R v Crawford (No 1)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Crawford (No 1)
Citation:	[2020] ACTSC 245
Hearing Dates:	28 August, 2 September 2020
DecisionDate:	7 September 2020
Before:	Refshauge AJ
Decision:	1) Mr Crawford be convicted of the burglary at Dickson, being count 1 on the indictment. 2) For that offence, Mr Crawford be sentenced to 15 months’ imprisonment, to commence on 20 May 2020, backdated to take into account prior custody. 3) Mr Crawford be convicted of the theft of property from Dickson, being count 2 on the indictment. 4) For that offence, Mr Crawford be sentenced to 10 months’ imprisonment, to commence on 20 May 2020. 5) Mr Crawford be convicted of the burglary of the café at the University of Canberra, being count 3 on the indictment. 6) For that offence, Mr Crawford be sentenced to 15 months’ imprisonment, to commence on 20 May 2020. 7) Mr Crawford be convicted of theft from that café at the University of Canberra, being count 4 on the indictment. 8) Mr Crawford be sentenced to 10 months’ imprisonment, to commence on 20 May 2020. 9) Mr Crawford be convicted of the aggravated robbery in Canberra City, being count 5 on the indictment. 10) Mr Crawford be sentenced to four years’ imprisonment, to commence on 20 May 2020. 11) Mr Crawford be convicted of aggravated burglary at Forrest, being count 6 on the indictment. 12) Mr Crawford be sentenced to three years and four months’ imprisonment, to commence on 20 May 2020. 13) Mr Crawford be convicted of theft of property from those premises, being count 7 on the indictment. 14) Mr Crawford be sentenced to 10 months’ imprisonment, to commence on 20 May 2020. 15) Mr Crawford be convicted of aggravated burglary from premises at Hume, being count 8 on the indictment. 16) Mr Crawford be sentenced to three years and four months’ imprisonment, to commence on 20 May 2020. 17) Mr Crawford be convicted of theft from those premises, being count 9 on the indictment. 18) Mr Crawford be sentenced to 10 months’ imprisonment, to commence on 20 May 2020. 19) Mr Crawford be convicted of dishonestly driving a motor vehicle without the owner’s consent, being count 10 on the indictment. 20) Mr Crawford be sentenced to nine months’ imprisonment, to commence on 20 May 2020. 21) Mr Crawford be convicted of the burglary of property of the bar at Dickson, being count 11 on the indictment. 22) Mr Crawford be sentenced to 15 months’ imprisonment, to commence on 20 May 2020. 23) Mr Crawford be convicted of the theft from that bar, being count 12 on the indictment. 24) Mr Crawford be sentenced to 10 months’ imprisonment, to commence on 20 May 2020. 25) Mr Crawford be convicted of trespass at the property at Hackett. 26) Mr Crawford be fined $500 and be allowed 18 months to pay. 27) Mr Crawford be convicted of theft of shoes from that property. 28) Mr Crawford be sentenced to six months’ imprisonment to commence on 20 May 2020. 29) Mr Crawford be convicted of possessing an offensive weapon. 30) Mr Crawford be sentenced to 12 months’ imprisonment to commence on 20 May 2020. 31) Mr Crawford be placed on a Drug and Alcohol Treatment Order in respect of you under s 12A of the Crimes (Sentencing) Act2005 (ACT) to commence today in respect of the offence of aggravated robbery. 32) Mr Crawford’s sentence of four years be suspended for the aggravated robbery offence and all associated offences for a period of three years under s 80W of the Crimes (Sentencing) Act 2005 (ACT). 33) For the treatment and supervision part of the Drug and Alcohol Treatment Order, Mr Crawford be ordered to comply with the core conditions set out in s 80T of the Crimes (Sentencing) Act 2005 (ACT) for a period of 12 months from today and complete a treatment program as agreed with the treatment order team from time to time or as ordered by the Court. 34) On the completion of the Drug and Alcohol Treatment Order, Mr Crawford be required to sign an undertaking to comply with the offender’s good behaviour obligations for a period of three years from 6 September 2021. 35) Mr Crawford be directed to, upon his release, travel directly to the Karralika Therapeutic Community, to arrive before 1pm and to admit himself to their treatment program. 36) Mr Crawford be directed to reside at that facility for the length of the program and not to leave without leave of the Court and to comply with the rules of the program and the facility. 37) If he is discharged from or leaves the program, Mr Crawford be directed to present himself at ACT Corrective Services by 4 pm on the next business day after his departure to have himself returned to Court for reconsideration of this order. 38) Mr Crawford be directed that he complies with any direction or order of the Court about attendance at Court in person or by electronic means, and any other treatment or supervision matters from time to time.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Pre-Sentence Custody – whether part suspension is incompatible with drug and alcohol treatment order – aggravated robbery – aggravated burglary – burglary – theft – dishonestly driving a motor vehicle without consent – possessing an offensive weapon – trespass – minor theft – substantial criminal history – childhood deprivation – offending associated with drug use – poor mental health – evidence of remorse –prospects of rehabilitation – Drug and Alcohol Treatment Order made
Legislation Cited:	Crimes Act 1900 (ACT), s 381(1) Crimes (Sentencing) Act 2005 (ACT), ss 7, 12A, 35, 63, 80W, 80T, Table 46 Criminal Code 2002 (ACT), ss 308, 310(b), 311, 312(a), 318(2), 321 Family Violence Act 2016 (ACT), ss 8, 9 Magistrates Court Act 1930 (ACT), s 90B Supreme Court Act 1933 (ACT), pt 8 Public Order (Protection of Persons and Property) Act 1971 (Cth), s 11(1)
Cases Cited:	Beniamini v Stormon [2014] ACTSC 2 Blundell v The Queen [2019] ACTCA 34 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Cooper v Corvisy (No 2) [2010] ACTSC 166; 5 ACTLR 151 Fusimalohi v The Queen [2012] ACTCA 49 Grey v Pearson (1857) 10 ER 1216 Gyory v The Queen [2012] ACTCA 28 Islam v The Queen [2014] ACTCA 2 Neal v The Queen (1982) 149 CLR 305 R v Booth [2017] ACTSC 191 R Crawford (No 3) [2017] ACTSC 99 R v Eichmann [2019] ACTSC 212 R v Figura (No 2) [2019] ACTSC 222 R v Gilbert [1975] 1 WLR 1012R v Gotte [2019] ACTSC 219 R v Hawkins [2015] ACTSC 333 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Horne [2017] ACTSC 36 R v Ingram [2016] ACTSC 199 R v Judge Frederico; Ex parte Attorney-General (Vic) [1971] VR 425 R v KN [2019] ACTSC 305 R v KN [2020] ACTSC 218 R v Parker [2020] ACTSC 38 R v Massey (No 1) [2020] ACTSC 256 R v McCallum [2020] ACTSC 15 R v McMahon (No 2) [2017] ACTSC 299 R v Ngerengere (No 3) [2017] ACTSC 299 R v Slifkas [2019] ACTSC 40 R v Osenkowski (1982) 5 A Crim R 394 R v Pahl (No 2) [2017] ACTSC 155 R v Renzella [1997] 2 VR 88 R v Stacker [2020] ACTCA 34 The Queen v Verdins; The Queen v Buckley; The Queen v Vo [2007] VSCA 102; 16 VR 269 R v Williams [2016] ACTSC 389 Simonds v The Queen [2013] ACTCA 13 Walmsley v The Queen [2014] ACTCA 24; 253 A Crim R 441
Parties:	The Queen ( Crown) Peter Michael Crawford ( Accused)
Representation:	Counsel K Reardon ( Crown) B Morrisroe ( Accused)
Solicitors ACT Director of Public Prosecutions ( Crown) Boxall Legal ( Accused)
File Numbers:	SCC 261 of 2019 SCC 262 of 2019 SCC 349 of 2019 SCC 170 of 2020

REFSHAUGE AJ:

Introduction

When offenders appear before a court for sentence, there is only a limited range of sentencing options that are available to respond effectively, and when these alternatives have failed in the past to prevent continued offending, reason suggests that the court will be challenged in addressing the issues in a way that will meet the needs of the community to punish, deter and rehabilitate the offender, to vindicate any victims of crime, and to protect the community.

