and accept the submissions of the prosecution in relation to the identifying features of the case.
Subjective Circumstances
24. No pre-sentence report was available. The offender’s subjective circumstances were outlined in Counsel’s oral and written submissions.
25. At the time of the offence the offender was twenty-five years of age. He was born to a Maori father and Aboriginal mother. His counsel submitted that he experienced childhood disadvantage and was raised in circumstances of alcohol abuse and violence.
26. Counsel for the offender submitted that despite this childhood disadvantage, the offender has made significant improvements to overcome his upbringing. The offender attended High School but did not complete it. He also played rugby league. After leaving school he commenced employment, working at an IGA doing split shifts stocking fruit and other items up to 12 hours per day; began an apprenticeship in spray painting motor vehicles for 8 months; worked for a number of years as a scaffolder and on and off for a period of time in the tiling industry; and completed a construction white card certificate in 2015 and certificate in asbestos removal in 2017. It was submitted that employment has been the primary source of pride and self-worth for the offender.
27. At the time of the offending the offender had been “effectively couch surfing” for a number of months after being kicked out of home by his mother at the end of October 2018 (T 48.32-3 26.11.2019). At the end of November 2018 he was seriously assaulted in Queanbeyan and suffered a number of injuries, the most serious being an injury to his wrist and hand which rendered him unable to work.
28. It was at this time that he met Ms Stott and the other co-offenders, who assisted him with places to stay. It was submitted that he “went along on the day of the offending for a ride with no understanding of what would ultimately unfold” (Written Submissions).
29. The offender has been offered employment upon his release from custody by a former employer. He has been offered paid employment as a labourer, 6 days per week between the hours of 7am and 8pm. The employer provided a letter to the court stating that the offender has worked for his business before, that he is aware of the offender’s criminal history including the current offence, and that employment would be offered to the offender whenever he is released from custody.
30. The offender has been offered two residences where he can stay post-custody until he earns sufficient money from his employment for his own residence. One is in NSW and the other in the ACT (T 53.13-17 26.11.2019). This is supported by the affidavit of his ex-partner who has offered to provide him with a room at her ACT property should he be released from custody. His intention is to work and resolve his medical issues. Counsel for the offender submitted employment would be “the most protective factor in terms of criminogenic risk, and the needs of the community are best served by the offender’s release and commencement of employment” (Written Submissions).
Remorse
31. In written sentencing submissions counsel for the offender submitted that he is “remorseful for his actions in remaining at the premises and making the spontaneous decision to take the items’” and that “the offender recognises the harm done to the victim by the actions of some of the people that he was with”, referring to the co-offenders.
32. The courts have stated on many occasions that statements made by an offender which are not supported by the offender giving sworn evidence should be treated with considerable caution: see Butters v The Queen [2010] NSWCCA 1 (Butters) at [18]; Fusimalohi v The Queen [2012] ACTCA 49 at [8] per Burns and Lander JJ; Alvares v R; Farache v The Queen [2011] NSWCCA 33; 209 A Crim R 297 at [44]; Mun v The Queen [2015] NSWCCA 234 (Mun) at [36]; R v Mumberson [2011] NSWCCA 54 at [38]. Courts do not simply disregard evidence of remorse if the offender does not go into the witness box and give evidence. It is, however, relevant to the weight of the evidence: Butters at [18]; Mun at [37]; Van Zwam v The Queen [2017] NSWCCA 127 at [6], [110]. These cases can be contrasted with Imbornone v The Queen [2017] NSWCCA 144 and R v Harrison [2002] NSWCCA 79; 121 A Crim R 380, where the sentencing judge, in each case, was not in error in rejecting the offender’s self-serving untested statements as evidence of remorse. Accordingly, I do not ascribe significant weight to the remorse expressed.
References and Other Documents
33. There is a letter from a former employer dated 25 November 2019 indicating that he is willing to employ the offender, and an affidavit from the offender’s friend and former partner. That affidavit was originally provided, it appears, on the question of bail, indicating there is a room at her home where the offender can reside as long as he requires it.
