R v Crawford
[2022] ACTSC 87
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Crawford |
Citation: | [2022] ACTSC 87 |
Hearing Date: | 22 April 2022 |
DecisionDate: | 22 April 2022 |
Before: | Elkaim J |
Decision: | See [35] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – theft – where offender had an awful upbringing |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 33 Criminal Code 2002 (ACT) s 308, 312 |
Cases Cited: | Hoskins v R [2021] NSWCCA 169 R v Crawford (No 1) [2020] ACTSC 245 R v Elphick [2021] ACTSC 9 |
Parties: | The Queen ( Crown) P M Crawford ( Offender) |
Representation: | Counsel E Priestly ( Crown) J Cooper ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Aboriginal Legal Service ( Offender) | |
File Number(s): | SCC 297 of 2021 |
Elkaim J
On 8 December 2021, the offender pleaded guilty to the offence of aggravated burglary in contravention of s 312 of the Criminal Code 2002 (ACT). The maximum penalty is 20 years’ imprisonment and/or a fine of $320,000. The offender also pleaded guilty to the offence of theft in contravention of s 308 of the Criminal Code 2002 (ACT). The maximum penalty is 10 years’ imprisonment and/or a fine of $160,000.
It is important to immediately note that each of the above two offences is made up of ‘rolled up’ charges.
There is an Agreed Statement of Facts. The following is a summary. On 15 September 2020 the offender went into a supermarket intending to commit theft. He was with another person. Together they stole items valued at $75,108.53.
The offender actually visited the supermarket twice, on the second occasion they removed a safe which contained $70,000 in cash. This explains the large amount of items stolen.
Considering the amount stolen, the offences being on a commercial premises and the degree of planning suggested by the return to the supermarket, I assess the objective seriousness of the offending at a little below medium.
There is no Victim Impact Statement but a reparation order is sought in the amount of $4,508.
The offender was born in 1983. Despite being only 38 years of age he has accumulated a very significant criminal record, some of which reflects offences in New South Wales and Queensland. He has spent a good deal of time in prison and does not seem to have much respect for supervision orders when he is living in the community.
I sentenced the offender in 2017 for 24 offences including aggravated robbery, burglary and aggravated burglary. The sentence was four years and two months’ imprisonment with a non-parole period of three years (R v Crawford (No 3) [2017] ACTSC 99). On 7 September 2020 Refshauge AJ sentenced the offender to 4 years’ imprisonment with a non-parole period of two years. The offences included aggravated robbery, aggravated burglaries and theft (R v Crawford (No 1) [2020] ACTSC 245).
The offence before me today was committed while the offender was supposed to be engaging in rehabilitation under the stewardship of Refshauge AJ in the Drug and Alcohol Court. Clearly the efforts at rehabilitation were ineffective.
The offender is an Indigenous man who was born and raised in the ACT. He was taken away from his mother when he was young because of alcohol abuse problems. He went to live with his grandmother. His siblings were placed in care. Despite limited contact with his father he considers their relationship to be supportive. He has a good relationship with his mother.
The offender has been in a de facto relationship for about two and a half years. His partner has five children who he regards as stepchildren.
The offender left school after Year 7 and soon became involved in criminal activities. He has not done much work because he has spent so much time either in prison or using drugs. He does not seem to be able to disassociate himself from other persons who are bad influences upon him. He told the authors of the pre-sentence report that “he does not know what to do with his time when he is out in the community”.
The offender began drinking when he was young, although this seems to have tapered off after about two years. He has used a lot of illicit drugs and still does so when he is in the community. He knows that his use of drugs has blunted his capacity to work and be better educated.
Although he has completed some rehabilitation programs he does not seem to have ever been successful in getting away from drugs.
The pre-sentence report says that Mr Crawford has a diagnosis of Dissocial Personality Disorder and Dysthymia. He also reported that he suffers from Fetal Alcohol Syndrome because of his mother’s drinking and he believes that he has suffered some brain damage.
Not surprisingly there is a high chance of re-offending.
There is a report from Mr Matt Visser, a clinical psychologist dated 1 August 2017. I referred to it in my earlier reasons at [11]. There is a more recent report, dated 6 August 2020, from a neuropsychologist, Dr McSwiggan. The report was prepared for the sentencing proceedings before Refshauge AJ. A diagnosis of substance use abuse and Neurodevelopmental Disorder (probable Fetal Alcohol Spectrum Disorder) was reached. The offender told Dr McSwiggan that “his substance use has been so long term he is uncertain if he will, or could ever be, substance free”.
This sentiment is repeated in a letter that the offender wrote to the Court in which he apologises for his behaviour and looks forward to a better future.
It is very difficult to sentence a man like Mr Crawford. He has had an awful upbringing, he has significant mental health issues, he has been a criminal from a young age and normal modes of punishment, like imprisonment, have not succeeded in keeping him away from criminal activity.