Now appearing before me is Peter Michael Crawford, who has been committed to this Court for sentencing for offences committed relatively soon after being sentenced for similar offences. The nature of the offences, the harm to the victims and the circumstances, including the criminal history of Mr Crawford, make this a complex and demanding sentencing exercise.

Mr Crawford has pleaded guilty to one count of aggravated robbery, three counts of aggravated burglary, two counts of burglary, five counts of theft, each of which is associated with the burglaries, and one count of dishonestly driving a motor vehicle without the owner’s consent. Further offences to which he has pleaded guilty include possessing an offensive weapon, namely a hammer, trespass and minor theft.

I had before me the following material, to none of which was there an objection, and to all of which I have had regard. For the Crown:

1) A Statement of Facts;

2) Mr Crawford’s criminal history in the Territory and New South Wales;

3) A Forensic Mental Health, Drug and Alcohol Assessment Report;

4) A Corrective Services Drug and Alcohol Assessment Report;

5) An Alcohol and Drug Service Drug and Alcohol Assessment Report;

6) Three Victim Impact Statements; and

7) Two Compensation Schedules.

For Mr Crawford:

1) A Neuropsychological Report by Dr Sally McSwiggan;

2) The Psychological Assessment Report of Mr Matt Visser;

3) A statement of employment of Mr Crawford as a painter at the Alexander Maconochie Centre;

4) A photograph of Mr Crawford at that work;

5) A letter of thanks from ACT Corrective Services Commissioner, Mr Jon Peach; and

6) A letter from Mr Crawford to the Court.

Mr Crawford also gave oral evidence before me and was cross-examined.

Counsel for the Crown and for Mr Crawford filed written submissions to which I have had regard and which I found particularly helpful.

Proceedings

Mr Crawford was arrested on 10 April 2019 and appeared in the ACT Magistrates Court later that day, charged with a burglary and associated theft offences, and dishonestly driving a motor vehicle without the owner’s consent. The proceedings were adjourned, and Mr Crawford was remanded in custody. He was, at the time, on parole, and he was also referred to the Sentence Administration Board for his parole order to be considered. It appears that when he appeared before the Board on 16 April 2019 his parole was revoked, and he was required to serve the balance of his sentence.

When the proceedings resumed on 4 June 2019, and after some adjournments, during one of which he pleaded not guilty to the then pending charges, he was charged as well with the aggravated robbery offence, the aggravated burglary offences and the balance of the theft offences. The proceedings were further adjourned.

Mr Crawford was committed for trial to this Court on 8 October 2019. He pleaded guilty on 6 February 2020, prior to the Criminal Case Conference.

On 10 June 2020 summonses on information were issued, charging Mr Crawford with the remaining offences. When he appeared before the ACT Magistrates Court on 4 August 2020, in answer to those summonses, he pleaded guilty and the charges were transferred under s 90B of the Magistrates Court Act 1930 (ACT) to be dealt with by this Court under Pt 8 to the Supreme Court Act 1933 (ACT).

For most of the period between arrest and sentence Mr Crawford has been serving a sentence of imprisonment, namely, between the cancellation of his parole on 16 April 2019 and the expiry of the sentence on 27 May 2020. That is a period of 407 days. He has been in custody on these charges for 110 days.

The Facts

In the early hours of 3 March 2019, Mr Crawford entered the home of his former partner through a balcony door. He picked up a hammer in the premises and threatened his former partner with it, demanding, “I want my smokes back”, adding, “I know you got em!”. This exchange was witnessed by his former partner’s 17-year-old son. He then picked up her Nike sneakers, worth approximately $250, dropped the hammer, and left.

He was later located by police, who found the sneakers in his possession. He admitted in an interview with police, which was recorded, that he had remained on the premises after being asked to leave, but denied taking the sneakers. These facts constituted the offences of possessing an offensive weapon, namely, the hammer, trespass and minor theft.

Early in the morning of 13 March 2019, Mr Crawford entered a real estate agency in Dickson. While inside he accessed the accounts office by damaging a door, causing damage estimated at $960. He stole electronic items worth $350. He was identified from a fingerprint he left in the premises and CCTV footage from neighbouring premises. These actions constituted the first burglary offence and associated theft.

Later, in the early hours of 24 March 2019, Mr Crawford and a co-offender forced entry into a café at the University of Canberra by forcing open a rear door. He stole a jar containing about $100 in tips and a cash register tray, worth $100, containing a float of $200. He was identified from CCTV footage from the café of the university. It also showed Mr Crawford driving a white Holden Astra. This conduct constituted the first aggravated burglary offence, the element of aggravation being that he was in company, and the associated theft.

Early in the morning of the next day, 25 March 2019, Mr Crawford rode his bike to a newsagency on Allara Street, Canberra City, where one of the owners of the shop was preparing for the day. Mr Crawford checked the door was unlocked, rode away and returned on foot with a black box cutter knife. Holding the box cutter, he demanded that the co-owner open the cash register. The co-owner, fearing for his safety, did so and handed Mr Crawford about $2,000. Mr Crawford then demanded more money, but the co‑owner stated that there was none. Mr Crawford searched him and removed his mobile phone and car keys, but dropped the phone on the way out. He entered the co‑owner’s car and drove it a very short distance, but then decamped on foot, dropping the keys on the way. Mr Crawford was identified from a DNA profile on a towel he was carrying when he entered the shop, but dropped, and CCTV footage from nearby cameras. These actions constituted the aggravated robbery offence.

Very late in the evening of 26 March 2019, Mr Crawford and the co‑offender forced open a door of a café at the Department of Finance in Forrest and scattered property across the floor of the café. He kicked the bottom of an inner door and took three tip jars and a laptop. Mr Crawford was identified from CCTV footage, from a DNA profile on a hammer at the premises that he had moved within the café, and from the handle of some wire cutters he had apparently brought onto the premises but had left behind. This conduct constituted the second aggravated burglary, the element of aggravation being that he was in company, and the associated theft.

Later in the same evening Mr Crawford and the co-offender forced entry into a business in Hume, by forcing a side door, and took a petty cash tin containing $100. He was shown forcing entry to the premises on CCTV of the building. These facts constituted the third aggravated burglary, the element of aggravation again being that he was in company, and the associated theft.

The white Holden Astra that Mr Crawford was seen driving at the University of Canberra had been taken without the owner’s consent from a residence in Curtin. It was also seen on CCTV with altered number plates being driven into the Hackett Shops car park on 4 April 2019, where the police located it the next day and identified Mr Crawford’s fingerprints on the rear-vision mirror of the vehicle. A DNA profile from Mr Crawford was also taken from the driving controls and police found a laptop stolen from the café at the Department of Defence in Forrest. These facts constituted the offence of driving a motor vehicle dishonestly without the owner’s consent.