34. In evidence before me were the two documents in support of the offender, which included the following:
(a) The letter from the former employer, dated 25 November 2019, which included:
I work as a tiler and run my own business. … I have run this business for 15 years. I am responsible for the hiring and firing of employees in that business.
[The offender] has previously worked for me. He worked for me for total period of 1 year. [The offender] held the position of labourer during that time. I found that [the offender’s] work was of a good standard and I was happy with him as an employee.
I am aware of the current charges before the Court, being aggravated burglary. I am aware [the offender] has prior matters on his criminal history which involve violence. Despite this, I am able to offer [him] employment with my company upon his release from prison.
Ideally, [he] would work 6 days a week between 7am and 8pm, and hold the position of labourer. I have been advised by the offender’s solicitor that his release date from prison is not yet certain, but I am in a position to offer [him] employment when he is released from custody…
(b) An affidavit from the offender’s former partner, undated, lodged 7 November 2019, which included:
I am willing to have the [offender] reside with me at [my address] in the [Australian Capital Territory]. My house has 3 bedrooms and the [offender] can have a room as long as he needs. I am the only adult residing in this residence, and I have my two underage children visit me there during the day.
35. I take these documents into account on sentence.
Criminal History
36. The offender has a criminal history which includes assault occasioning actual bodily harm in 2014 in NSW, and an ACT affray offence in 2015. He also has NSW assault occasioning actual bodily harm convictions in 2015 and 2016. He has previously served terms of imprisonment and was sentenced in NSW to an intensive corrections order.
37. Counsel for the offender conceded that the offender has a criminal history, but submitted that “there is no like offending on his criminal history” (T 52.35 26.11.19). It was submitted those convictions are “not particularly relevant to the offending before the Court” (Written Submissions).
38. The prosecution submitted that the previous convictions were “not particularly relevant to the offending before the court. It’s certainly the case that they are not of a similar nature. They are not dishonesty offences. There are no burglary offences.” It was also submitted that “[o]n the other hand there are a number of convictions for violent offences, different type of offences…” and submitted that this “disentitles [the offender] to the degree of leniency that someone who has no history would be entitled to, and that’s as high as I put it.”
39. I agree with the broadly similar submissions of the prosecution and counsel for the offender as the submissions align with my own view of the criminal record.
Plea of Guilty
40. There was no agreement as between the parties as to the discount for the offender’s plea of guilty. The offender indicated a plea of guilty to the charge on the first day of the trial. It was entered on the 26 November 2019. There had been a Criminal Case Conference in relation to the earlier charges, and these charges were withdrawn by the prosecution.
41. In Blundell v The Queen [2019] ACTCA 34 (Blundell) the Court of Appeal addressed the appropriate discount to be given for pleas given during or immediately after a Criminal Case Conference. In Blundell at [13] the court stated that:
The utilitarian value includes a range of factors including savings of time and cost, relieving witnesses from giving evidence (often being people who will find giving evidence very difficult) and the avoidance of often prolonged pre-trial applications… It is also vital that persons coming to a Criminal Case Conference do so with confidence that pleas of guilty will attract more than a minimum discount. This confidence should also extend to the community at large, knowing that persons will be treated consistently, in turn enhancing the proper administration of justice.
42. In Blundell the Court of Appeal also referred to R v Williams [2019] ACTSC 298 where the Chief Justice said at [4]:
In relation to pleas entered at or in the immediate aftermath of Criminal Case Conferencing, it is the Court's usual practice to allow a discount of up to about 20 per cent. This practice provides a degree of assurance to persons who are considering whether or not they should enter pleas at the time of Criminal Case Conferencing.
43. In Blundell the court also said at [16]-[17]:
[Toumo’ua] emphasises that the primary consideration is the utilitarian value of a plea, which largely depends on the timing of the plea. It clarifies that, if an offender accepts a belated Crown offer to proceed on fewer charges, then the offender’s acceptance of the offer is not a plea at the earliest reasonable opportunity such as would entitle the offender to a 25% discount. In other words, ‘the clock starts ticking’ when the offender is first charged, not when the Crown first makes the offer that ultimately resolves the proceedings. The position may be otherwise if, at an early stage, the offender has offered to plead on a basis that is ultimately accepted by the Crown.
