R v Daly
[2017] ACTSC 105
•22 March 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Daly |
Citation: | [2017] ACTSC 105 |
Hearing Dates: | 27 February 2017, 22 March 2017 |
DecisionDate: | 22 March 2017 |
Before: | Murrell CJ |
Decision: | Sentenced to a good behaviour order for two years and six months. Reparation order made in the sum of $7058.05. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Property offence – Theft – Theft of neighbour’s motorbike – Alcohol abuse – Bail conditions aimed at addressing alcohol abuse – Capacity to comply with strict conditions |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 13, 19 Criminal Code 2002 (ACT) s 308 |
Parties: | The Queen (Crown) Thomas Michael Daly (Offender) |
Representation: | Counsel Mr T Buckingham (Crown) Mr R Livingston (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service NSW/ACT (Offender) | |
File Numbers: | SCC 56 of 2016 |
MURRELL CJ:
On 7 December 2016, a jury found the offender guilty of theft on 1 November 2015.
Theft is an offence against s 308 of the Criminal Code 2002 (ACT). It carries a maximum penalty of 10 years’ imprisonment.
Facts
On the evening of Saturday, 31 October 2015, the offender was at home with his partner and friends, celebrating his partner’s birthday. He drank a large quantity of alcohol. He awoke early the following morning and went to the home of neighbours who lived a few minutes’ walk away. The neighbours were away for the weekend. The offender arrived at their residence at about 6:55 am. He used tools to take a side gate from its hinges, and then removed a 2009 custom Harley Davidson motorbike from the yard. The bike was of considerable financial value. Mr McGhie, the victim, said that in 2009 he paid $36,000 for the bike. Thereafter, he effected considerable improvements, personalising it. He kept it in “showroom condition”. It was of great sentimental value. He had dreamt of owning such an item since childhood.
Having removed the bike, the offender wheeled it to a nearby grassy area and was pushing it towards his residence when (having been alerted by a witness) police approached him. He abandoned the bike. By that stage, the bike had been significantly damaged. The cost of repairs to the vehicle was $7058.05.
The victim gave evidence that he felt that his bike had been violated. He also felt a loss of a sense of personal security at his residence. At the time of the offence, there was a home security system, but it proved ineffective to prevent the offence. The victim has upgraded the system, but is still wary about leaving his home for an extended period.
Objective seriousness
The offence is of significant objective seriousness. Although the offender did not enter the victim’s home, he entered the victim’s backyard and stole a bike that was not only of significant financial value, but also of great sentimental value. The bike was recovered but the damage sustained to the bike was very upsetting to the victim, who has not yet been able to afford the repairs. It is very distasteful that the offender stole from a neighbour.
Subjective circumstances
The offender is 31 years old.
The offender’s adult criminal record is largely the result of alcohol abuse. There are three convictions for driving with alcohol in his blood, in 2007, 2013 and 2014. There are two offences of driving while his licence was suspended. They are of no great relevance to the present proceedings. As an adult, he has not been convicted of a property offence.
In August 2014, the offender was placed on an 18 month good behaviour order for drink driving, which included a requirement that he undertake community service work. He failed to perform the work. On 11 December 2015, he was resentenced to a further good behaviour order with community service work. In December 2016, breach action was commenced for failing to comply with the community service condition. The proceedings were adjourned to enable him to undertake work. He has completed most of the outstanding community service work. However, his level of compliance has not been particularly good.
The offender lives with his de facto partner of four years, the couple’s two young children (aged nine months and two years), and his partner’s 17-year-old daughter from a previous relationship. He has four children of previous relationships (aged between five and 12 years) whom he no longer sees because of family tensions.
The offender’s upbringing was fractured. After his parents separated, he resided with his mother and stepfather until they too separated. Thereafter, from 12 years of age, he resided with his stepfather, although his stepfather is said to have been a gambler who mentally abused the offender. He has little contact with his natural father, who is reportedly a drug addict. He has six half siblings from his parents’ subsequent relationships. He has little, if any, contact with them,
In Year 8, the offender was expelled from school for misbehaviour. Later, he completed Year 11, undertook a butchering apprenticeship, and worked as a butcher for 10 to 12 years. During the last few years he has held several positions as a butcher and undertaken occasional work in the building industry. Otherwise, he has been unemployed and has been assisting his partner to care for their children.
The offender has an entrenched addiction to alcohol. As a teenager, he began to binge drink. Since 18 years of age, he has drunk to excess on a daily basis. He informed the author of the pre-sentence report that he now consumes up to 30 cans of beer a day. He realises that alcohol abuse threatens his physical health. In 2014 he attended counselling with Directions ACT, without long-term success. More recently, he made an appointment to attend Directions ACT, but did not attend because he consumed alcohol en route. He does not want to enter residential rehabilitation because he does not want to be separated from his partner and children.
The offender accepts that he is an alcoholic. However, he has not fully confronted the challenges posed by alcoholism. He still hopes to learn to drink in moderation rather than completely forego alcohol. I consider this to be a futile aspiration.