Very early in the morning of 5 April 2019, Mr Crawford forced open the front door of a bar in Dickson, entered the premises and took a safe containing $1,150. He was shown forcing the door open and entering the premises on CCTV footage from the area. A cigarette butt from the premises was analysed to give a DNA profile consistent with a very high degree of probability that it was Mr Crawford’s. These facts constituted the second burglary and associated offence.

The Offences

Aggravated robbery is a very serious offence contrary to s 310(b) of the Criminal Code 2002 (ACT), attracting a maximum penalty of 25 years’ imprisonment or a fine of $400,000 or both.

Aggravated burglary is also a serious offence against s 312(a) of the Criminal Code, attracting a maximum penalty of 20 years’ imprisonment or a fine of $320,000 or both.

Burglary is a serious offence but not so serious an offence, contrary to s 311 of the Criminal Code, which provides for a maximum penalty of 14 years’ imprisonment or a fine of $224,000 or both.

Theft is an offence against s 308 of the Criminal Code, which provides that the maximum penalty is 10 years’ imprisonment or a fine of $160,000 or both.

Dishonestly driving a motor vehicle without the owner’s consent is an offence against s 318(2) of the Criminal Code and attracts a maximum penalty of five years’ imprisonment or a fine of $80,000 or both.

Possessing an offensive weapon is an offence against s 381(1) of the Crimes Act 1900 (ACT) and attracts a maximum penalty of one year’s imprisonment or a fine of $2,000 or both.

Minor theft is an offence against s 321 of the Criminal Code, which attracts a maximum penalty of six months’ imprisonment or a fine of $8,000 or both.

Trespass is an offence contrary to s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth), which provides a maximum penalty of a fine of $2,100.

Objective Seriousness

As noted above, aggravated robbery is a very serious offence. In this case, the weapon was a box cutter form of knife. The courts have always regarded knives as a weapon, the use of which is to be discouraged strongly and which magnifies the seriousness of the offence. It is capable of killing or inflicting serious injury. Further, there was a real threat of violence.

I do not consider that in this case there was much evidence of planning, though Mr Crawford did have a towel with him which he used in a fairly inept way to hide his face. I do not think that the earlier testing of the door, even if it constituted a reconnoitre of the premises, added much to any planning, but rather was evidence of some opportunistic approach.

The circumstances were of a fairly typical case of aggravated robbery, namely, of a vulnerable victim, being a lone shopkeeper in the early hours of the morning. A relatively small amount was taken: see R v Henry [1999] NSWCCA 111; 46 NSWLR 346.

The Crown suggested that Mr Crawford took the co-owner’s phone, which would have caused him inconvenience. At the hearing it was recognised that that was a submission made in error. It was, in fact, dropped on the way out. Indeed, the co-owner called his wife after Mr Crawford left and this could have been on that phone, though there may have been a landline on the premises. It was certainly not the most serious of such offences.

Burglary, especially in the aggravated form of the offence, is also serious, but not so serious. Relevant factors include the nature of the premises, whether victims were present at the time, the offender’s motivation, damage to the premises entered, if not otherwise charged, and the level of premeditation or planning: see R v Pahl (No 2) [2017] ACTSC 155 at [15]; R v Horne [2017] ACTSC 36 at [18]-[22]. Other matters include the level of inconvenience caused and whether items of particular sentimental or similar value are taken: see R v Hawkins [2015] ACTSC 333 at [48].) The value of the property stolen is also relevant: see R v McMahon (No 2) [2017] ACTSC 299 at [52].

Aggravated burglary is a more serious form of burglary, although many of the matters that relate to burglary also apply to aggravated burglary. Aggravated burglary, however, includes circumstances of aggravation. In this case, that was the presence of a further offender. That presence has the capacity to increase the risk to any people on the premises, though that does not apply in this case. It also often means that the offender has somewhat more capacity and commitment to the criminality that is to be committed within any premises.

In this case, all the premises were commercial premises, not residential premises which would render the offence generally somewhat more serious: see Simonds v The Queen [2013] ACTCA 13 at [54]. No victims were present or were expected to be present on the premises. Damage was caused in all of the five burglaries, though not of any considerable amount. The amounts stolen were not substantial, though there is a certain meanness in the taking of the tips jars, which would be extremely unlikely to be covered by insurance and would therefore be irrecoverable by the staff for whom they were clearly intended.

The thefts were not particularly serious versions of the offence. The amounts stolen were not considerable but, as noted above, there was a certain meanness in some of the items stolen. The electronic equipment may have caused some inconvenience to replace, though there was no particular evidence of this, and the identity of the items stolen does not immediately suggest it.

The offence of dishonestly driving a motor vehicle without consent is an offence which has various aspects. Not only does it involve the deprivation of a car from the owner or user which, especially in Canberra, can cause considerable inconvenience, and often significant loss, as it is not infrequently one of the largest purchases of its owner after a residential property, it also can be used to facilitate the commission of other offences because of its mobility and its value as a means of transport of goods: see R v Booth [2017] ACTSC 191 at [11].

It is also relevant to consider the period during which Mr Crawford had the vehicle in his possession. It is, as often happens, not possible to say that Mr Crawford was the person who originally took the vehicle on 18 March 2019, but he certainly had use of it on and between 24 March 2019 and 4 April 2019. The laptop found in it, and its sighting at the University of Canberra, shows that it was used in the commission of at least those burglaries: see R v Eichmann [2019] ACTSC 212 at [23]. Finally, I note that Mr Crawford was the driver and not a passenger. This is seen as a more serious version of the offence: see R v KN [2019] ACTSC 305 at [4].

As to the offences of trespass, possessing an offensive weapon, and minor theft, they were all part of the one event. It involved Mr Crawford entering his former partner’s home, a place where she can expect to feel safe. They had been in an intimate relationship, but in the Statement of Facts this was described as “previously”. As such, Mr Crawford was a family member of his former partner, the victim, within the meaning of s 9 of the Family Violence Act 2016 (ACT).

As it constituted threatening behaviour, the incident was one of family violence under s 8 of that Act. It is clear that the fact that the offending was a matter of family violence is a matter of aggravation of the offence. This is especially so when the offence was committed, as in this case, in the presence of children: see Beniamini v Stormon [2014] ACTSC 2 at [97]. The intrusion was unacceptable and effectively a home invasion. In the light of their relationship, Mr Crawford’s ex-partner may not have believed that he would have been such a threat as he was, but there was no evidence on the terms on which they parted.

The threat with the hammer was not the subject of a charge, but its possession in the circumstances was clearly threatening, which made the possession more serious. There is no evidence that the theft of the sneakers caused any particular inconvenience or worse, and it was a relatively lesser form of the offence.

Subjective Circumstances

Mr Crawford is a single Aboriginal man of 37 years of age. He is one of seven children who were born to various relationships of his parents. He was born and raised in this Territory. He had a difficult childhood with a complicated relationship with his mother, who had a significant problem with alcohol. Indeed, he was removed from her care due to her alcohol issues. He has, however, a distinctly improved relationship with his mother now. He has had some, but minimal, relationship with his father, who was largely absent and who has now relocated to Victoria.