Another matter that is significant in this case is that, where negotiations result in a plea, it is not relevant to consider any benefit to the offender associated with the Crown abandoning particular charges. In relation to charges that are not pursued, it must be assumed that the offender was not guilty and therefore gained no advantage by the withdrawal of the charges.
44. Counsel for the prosecution sought to distinguish this matter from Blundell on the basis that the discount range applied in that decision is confined to pleas that directly arise at, or in the immediate aftermath of, Criminal Case Conferencing, but accepted “that there [was] utilitarian value in the plea despite it being a late plea” (T 4.34-35).
45. It was submitted that in this matter no pleas were indicated at the Criminal Case Conferences held on 21 October 2019 and 24 October 2019. The offender rejected the offer that the prosecution had made and no counter-offer was made, nor was there any identification of any offences which he would be willing to plead to.
46. It was submitted by counsel for the offender that the plea had come at the “first available opportunity” (T 56.40-41 26.10.2019) on the basis that the charge that he had pleaded to was substantially different to the two offences that he had originally been charged with. The offender had been through a case conference process in relation to the earlier charges. Those charges were withdrawn by the prosecution and the offender was arraigned on an ex officio indictment. It was submitted that most significant issues being dealt with at the Criminal Case Conference were with respect to the joint indictment of the co-offenders, many of which were not relevant to the offender.
47. It was submitted by Counsel for the offender that since pleading guilty the offender has facilitated the administration of justice. No witnesses were required to give evidence, no pre-trial applications were made, and as such there was a saving of cost and time. Counsel also noted in oral submissions that this matter had taken only a matter of months from the offender’s arrest to the sentencing hearing. In oral and written submissions counsel submitted the offender should receive a substantial discount of 20-25% (T 44-45 26.11.19).
48. In written submissions counsel for the prosecution suggested that the Court will need to take into account that the aggravated burglary occurred “in the context of a home invasion”. Counsel for the offender raised the issue of the plea and the principle expressed in The Queen v De Simoni (1981) 147 CLR 383. Counsel for the offender noted that the plea was to an aggravated burglary, that is, that the offender remained following the withdrawal of permission and stole two laptops.
49. Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard. This provision may be compared with the less prescriptive terms of s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Section 22 is focused on the utilitarian value of pleas of guilty: see Toumo’ua at [41]-[48].
50. Pursuant to section 35(2)(c) of the Sentencing Act, it should be noted that the pleas were the subject of negotiations between the parties.
51. Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 noted that the ACT courts have adopted an approach to s 35 discounts that is similar to NSW at [47]. However, the ACT statutory scheme does differ from that of NSW: see Toumo’ua at [50].
52. In accordance with the authorities I will allow a discount of 10% for the plea of guilty.
53. I indicate that on the facts of this case I do not propose to apply a separate discount for the assistance in the administration of justice for this case under s 35A.
Time in Custody
54. The offender has been in custody since 2 July 2019, and that custody is solely referable to this offence.
Cases
55. Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this court relating to offenders who committed similar offences. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4] that:
[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent
56. The following cases from this jurisdiction provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54].
57. I was referred to the cases of R v Salcedo; R v Stretton(No 3) [2018] ACTSC 305 and R v Lockwood [2018] ACTSC 288 (Lockwood) by the prosecution. These cases involved different factual circumstances. In written submissions the Counsel for the prosecution accepted that they may only ‘be of limited utility because of that difference.’ (Written submissions).
58. Counsel for the offender accepted that the Salcedo decision articulates a number of important principles relevant to an aggravated burglary involving violence. But distinguished it on the basis that it was agreed between the parties that the offender was not responsible in any way for the injuries or robbery perpetrated upon the victim. It also involved a finding of guilt at trial.
59. Counsel for the offender submitted that there were significant factual differences between this matter and Lockwood. Most significantly, the joint culpability associated with the use of significant violence in the course of an aggravated burglary in Lockwood.
60. It was submitted that Lockwood was of limited comparative value given the difference between the serious and violent nature of the offender’s conduct in that case and the circumstances of this matter.