There is a serious danger, as pointed out by Mr Cooper, of him becoming institutionalised.
Added to the overall tragedy is the fact that the offender is not without skills. I have been shown photographs of two paintings, done in prison and which are for sale through a detainee artwork virtual gallery. To the extent that I can gauge, they are very good paintings. If the offender could continue his artwork outside of prison I am sure that would go a long way towards giving him a respectable occupation and income.
Sending him back to prison seems almost pointless, but he must be punished for his criminal actions and there is no viable alternative to imprisonment. His long record says the prison sentence should be longer than might otherwise be the case. His background says the sentence might be shorter than ‘normal’.
In Hoskins v R [2021] NSWCCA 169, Basten JA said, from [1]:
1.I agree with Brereton JA that the sentencing judge, in an otherwise thorough and careful judgment, failed to apply the principles articulated by the High Court in Bugmy v The Queen. Although those principles can apply generally to offenders brought up in circumstances of social disadvantage, they have particular application and are commonly invoked in relation to members of Indigenous communities. That is because, as has been documented by numerous inquiries and research studies, those communities continue to exhibit the dislocation resulting from foreign invasion, disruption of culture and minority racial status. However, they are also the principal victims of alcohol driven violence of the kind exhibited by the applicant, Douglas Hoskins. To downplay the principle of protection of the community, identified as a purpose of sentencing in s 3A(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW), is to diminish both the appearance and perhaps the fact of equal protection of those Indigenous communities. On the other hand, it must be recognised that incarceration has not proved an effective deterrent of anti-social behaviour in these circumstances; its deterrent effect being compromised by lack of insight which is itself a common feature of the circumstances which lessen moral culpability.
2.These conflicting considerations place a sentencing judge in a difficult position; their acknowledgement provides little practical assistance in determining an appropriate sentence. The solution to the social problems does not lie in the criminal courts, whose best course may be to err on the side of leniency. In this case, I agree with the orders proposed by Brereton JA.
Subject to variation between the facts of individual cases, Murrell CJ said in R v Elphick [2021] ACTSC 9 that aggravated burglary normally attracts a sentence of between 18 months’ and 42 months’ imprisonment, while the range in theft is usually about 6 to 18 months’ imprisonment.
The offender is currently in prison as a result of the sentence imposed by Refshauge AJ. His sentence will end on 12 February 2025. The non-parole period ends on 12 February 2023.
In addition to the matters I have set out above, it is also necessary for me to consider ss 6, 7 and 33 of the Crimes (Sentencing) Act 2005 (ACT). There must of course be an element of general deterrence. Personal deterrence to the offender is unlikely to be of any effect.
There are probably some prospects of rehabilitation, but absent dealing with his drug problem, these prospects are unlikely to ever emerge. It will be important for the parole authorities to bear in mind that parole should not be granted unless there is some form of rehabilitation structure in place upon his release.
The pleas of guilty seem to have been made at a fairly early stage, but after a brief of evidence was prepared. I think a discount of 20 per cent is appropriate.
There are two questions of accumulation and concurrency. Firstly there is the question of concurrency with part of the existing sentence. Secondly, whether there should be any accumulation as between the two offences which I am dealing with.
Clearly the principle of totality would be contravened if I were to start the current sentences at the end of the existing sentences. There would be a crushing sentence. There must be some degree of concurrency.
As to the theft and the burglary, I think there must be some accumulation. Although the offences were part of the same criminal conduct, the extent of the theft requires that there be some specific recognition.
For the offence of aggravated burglary I think the appropriate sentence is 24 months’ imprisonment which is reduced to 19 months after the discount (with some rounding off). For the theft I think the appropriate sentence is 15 months’ imprisonment which is reduced to 12 months after the discount. I think there should be an accumulation of three months.
There is therefore a total of 22 months’ imprisonment. As noted above the current sentence will end on 12 February 2025. I think the new sentences should commence 12 months earlier, on 12 February 2024.
As to the reparation order, although the offender has the possibility of some income from his paintings, I do not see any realistic prospect of him paying the amount back. While I sympathise with the victim, I think an order would be pointless and possibly even detrimental to the small chance of rehabilitation that exists.
I make the following orders:
(i)For the offence of aggravated burglary the offender is sentenced to 19 months’ imprisonment to commence on 12 February 2024 and end on 11 September 2025.
(ii)For the offence of theft the offender is sentenced to 12 months’ imprisonment to commence on 12 May 2024 and end on 11 May 2025.
(iii)I set a nonparole period of two years and six months from today to end on 21 October 2024.
(iv)I recommend to the parole authorities that the offender not be released other than into a regime of suitable accommodation and rehabilitation opportunities, if possible under the National Disability Insurance Scheme.
| I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: |
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