R v DD (No 3)
[2016] ACTSC 320
•17 October 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v DD (No 3) |
Citation: | [2016] ACTSC 320 |
Hearing Date: | 17 October 2016 |
DecisionDate: | 17 October 2016 |
Before: | Burns J |
Decision: | See [14]–[16] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Particular Offences – property offences – aggravated burglary – theft – principle of totality term of imprisonment imposed. |
Parties: | The Queen (Crown) DD (Offender) |
Representation: | Counsel Ms S Saikal (Crown) Mr J Moffett (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service NSW/ACT (Offender) | |
File Numbers: | SCC 181 of 2015; SCC 182 of 2015 |
BURNS J:
DD, on 6 July this year I convicted you of one offence of aggravated burglary and one offence of theft which occurred in residential premises in Deakin in the Australian Capital Territory. The circumstance of aggravation, with respect to the aggravated burglary, is that you were in company with two other people at the time. Those convictions were recorded after a trial by judge alone.
I note that you were subject to a Good Behaviour Order attended upon a suspended sentence order at the time that you committed these offences.
I set out the circumstances of both the burglary and the theft in my reasons which were published on 6 July this year: see R v DD [2016] ACTSC 149.
I accept the Crown's assessment of the objective seriousness of these offences and, indeed, your counsel did not cavil with the suggestion made by the Crown in that regard. There is no evidence of the precise value of the goods that were stolen with respect to the offence of theft but clearly they were goods of some value and were also likely to have had significant sentimental value.
Subjective features
I note that you have a lengthy criminal history, including convictions for numerous burglary type offences. You have previously served periods of imprisonment.
You are 21 years old. You come from an extremely disadvantaged childhood, the effects of which no doubt, continue to affect you to the present day. Your education is limited. You commenced using drugs at an early age and you accept in the Pre-Sentence Report that your use of drugs is associated with your offending behaviour. Ordinarily the use of drugs or the need to obtain drugs is not considered mitigatory with respect to criminal offending, however, there is some latitude which is available in circumstances where drug use was commenced at an early age because an offender is not to be held as responsible for the commencement of drug use at an early age as he or she would if they had commenced drug use as an adult.
You have made limited attempts at rehabilitation. Most recently you were exited from the Solaris program in the Alexander Maconochie Centre (AMC) after eight weeks on the program due to a breach of the requirements. Subsequently you have shown no inclination to return to that program. You are currently not working or studying in the AMC. Indeed, your counsel tells me that you have never been employed.
The Pre-Sentence Report notes that you have incurred multiple disciplinary actions in the AMC during your period of recent incarceration. I note that you have only antisocial peers when you are in the community and that you have no pro-social activities that you engage in. Unfortunately there is no evidence before me of any commitment to changing either your peers or your drug abuse if you are released.
I take into account the contents of the Psychologist's Report which has been put before me and, in particular, the opinion that you suffer from mild intellectual disability.
Consideration
As your counsel has correctly conceded, because these matters proceeded to a contested hearing you are not entitled to any discount that would have been made available to you had you entered pleas of guilty.
Your youth or relative youth suggests the importance of rehabilitation in sentencing but your criminal history points to a need for deterrence and protection of the community. Your present unwillingness to address drug abuse whilst in custody and your misbehaviour in the AMC suggests that you are currently not a good prospect for rehabilitation. Without ignoring rehabilitation it is important in the present sentencing exercise to give greater weight to other sentencing considerations such as deterrence and punishment.
I note that you have currently been held in custody since 4 April 2015 but due to sentences that were imposed by Penfold J earlier this year. You were sentenced to terms of imprisonment in the Magistrates Court which effectively account for your period in custody up to 5 October this year.
The Crown submitted that any sentences which I impose should commence on 6 October this year, based upon the fact that these are separate instances of offending. I have given the matter some thought but I consider that the principle of totality suggests that some modest concurrency is appropriate with respect to the sentences which I now impose and the sentences that you have previously been serving.
Sentence
With respect to the charge of aggravated burglary, you will be sentenced to three years imprisonment commencing on 1 January this year and expiring on 31 December 2018.
With respect to the offence of theft, you will be convicted and sentenced to 12 months imprisonment commencing on 1 April 2018 and expiring on 31 May 2019.
There is therefore an aggregate sentence of three years and five months. There will be a non-parole period of 25 months commencing on 1 January 2016 and expiring on 30 April 2018.
| I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 21 November 2016 |
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