Parity
61. The Court of Appeal in Thompson v The Queen [2018] ACTCA 2 at [24] stated the following:
[J]ust as equal justice requires that like offenders should be treated alike, relevant differences should also be acknowledged: Postiglione v The Queen (1997) 189 CLR 295, 301–2 (Postiglione) per Dawson and Gaudron JJ. This approach to parity has been applied by this Court in many cases, including Singh v The Queen [2017] ACTCA 17 at [74], Rubino v The Queen [2015] ACTCA 22 at [26]–[27] and Le Clair v The Queen [2017] ACTCA 19 at [48] (Le Clair).
62. The principles in relation to parity in sentencing co-offenders are well known. Unjustifiable disparity is an infringement of the equal justice norm: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [32].
63. Counsel for both parties made submissions in relation to parity. These submissions were made in reference to the amount of time the co-offender Mr Watson had spent in custody. In the course of these submissions it emerged that Mr Watson’s custody was not solely referable to the offence related to this matter. At the time of sentencing no other co-offenders have been sentenced.
Sentencing submissions
64. Counsel for the offender submitted that the sentence should reflect time served since 2 July 2019 and if any further time were to be ordered that it be suspended pursuant to s 12 of the Sentencing Act (Written submissions).
65. Counsel for the prosecution submitted that a sentence equivalent to the time the offender has spent in custody, at that time being approximately 4 ½ months, would be inadequate. Counsel for the prosecution submitted that a sentence structured to allow part of the sentence to be served in the community, either through suspension with appropriate conditions or a parole period would provide assistance and support rehabilitation (T 18.5-40).
Statutory and Other Relevant Considerations
66. In sentencing the offender, the court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.
67. The court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, and recognition of harm to the victim are important sentencing considerations.
68. Rehabilitation is also an important consideration having regard to the offender’s relative youth. I draw on the statement of French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]:
Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.
69. As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357; Elias v The Queen [2013] HCA 31; 248 CLR 483.
70. Childhood disadvantage does not “diminish with the passage of time and repeat offending” but does not have the same “(mitigatory) relevance for all purposes of punishment”: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44].
71. I note the decisions of Brooks and Hogarth referred to by the prosecution in that: “the members of this community are entitled to feel and remain safe in their homes and the Courts must play their part through the sentencing process to ensure that this right is vindicated”: Brooks at [22]. That is the case whether or not the charge is aggravated burglary or home invasion. Nevertheless, I note in that regard that the offender is charged with aggravated burglary and not home invasion as such.
72. In Lockwood at [51], I noted the following with regard to the offence of burglary:
There is a “significant range of available sentences” for burglary, though they are “generally within the range of imprisonment for from one year to two years and six months”: Fusimalohi v The Queen [2012] ACTCA 49 at [51]; Heard v The Queen [2015] ACTCA 6 at [27]-[32]; Millard v The Queen [2016] ACTCA 14 at [44]-[45].
73. The offender has pleaded guilty to the aggravated charge.
74. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. I take these principles, cases, and statutory considerations into account on sentence.
Sentence
75. It must be recognised by the Court that the offence committed against the victim has had a serious and significant impact upon him.
76. In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offences, and the subjective matters.
77. The appropriate sentence for the offence of aggravated burglary (SCCAN 2019/3838) is 20 months reduced to 18 months on account of the discount for the plea of guilty.
Orders
78. I make the following orders:
(a) I record a conviction in relation to the offence.
(b) In respect of the offence of aggravated burglary (SCCAN 2019/3838), the offender is sentenced to a term of 18 months of imprisonment, commencing on 2 July 2019 and ending on 1 January 2021.
(c) Pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT), the sentence will be suspended from 1 January 2020 upon the entry into a good behaviour order for a period of 12 months with the additional condition that:
(i) The offender be subject to a probation condition in that he be subject to the supervision of ACT Corrective Services for that period of 12 months or such lesser period as may be deemed appropriate by his supervising officer.
I certify that the preceding seventy-eight [78] numbered paragraphs are a true copy of the Reasons for Sentence her Honour Justice Loukas-Karlsson
Associate:
Date: 23 December 2019
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