The pre-sentence report states that the offender requires intensive intervention and may also require medical assistance to withdraw from alcohol. It states that it would be beneficial for him to undertake a residential program to address alcohol consumption. The report does not explain what would be involved in such a program.
The offender has been assessed as unsuitable for community service work due to unaddressed alcohol abuse and repeated failures to comply with previous orders requiring community service work. That said, as noted earlier, he is making a concerted attempt to finalise an outstanding community service order.
The best outcome for everybody would be for the offender to cease using alcohol. If he did that, it is very likely he would not reoffend since all his adult offending is related to alcohol abuse. It would also enable him to obtain and hold down a job. He is fortunate that he has a very useful qualification and is an experienced butcher. I was informed by the offender that he can earn very good money as a butcher. If he was able to obtain and maintain such employment, the offender would be able to make reparation to the victim relatively quickly.
Appropriate sentence
There must be significant punishment and general and personal deterrence associated with the sentence that I impose.
Initial Considerations
When the matter came before me on 27 February 2017, I considered imposing a good behaviour order. I noted that any good behaviour order would need to have very demanding conditions that addressed the fundamental problem of alcohol abuse. I was unsure whether the imposition of a good behaviour order with stringent conditions would be a futile exercise because successful completion would depend entirely upon the offender's capacity and inclination to address his alcohol addiction.
Consequently, I indicated that, if the offender showed a capacity to comply with conditions designed to curtail his alcohol problem, I would impose a good behaviour order of about two years and six months’ duration. The offender has previously received good behaviour orders of 18 months’ duration.
To give the offender an opportunity to demonstrate a capacity to comply, I adjourned the proceedings for approximately one month and granted the offender bail on strict conditions. The conditions required that the offender:
(a)not purchase or consume any alcohol;
(b)not keep any alcohol in his house;
(c)not enter any licensed hotel or club;
(d)attend Alcoholics Anonymous one or two times a week, depending on his employment situation;
(e)submit to any requests, directions or orders by ACT Corrective Services in relation to pursuing alcohol rehabilitation;
(f)submit to any home visits (announced or unannounced) by ACT Corrective Services and any drug and alcohol testing requested;
(g)make an appointment with Directions ACT for counselling and to keep that, and any subsequent, appointments that were suggested;
(h)make all reasonable attempts to obtain and maintain employment; and
(i)provide the Court with evidence of compliance with the conditions on the next occasion when the matter came before the Court.
I requested an update pre-sentence report addressing the offender’s compliance for the next occasion.
Proceedings on 22 March 2017
When the matter came before me on 22 March 2017, the offender presented evidence of compliance with his bail conditions. The offender tendered a letter from the proprietor of an artisanal butchery, confirming that the offender had commenced a trial for the role of Head Butcher. The offender also provided evidence of participation in a course concerning asbestos awareness. He completed the course with a view to obtaining work on the ACT light rail project. Although the offender is no longer pursuing such work, the course participation demonstrated his commitment to finding employment. The offender’s efforts to obtain employment were noted in the updated pre-sentence report, which was positive about the offender’s general compliance.
A letter from Directions ACT confirmed that the offender had attended three sessions of counselling aimed at addressing his substance use. The letter indicated that the offender’s participation was positive and that he appeared committed to treatment. It stated that Directions ACT were willing to continue to provide support.
The offender said that he had abstained from alcohol in accordance with his bail conditions. He said that he had attended three Alcoholics Anonymous (AA) meetings. However, there were difficulties in obtaining evidence of his attendance. The offender’s partner told the author of the updated pre-sentence report that she had taken him to some meetings. The offender also tendered email correspondence with AA’s central service office, although it did not confirm attendance. Considering this evidence and evidence that the offender had complied with the other conditions, I accepted that he had attended AA meetings.
Sentence
As the offender had demonstrated a capacity to comply with strict bail conditions, on 22 March 2017, I convicted and sentenced the offender as foreshadowed on 27 February 2017 (see [20] above).
I made a reparation order pursuant to s 19 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) requiring the offender to make reparation to Mr Casey Oliver McGhie by way of payment of the sum of $7058.05. The offender is to pay at least $500 each month into Court to meet that reparation order, with the first payment to be made on or before Monday, 24 April 2017.
Pursuant to s 13 of the Sentencing Act, I imposed a good behaviour order requiring the offender to sign an undertaking to comply with good behaviour obligations for two years and six months from 22 March 2017. In addition to the standard conditions, the good behaviour order is subject to the conditions that the offender:
(a)Accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General or her delegate for a minimum 12 month period, or as long as the supervising officer considers necessary.
(b)Not consume any alcohol and not keep any alcohol at his place of residence for a period of 12 months.
(c)Make all reasonable efforts to obtain and maintain employment and to provide evidence of compliance with this condition to ACT Corrective Services when requested to do so.
(d)Continue to engage with Directions ACT for as long as Directions ACT recommends and in the manner that Directions ACT recommends.
(e)To comply with the reparation order imposed on 22 March 2017 by making payment of $7058.05 within 12 months of 22 March 2017.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell Associate: Date: |
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