When he was removed by the state from his mother’s care at age three, as were his other siblings, his grandmother became his carer. He obviously became close to her and he suffered grief and loss when she died in 2007. He had little or no cultural education and exhibited behavioural issues at school, being diagnosed with Attention Deficit Hyperactivity Disorder. He was prescribed Ritalin and continued to take it until he was about 16 or 17 years old, when he described having grown out of the disorder. His issues at school, however, led to him being expelled when he was in Year 7. It was clearly a disordered and disadvantaged childhood.

He commenced using illicit drugs and alcohol at an early age and mixed with an older crowd, which obviously led him into criminal activity, [redacted for legal reasons]. Mr Crawford drank alcohol heavily until he contracted pancreatitis at age 15 after which he reduced his consumption. He has currently no interest in further consuming alcohol.

Mr Crawford used mainly heroin and methamphetamine. He was using between 2 and 3 grams of heroin a day by the time he was 15, as it helped him when he found life unbearable. He started using methamphetamine when he was 17 years old as he was unable to access heroin. He used a few points daily, always with others. He has continued to use it until about 15 months ago, when he was incarcerated. He also continued to use heroin when available until recently, and acknowledged that he had to rely on crime to support his addiction.

Mr Crawford has experienced some suicidal ideation, especially in the early 2000s, which he suggested had occurred in a custodial setting, but I found this difficult to match with his criminal record. He later had some further contact with mental health authorities, when he exhibited symptoms of sleep disturbances, low mood, suicidal ideation, and psychosis from trauma, especially childhood trauma, and an assault he suffered in 2002. These matters appear to have been resolved with counselling. He also had a history of self-harm but not for the past two years.

Mr Crawford has had very limited employment, especially because of his frequent imprisonment, but he has been employed as a painter in the Alexander Maconochie Centre. Indeed, the Commissioner of ACT Corrective Services wrote to him earlier this year thanking him for the hard work he contributed to some accommodation in the centre, noting that he was “generally impressed by the skills and effort that have gone into this project”.

He has had two significant partnerships, as well as some casual relationships. The first significant relationship was when he was 16 years old and lasted for about four years. The second, more recent relationship, though it has been an off-and-on-again relationship, lasted for about six to nine years. He is said to be currently not involved with that partner, but this is unclear. Mr Crawford has a relationship with her two children, however, and he regards them as his children. Unfortunately, one is currently in the Alexander Maconochie Centre, but he sees her regularly.

One matter of significance was raised in earlier proceedings, but I have had further evidence about it. In those proceedings, Elkaim J noted an expert report tendered to his Honour, and stated that he took into account the likelihood of Mr Crawford being affected by his mother’s alcohol consumption during pregnancy, despite the fact that a specific diagnosis of Foetal Alcohol Syndrome Disorder (FASD) had not been made: see R v Crawford (No 3) [2017] ACTSC 99. Mr Matt Visser, clinical psychological, was the author of that report, dated 1 August 2017. He interviewed Mr Crawford for 90 minutes, administered testing, and made a formal diagnosis of Neurobehavioural Disorder Associated with Prenatal Alcohol Exposure (ND-PAE). This disorder, Mr Visser stated, is, “a condition with similar functional impact to FASD”. The effect of ND-PAE was expressed in that expert report that:

Mr Crawford has a lower ability to see the consequences of his actions, does not place the same weight on those consequences, and does not learn as quickly as others from punishment.

I had the same report, which I have read carefully. I also had, however, a more recent report from consultant neuropsychologist, Dr Sally McSwiggan, dated 6 August 2020, and which I have also read carefully. Dr McSwiggan read Mr Visser’s report and interviewed Mr Crawford for 120 minutes. She also had a copy of the Case Statement for these charges, Mr Crawford’s criminal history and a Pre‑Sentence Report from November 2019. She made a formal diagnosis of substance use, Neurodevelopmental Disorder and probably Foetal Alcohol Syndrome Disorder. She found that Mr Crawford’s adaptive skills do not suggest that he operates at a level requiring formal support and that he does not meet the diagnostic criteria for a (global) mild intellectual disability, though it is reasonable to suggest that he has sustained the teratogenic effects of prenatal alcohol exposure.

I do not see this diagnosis as inconsistent with Mr Visser’s description of the symptoms or the consequences, but rather a firming up from Dr McSwiggan’s standardised neurological testing, which her expertise and qualifications enable her to administer, and to find a probability of Foetal Alcohol Syndrome Disorder.

In the absence of oral evidence, it is not easy for me to see the difference between the two diagnoses. Both included neurodevelopmental impairment or disorder, and the teratogenic effects of prenatal alcohol exposure, leading to deficits in Mr Crawford’s executive function in the context of behavioural control difficulties in childhood, which were exacerbated by impoverished education and substance abuse.

Dr McSwiggan commented on the effect of Mr Crawford’s condition on his mental capacity at the time of the offending and his ability, at present, to exercise appropriate judgment, and to make calm and rational choices or think clearly. Dr McSwiggan’s unchallenged opinion was:

Mr Crawford has deficits in executive functions that are important in emotional regulation, self-awareness, social judgement, planning and impulse control. There was clear impairment of judgement and impulse control in Mr Crawford’s short period of repeat offending, likely exacerbated by his substance use. Further, his ability to exercise appropriate judgement was likely impaired on the basis he considers information on a superficial level due to a limited ability to hold it in [his] mind in order to weigh it up for the purposes of reasoning. Poor impulse controls means quick decisions, without considered reasoning, [which] are likely his ‘default’. His ability to make calm and rational choices or to think clearly was likely more limited compared to the population given his cognitive deficits. Substance intoxication would compound his existing limitations to make considered and reasoned decisions.

I accept Dr McSwiggan’s diagnosis and her description of the effect of Mr Crawford’s condition on him and his conduct in committing the offences. Mr Crawford also has a significant criminal history in both this Territory and New South Wales. [Redacted for legal reasons].

He was also dealt with for five offences of dishonestly dealing with motor vehicles and three drug offences. There were also other offences, mainly street offences, recorded. Altogether it was a very unfortunate record and it is a pity that intervention could not have occurred earlier to prevent the almost inevitable escalation.

[Redacted for legal reasons], Mr Crawford has continued that pattern with convictions on findings of guilt for 10 aggravated burglary offences, 33 burglary offences, 22 theft offences, 26 minor theft offences and 17 offences of dishonestly taking or driving motor vehicles. Worryingly, he has started to commit some offences of violence, including an aggravated robbery and a threat to kill offence. He also has some driving offences and street offences, and one offence of drug possession.

In all, it is a record that both denies him leniency and portrays a pattern of behaviour which is not only consistent with his drug addiction, but which it would be very significantly in the community’s interest to curb, or preferably eliminate.

Victim Impact Statements

The Crown tendered three Victim Impact Statements. One from the owner of the café at the University of Canberra, where Mr Crawford committed an aggravated robbery and theft, and which was read out to the court by the Crown Prosecutor, one from the owner of the Dickson bar where he committed a burglary and theft, and a third one from the victim of the aggravated robbery in Canberra City.

The first victim explained the upset that the offences caused, as he described the shop as “an extension of my home”, which underlines the violation the offence causes and the feeling of a lack of safety. He said it caused stress as well as loss, but also cost. He fairly expressed gratitude that Mr Crawford “had not [made] too much mess and damage”.

The second Victim Impact Statement also fairly stated that the impacts were mainly economic loss, namely $300 to replace the inner door, $2,200 from the cash in the safe box taken and $180.45 for the cost of the box.

The third Victim Impact Statement showed that the victim had suffered quite significant psychological effects and disturbed sleep, requiring him to take medication for depressive episodes which worsened after the incident, and have made him afraid to open his business early in the morning. He is fearful for his wife, who is required to close the shop earlier at night now as a result, and he has to collect her because she becomes anxious after dark. These actions have damaged his business also and caused economic effects.

I also had Compensation Schedules. That from the real estate agency claimed $628 plus GST for repair or replacement of damaged doors, and that from the bar in Dickson claimed the cost of the safe box, although the other costs were specified in the Victim Impact Statement.

Mr Crawford has read each of the Victim Impact Statements. In a letter to me, tendered without objection, he apologised to “all those that I have hurt and their families”. He said in evidence before me that they had had a great impact on him when he read them. He said that he did not think that his offending would have had such an effect. He was not cross-examined on this evidence.

Sentencing Practice

Clearly the most serious offence is the aggravated robbery offence. Both Ms K Reardon, counsel for the Crown, and Ms B Morrisroe, counsel for Mr Crawford, in their helpful submissions, addressed this offence and both addressed the influence of the seminal decision of R v Henry on the sentence for aggravated robbery.

The decision has been considered persuasive in this jurisdiction: see Hall v The Queen; Barker v The Queen [2017] ACTCA 16 at [49], and R v Nicholas; R v Palmer [2019] ACTCA 36 at [71]-[72]. R v Henry suggests that for an offence with six specified characteristics, a sentence of four to five years’ imprisonment should be imposed. Those characteristics, briefly stated, are:

1.a young offender with no or little criminal history;
2.a weapon, like a knife;
3.limited degree of planning;
4.victim in a vulnerable position such as a storekeeper;
5.small amount taken; and
6.a plea of guilty, the significance of which is limited by a strong Crown case.

In this case, Mr Crawford is not a young offender and has a significant criminal history. On the other hand, I do not accept that there was any real degree of planning. It might be said that he reconnoitred the premises, but he then proceeded to commit the offence virtually immediately. He hardly sought out a special weapon, and though he brought a towel in an inadequate attempt to hide his identity, it seems to me more impulsive than planned.

Further, in R v Henry, it was noted that while drug addiction is not a matter of mitigation, it may be relevant to throw light on matters such as the impulsivity of the offender. Further, there was no suggestion that there were other purposes for the robbery than to feed Mr Crawford’s drug habit. The state of mind and capacity of Mr Crawford, a matter which is clearly raised above and addressed below, is also a matter that the drug addiction may affect. Similarly, the fact that Mr Crawford became addicted at a very young age, when he had a limited ability to exercise appropriate judgement, is acknowledged in that decision as relevant.

As to the burglary and aggravated burglary offences, it was held by Burns and Lander JJ in Fusimalohi v The Queen [2012] ACTCA 49 at [15] that:

…there is no single, correct sentence for offences of burglary and aggravated burglary. There will always be a range of sentences that may legitimately be imposed for any particular offence of this type, taking into account the characteristics of the offence and the offender.

Later, I pointed out in the same case that, in the case of the burglary of residential premises, a range of one year to two years and six months’ imprisonment is generally within the range in this Territory. This decision was expressly followed in Simonds v The Queen at [19] and R v Stacker [2020] ACTCA 34 at [21]. In both cases, a sentence well under that range was held not to be manifestly inadequate.

Consistently with the decision in Fusimalohi v The Queen, the ACT Sentencing Database shows that in this Court, approximately two-thirds of sentences for aggravated robbery are sentences of imprisonment, and they range from 12 months to 12 years. The majority are between 25 and 26 months.

For burglary, the statistics show a similar preponderance of sentences of imprisonment, but which range from 6 months to 6 years, and with well over half of those in the range of 7 to 18 months. Similarly, for the offence of theft in the Supreme Court, the majority of such offences attracted a prison sentence, with over two-thirds of offenders being sentenced to terms from 2 to 12 months.

Many of these offences, that is, aggravated burglary and theft, are dealt with in the Magistrates Court. Unsurprisingly, the sentences in that Court are generally less severe, with more suspended sentences and, of course, lesser periods of imprisonment, in part because of the less serious version of the offences likely to be heard in that Court, and because there is a statutory limit in the maximum term of imprisonment that can be imposed.

As to the offence of dishonestly driving a motor vehicle without the owner’s consent, I recently considered the sentencing practice for that offence in this Court in R v Massey (No 1) [2020] ACTSC 256, and I rely on what I said there. Clearly, a significant comparable sentence for these offences is that which was imposed by Elkaim J in 2017 on Mr Crawford himself for similar offences, as reported in R vCrawford (No 3).

The offences there included 1 offence of aggravated robbery, 8 counts of aggravated burglary, 3 counts of burglary, 10 counts of theft, 1 count of dishonestly riding in a motor vehicle without the owner’s consent and 1 count of damaging property. Except for the number of offences, this is a similar type of criminal activity. There were pleas of guilty to all offences, except the offence of aggravated robbery, which was more serious in that case as there were three robbers, the weapons were a machete and a metal baseball bat, and the number of the employees of the club entered were three, including an employee so terrified that she could not, as demanded, correctly enter the code into the combination mechanism of the safe.

Mr Crawford was sentenced to a total sentence of four years and two months, with a non-parole period of three years. Apart from the issue of the diagnosis of his mental condition and the fact of this further offending, there is no material change to his subjective circumstances. Of course, the repetition of offences, especially only a couple of years after being sentenced for similar offences, is more serious. I do note, however, that there was no Crown appeal against the sentence imposed by Elkaim J, either against its structure or its length.

Plea of Guilty

As noted above at [10], Mr Crawford pleaded guilty in this Court on 6 February 2020, having been committed to this Court on 8 October 2019. Transferred counts were laid as a result of negotiations at the Criminal Case Conferencing. They were laid to replace a primary charge and he pleaded guilty on the second appearance in the Magistrates Court.

Nevertheless, there had been some successful negotiations in the Magistrates Court which resulted in a reduction of the number of counts preferred against Mr Crawford and there were pleas of guilty, though ultimately entered in this Court, to all committed charges, avoiding a trial and a strain on and anxiety to witnesses: see Blundell v The Queen [2019] ACTCA 34 at [10]-[14]. Clearly, the pleas of guilty to the transfer charges were entered at a very early stage.

Remorse

Remorse is always an important factor in sentencing: see Neal v The Queen (1982) 149 CLR 305 at 314. This is shown in part by the plea of guilty of Mr Crawford, though moderated by the strength of the Crown case. In this case, I also had express evidence of Mr Crawford’s remorse, both in the letter he wrote, which was admitted as an exhibit, and in the oral evidence he gave, which was not challenged in cross‑examination. I accept that Mr Crawford is genuinely remorseful. As to the meaning of remorse, I rely on my comments in Fusimalohi v The Queen.

Consideration

It is important, in approaching the sentencing exercise, to have regard to the purposes of sentencing, as mandated in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). In general, all of those purposes play a part, but in some cases one or more have a more significant role to play. Some occasionally have a lesser role to play. As is clear from the reading of the Victim Impact Statements, recognising the harm done to the victim is important. In this case, general deterrence plays a part because of the fact of the number of cases of the offences — of aggravated burglary, burglary and theft — that come before the courts in this Territory.

In the light of Mr Crawford’s mental condition, and in the light of the failure of previous sentences to deter him, specific deterrence may play a somewhat lesser role, though it is not irrelevant. Mr Crawford gave evidence, both in his letter and oral evidence, of a desire to become and remain drug free. I am satisfied that he is genuine in this desire, while recognising that his mental condition will make it challenging.

This suggests to me that Mr Crawford may be at a point in time where he has a real chance of reform. Anecdotal experience suggests that drug addicts do grow up to an age in their late 30s and early 40s where their lifestyle becomes so burdensome that they seek a way out. This has been suggested to be a crossroads: see R v Osenkowski (1982) 5 A Crim R 394. In R v Henry at [273], it was accepted that this can justify some special consideration. This is supported by the difference in the way in which Mr Crawford engaged with Mr Visser in 2017, as contrasted with the way he engaged with Dr McSwiggan in 2020, the latter suggesting that he is now making a genuine effort to address the issues underlying his offending behaviour.

In cross-examination, Mr Crawford accepted that he had been engaged in the Solaris Therapeutic Community at the Alexander Maconochie Centre about four to five times, the first probably being in 2010. He said that he had “learned a lot of stuff”, including relapse prevention. He admitted that he reoffended about four or five months after being released back into the community after having completed a program in that community. This was submitted by the Crown to raise a real question as to whether Mr Crawford was suitable for a treatment order. It seems to me that there are reasons not to accept this submission.

In the first place, Mr Crawford’s mental condition means that it is inevitable that a number of attempts at rehabilitation will be necessary before it is successful. Secondly, while I have every confidence in the Solaris Therapeutic Community, it is a program in a custodial setting rather than in the community. That particular environment does not provide the same support and supervision which a treatment order will enable to be provided. There are a number of discrete issues that also require consideration.

Childhood Deprivation

In earlier sentencing, Elkaim J referred to Mr Crawford’s background, which his Honour noted “squarely raises the considerations stated by the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571”: see R v Crawford (No 3) at [7]. The New South Wales Court of Appeal in R v Henry identified that the age of introduction to drug use, where the offender’s capacity to consent or where their mental or intellectual capacity was impaired, as the diagnosis given to Mr Crawford clearly shows, is applicable here and should be taken into account.

In the same way, the High Court accepted in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 that childhood deprivation could explain subsequent behaviour such that the offender’s moral culpability “may be substantially reduced”: at [44]. The principles of the application of this principle were recently helpfully summarised by Loukas-Karlsson J in R v KN [2020] ACTSC 218, at [98], as follows:

In summary, a history of disadvantage and deprivation may be a mitigating factor on sentence: see Bugmy [41]-[44]. What is clear from Bugmy, and subsequent case law, is that:
(a) the effects of disadvantage and deprivation do not diminish with the passage of time: Bugmy at [44];
(b) the Bugmy principles do not diminish in relevance where an offender has an existing criminal record: Bugmy at [44] and R v Irwin [2019] NSWCCA 133 at [3] (Irwin); and
(c) the application of the Bugmy principles is not discretionary: Irwin at [3].

One of the ways in which Elkaim J took this consideration into account was in making most of the sentences for the offences concurrent: see R vCrawford (No 3) at [42]. Despite what was acknowledged as an ultimate sentence shorter than what traditional approaches might suggest, that sentence was not the subject of a Crown appeal and, with the greatest of respect, seems to me an entirely appropriate approach. I will adopt that approach also.

Mental Health

The diagnosis of Neurodevelopmental Disorder, probably foetal alcohol spectrum disorder, and the consequences of such a mental disorder, is also relevant to sentencing. It has always been the case that mental health is relevant to sentencing. Dr McSwiggan makes it clear that there is a clear link between Mr Crawford’s mental condition and his offending.

The seminal decision of The Queen v Verdins; The Queen v Buckley; The Queen v Vo [2007] VSCA 102; 16 VR 269 at [32] has set out the six ways in which impaired mental functioning can be relevant to sentencing as follows:

1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2.The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3.Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4.Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6.Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.

This decision has been followed first in this Territory in Cooper v Corvisy (No 2) [2010] ACTSC 166; 5 ACTLR 151, by the Court of Appeal in cases such as Walmsley v The Queen [2014] ACTCA 24; 253 A Crim R 441 at [38] and Gyory v The Queen [2012] ACTCA 28 at [12], and then, more recently, in R v Stacker at [169]. In my view, Mr Crawford’s mental condition does reduce his moral culpability. Further, I note that Mr Visser described the effect of Mr Crawford’s symptoms as including that, “he does not learn as quickly as others from punishment”. This suggests that if there is a more appropriate disposition, then specific deterrence and punishment may not play so prominent a part in the sentencing.

Pre-Sentence Custody

Mr Crawford has now spent a considerable period of time in custody since his arrest, some 407 days while serving the sentence reimposed when the Intensive Correction Order was cancelled, and 110 days on remand for these offences. Such custody should be taken into account: see R v Judge Frederico; Ex parte Attorney-General (Vic) [1971] VR 425 at 427, 430-1 and R v Renzella [1997] 2 VR 88 at 97.) It could not, however, at common law, be done by backdating the sentence: R v Gilbert [1975] 1 WLR 1012 at 197.

Now courts can rely on s 63 of the Crimes (Sentencing) Act and direct that the sentence be taken to have started on a day before the sentence was imposed. This fiction is not mandatory, but a device that a court may, in its discretion, use, that provides clarity and transparency to show exactly what has been taken into account.

Further, if the court so chooses to backdate the sentence, then s 63(2) of the Crimes (Sentencing) Act requires mandatorily that the period of backdating must include “any period during which the offender has already been held in custody in relation to the offence”, with some limited exceptions not presently relevant.

If, of course, the court backdates the sentence, the period of pre-sentence custody may be adequate to meet the requirements for the custodial part of a sentence for the particular offence. That may result in the court suspending a backdated sentence so that the offender is released on the day of sentence, even though, except notionally by the direction of backdating, the person has only spent custodial time as a remand prisoner and not as a sentenced prisoner.

Nevertheless, the effect is that the court has imposed a partially suspended sentence. The problem that this causes is that under ss 12A(2) and 80W(1) of the Crimes (Sentencing) Act, the court making a treatment order must fully suspend the sentence of imprisonment that it must also impose. This creates a dilemma that the court cannot backdate a sentence to take account of pre‑sentence custody and make a treatment order on the day of sentence, for it will have partially suspended the sentence, which is inconsistent with the legislation.

This is a similar problem that the Legislature created with the similar requirements of only wholly suspended sentences when ordering an intensive corrections order. This was pointed out by Penfold J in R v Ingram [2016] ACTSC 199, and myself in R v Ngerengere (No 3) [2017] ACTSC 299. The provision prevents a court from partially suspending a sentence of imprisonment that was backdated to take account of pre‑sentence custody. This is particularly odd since an offender likely to be suitable for an intensive corrections order, or indeed, I add, for a treatment order, is likely to have been refused bail.

To deny such a person that disposition, or alternatively, to ignore the pre-sentence custody, would not only be unfair, but it would not be in the community’s interests. I called for reform in R v Ngerengere (No 3), and again in R v Williams [2016] ACTSC 389 at [122] more recently, but none has been forthcoming. Indeed, more problematic is that the problem has been repeated with the treatment order regime, where an offender is only eligible for such an order if he or she is to be sentenced to imprisonment for a period of one to four years. Again, this involves an offender who is likely to have been remanded in custody.

I note that recent decisions in this Court have imposed an intensive corrections order where the sentence of imprisonment has been backdated: see R v Slifkas [2019] ACTSC 40 and R v Figura (No 2) [2019] ACTSC 222. It appears from the published reasons for these decisions that there was no submission made about this position, as there were no discussions of it in the published reasons. I have not investigated whether any further similar decisions have been made but it seems to me that they may risk the validity of the orders.

Pre-sentence custody on remand has a similarity to other matters where pre‑sentence restrictions may be taken into account. One matter that may be relevant is periods of immigration detention: see Islam v The Queen [2014] ACTCA 2 at [22], [31]. Similarly, periods of residential rehabilitation with the conditions that are imposed, or strict conditions of bail, may also be taken into account in sentencing, though rarely by backdating the sentence, but rather by moderating the period to be served.

This has some similarity to the taking into account of a plea of guilty which reduces the sentence. This may be done under s 35 of the Crimes (Sentencing) Act. In doing so, however, the court commonly specifies the discount applicable or the sentence that would have been imposed, as a matter of clarity and transparency. These matters are not usually dealt with by backdating a sentence, but simply by reducing the sentence, to take account of the circumstance. In this case, Mr Crawford has spent 110 days in pre-sentence custody and I need to resolve the issue, if I find that the length of the sentence makes him eligible for a treatment order, especially as all the assessment reports have recommended that he is suitable.

There are, perhaps, three possibilities. Where there are multiple offences, as here, then there is an obvious solution to impose a sentence that is the same length as the pre-sentence custody, on one or more of those sentences, as in R v Gotte [2019] ACTSC 219. I applied that approach in R vMassey (No 1). It must, of course, not extend beyond the date of the actual sentencing of the offender, or the offender would be subject to another sentencing order, contrary to s 12A(1)(c) of the Sentencing Act.

The issue with that also, however, is that if there is an associated offence, which there will be if there are multiple offences, a problem could arise. An “associated offence”, under s 12A of the Sentencing Act, is an eligible offence to which the offender pleads guilty, and for which he or she is sentenced to imprisonment, and is dealt with in the same sentencing proceedings as the primary offence: s 12A(9) of the Sentencing Act.

A restriction is that the total period of imprisonment for the primary offence and all the associated offences to which the order relates may not extend beyond four years. If the offence for which the pre-sentence custodial period is four years or would, if aggravated with a pre-sentence custodial period, amount to more than four years, then this option will not be able to be used. It may be that the sentence which imposes the period of pre‑sentence custody does not need to have the treatment order extended to it as it is, by the date of sentence, effectively spent, so the issue may not arise.

It also may be that the sentences for the two offences, the primary offence, and the offence for which the pre‑sentence custody period constitutes, are not made at the same hearing, as happened in R v Massey (No 1). This means that the latter is not then an associated offence. It may be that the other multiple offences for which the offender has to be sentenced can have the treatment order extended to them without breaching any statutory criteria. This seems to me quite complicated, and sounds as though it would be regarded as a device rather than a proper exercise of the sentencing discretion.

This Court has considered another option. In R v McCallum [2020] ACTSC 15 at [81], Murrell CJ gave consideration to the issue and held that s 12A of the Sentencing Act precluded backdating. Her Honour then simply held, at [82], that the sentence would “take account of the significant amount of prison time”, which was the pre‑sentence custody. Her Honour noted that the sentence imposed did take that time into account, but that “their terms do not reflect it”. This is clearly an approach that is consistent with the common law, as noted above.

Subsequently, however, Walker AJ had occasion to consider the issue in R v Parker [2020] ACTSC 38 at [25]-[33]. Her Honour was concerned with the potential unfairness flowing from the way in which pre-sentence custody would be dealt with. Her Honour noted that not to take it into account would be unfair to the offender. I note that it may also not be in accordance with the common law. Her Honour then considered that taking the pre-sentence custody into account in the common law way would have some unfair consequences. It would skew sentencing practice because such sentences would be shorter, but not often comparable to those for offenders who have not been subject to pre‑sentence custody, even though otherwise entirely comparable. That seems to me to be correct, but not a major problem, as the issue of comparability must not be limited to mere statistics, but should be considered in more detail. Hence, for example, the frequent distinction between sentences following pleas of guilty and those following pleas of not guilty but findings of guilt, are disaggregated.

Perhaps more significant is that such an approach may cause problems with criteria for a treatment order by the length of sentence. The offender, whose sentence would be 12 months, may thereby be denied entry to a treatment order, if the pre-sentence custody is taken into account by reducing the length of the sentence in the common law way. Similarly, an offender, where the pre-sentence custody reduces his length of imprisonment to below four years, would then have access to a treatment order, while a co-offender, who did not spend any or as much time in pre-sentence custody, may then find that the same intended sentence of imprisonment, that is, of the offender before reduction for the period of pre-sentence custody, would be longer than four years, thus rendering the co-offender ineligible for a treatment order, even though both would otherwise be equally eligible on the basis of the offender and offending.

As a result, her Honour held that the meaning of “fully suspended”, could be interpreted as “fully suspended from the date of imposition”: R v Parker at [33]. I was concerned about this construction because it seemed to fly in the face of a clear legislative provision where there was perhaps unfairness, but no absurdity, to the level required for such an apparent rewriting of the legislation: Grey v Pearson (1857) 10 ER 1216 at 1234.

Having considered the matter further, however, I have had occasion to consider s 63(3)(c) of the Sentencing Act. It refers to the backdating of a sentence not requiring reference to the days of pre-sentence custody where there is “a sentence of imprisonment that is fully suspended”. It is difficult to see how a sentence, which is backdated to take account of the time that has already been spent in custody, can be fully suspended. Even the function of backdating cannot convert a time in custody to a suspended period which would be served entirely in the community instead.

Thus, there would be an absurdity, unless the paragraph meant such a sentence be “fully suspended” from not the backdated date, but from the date of imposition. I am far from certain that this completely resolves all the difficulties in the meaning of s 63(3)(c), and I add s 63(3)(d), which is, in my view, far from clear, but at least gives some meaning to it in cases such as this. The Explanatory Statement for the Crimes (Sentencing) Bill 2005 (ACT) provides no clarity.

In that event, it seems to me that the same meaning should be given to “fully suspends a sentence of imprisonment” in ss 12A(2) and 80W(1) of the Sentencing Act, which is relevantly in the same terms. Accordingly, I will construe the terms in the same way as in R v Parker, though not without some considerable hesitation. I urge the Legislature to address this issue and make appropriate amendments to obtain some clarity on this issue and hope that, enjoined by Walker AJ, it will achieve some amendment. It may also be helpful if the Legislature addressed the same issue in the slightly different context of intensive corrections orders.

Multiple Offences

There are many offences to be considered here. I have already indicated that they should be substantially concurrent. One reason is that ordinarily, a sentence imposed for a theft that is committed in conjunction with a burglary or aggravated burglary will be concurrent with the sentence for the burglary or aggravated burglary because they are both of the same enterprise, and also because they contain a considerable overlapping of elements. Further, the issue of totality, especially in the context of issues such as the effect of Mr Crawford’s childhood deprivation and his mental condition, suggests that this approach will best meet the need to respect the principle of totality without detracting from the need to reflect the criminality constituted by the offending.

His Honour then spoke directly to Mr Crawford:

Mr Crawford. Please stand.

For the charge of aggravated robbery, I propose to sentence you to four years’ imprisonment. Had you not pleaded guilty, I would have sentenced you to four years and eight months’ imprisonment.

For each charge of aggravated burglary, I propose to sentence you to three years and four months’ imprisonment. Had you not pleaded guilty, I would have sentenced you to four years’ imprisonment.

For each charge of burglary, I propose to sentence you to 15 months’ imprisonment. Had you not pleaded guilty, I would have sentenced you to 18 months’ imprisonment.

For each charge of theft, I propose to sentence you to 10 months’ imprisonment. Had you not pleaded guilty, I would have sentenced you to 12 months’ imprisonment.

For the charge of dishonestly driving a motor vehicle without the owner’s consent, I sentence you to nine months’ imprisonment. Had you not pleaded guilty, I would have sentenced you to 12 months’ imprisonment.

I make the following orders:

1) I convict you of the burglary at Dickson, being count 1 on the indictment. I sentence you to 15 months’ imprisonment, to commence on 20 May 2020 to take into account prior custody.

2) I convict you of the theft of property from Dickson, being count 2 on the indictment. I sentence you to 10 months’ imprisonment, to commence on 20 May 2020.

3) I convict you of the burglary of the café at the University of Canberra, being count 3 on the indictment. I sentence you to 15 months’ imprisonment, to commence on 20 May 2020.

4) I convict you for theft from that café at the University of Canberra, being count 4 on the indictment. I sentence you to 10 months’ imprisonment, to commence on 20 May 2020.

5) I convict you of aggravated robbery in Canberra City, being count 5 on the indictment. I sentence you to four years’ imprisonment, to commence on 20 May 2020.

6) I convict you of aggravated burglary at Forrest, being count 6 on the indictment. I sentence you to three years and four months’ imprisonment, to commence on 20 May 2020.

7) I convict you of theft of property from those premises, being count 7 on the indictment. I sentence you to 10 months’ imprisonment, to commence on 20 May 2020.

8) I convict you of aggravated burglary from premises at Hume, being count 8 on the indictment. I sentence you to three years and four months’ imprisonment, to commence on 20 May 2020.

9) I convict you of theft from those premises, being count 9 on the indictment. I sentence you to 10 months’ imprisonment, to commence on 20 May 2020.

10) I convict you of dishonestly driving a motor vehicle without the owner’s consent, being count 10 on the indictment. I sentence you to nine months’ imprisonment, to commence on 20 May 2020.

11) I convict you of the burglary of property of the bar at Dickson, being count 11 on the indictment. I sentence you to 15 months’ imprisonment, to commence on 20 May 2020.

12) I convict you of theft from that bar, being count 12 on the indictment. I sentence you to 10 months’ imprisonment, to commence on 20 May 2020.

13) I convict you of trespass at the property at Hackett. I fine you $500 and allow you 18 months to pay.

14) I convict you of theft of shoes from that property. I sentence you to six months’ imprisonment to commence on 20 May 2020. Had you not pleaded guilty, I would have sentenced you to eight months’ imprisonment.

15) I convict you of possessing an offensive weapon. I sentence you to 12 months’ imprisonment to commence on 20 May 2020. Had you not pleaded guilty, I would have sentenced you to 16 months’ imprisonment.

You may be seated.

I note that this is a sentence of four years’ imprisonment on your plea of guilty. I also note that Mr Crawford is not subject to any other sentencing order. Accordingly, he is eligible for a Drug and Alcohol Treatment Order (a treatment order).

I have read and considered a Pre-Sentence Report from ACT Corrective Services dated 18 November 2019, a Forensic Mental Health and Drug and Alcohol Sentencing List Assessment Report dated 14 July 2020, a Drug and Alcohol Treatment Assessment Report from ACT Corrective Services dated 3 August 2020, and a Drug and Alcohol Sentencing List Suitability Assessment Report from Canberra Health Services dated 29 July 2020.

I have carefully considered the recommendations made in them, especially the recommendation that Mr Crawford is suitable for a treatment order. I am satisfied that Mr Crawford is dependent on illicit drugs and that his dependency substantially contributed to the commission of the aggravated robbery. I am also satisfied that Mr Crawford will live in the ACT for the next twelve months. I have not identified any indicators of unsuitability for a treatment order, as set out in Table 46 of the Sentencing Act.

His Honour then spoke directly to Mr Crawford:

Mr Crawford, please stand again. I make the following additional orders:

(1) I make a Drug and Alcohol Treatment Order in respect of you under s 12A of the Crimes (Sentencing) Act2005 (ACT) to commence today in respect of the offence of aggravated robbery.

(2) I suspend the sentence of four years for the aggravated robbery offence and all associated offences that I have imposed for a period of three years under s 80W of the Crimes (Sentencing) Act 2005 (ACT).

(3) For the treatment and supervision part of the Drug and Alcohol Treatment Order, I order that you comply with the core conditions set out in s 80T of the Crimes (Sentencing) Act 2005 (ACT) for a period of 12 months from today and complete a treatment program as agreed with the treatment order team from time to time or as ordered by the Court.

(4) On the completion of the Drug and Alcohol Treatment Order, I require you to sign an undertaking to comply with the offender’s good behaviour obligations for a period of three years from 6 September 2021.

(5) I direct that on your release you travel directly to the Karralika Therapeutic Community, to arrive before 1pm and to admit yourself to their treatment program.

(6) I direct you to reside at that facility for the length of the program and not to leave without leave of the Court and to comply with the rules of the program and the facility.

(7) I direct that if you are discharged from or leave the program, you present yourself at ACT Corrective Services by 4pm on the next business day after your departure to have yourself returned to Court for reconsideration of this order.

(8) I direct that you comply with any direction or order of the Court about attendance at Court in person or by electronic means, and any other treatment or supervision matters from time to time.

I note that there are further charges outstanding. I note that it is intended that they be discontinued in due course, and insofar as Mr Crawford is currently on bail, I dispense with that bail for all of those matters.

Thank you. Mr Crawford, you will see a lot of me in the next 12 months. So I am not going to take a lot of time to explain. No doubt your very competent solicitor will explain to you what has happened, but in essence, I have said that, having regard to your situation, even though these are serious offences and deserving of punishment, and lengthy punishment in gaol, the circumstances are such that you should have an opportunity to reform.

I am satisfied that you are committed to that and I will give you that opportunity. But you must understand, it is not going to be easy. Just because you are walking out of court now and not going back into Alexander Maconochie Centre, you will still be under restrictions at the residential rehabilitation centre Karralika. And then you will still be under restrictions at the end of that program from me and from this Court.

We will support you, the Court will support you if you are committed. If you can get a handle on these things and not be a blot on the community, not being a parasite on the community, not interfering with people’s wellbeing and their property and their safety.

So that is what we are aiming for. This is probably a really important opportunity because if you do not take it and you do not succeed, it is unlikely that it will come again. There are no guarantees in life. But it is unlikely that it will come again and you will end up in the Alexander Maconochie Centre or worse. If you want to live there then mess this up, but if you try hard we will help you through that.

So I wish you good luck and I hope that the community will be better served by me taking this action for you, and that you, yourself, will be better served and be able to be a useful member of the community, and be a father to those whom you regard as your children.

[Mr Crawford said]: Yes. Thank you.

I certify that the preceding one hundred and thirty-one [131] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge.

Associate: Samuel Xiang

Date: 9 December 2020

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Amendments

21 July 2021	1. In the third sentence of paragraph [109], omit the last word “backdated” and replace with “suspended”.
30 January 2023	2. In paragraph [124], sub-paragraph (3), replace “s80T” with “s80Y”.

[2020] ACTSC 245

7 September 2020