R v Dimitrov
[2018] ACTSC 367
•14 November 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Dimitrov |
Citation: | [2018] ACTSC 367 |
Hearing Dates: | 23 August, 18, 21 September, 13 November 2018 |
DecisionDate: | 14 November 2018 |
Before: | Mossop J |
Decision: | See [31] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – two counts of aggravated burglary in company and with a hammer – assault occasioning actual bodily harm – trespass – having an offensive weapon with intent to use the weapon to commit an offence involving actual or threatened violence – resisting a public official – significant criminal history – guilty pleas – youth relative to co-offender taken into account – difficult background – significant brain injury – limited education – history of illicit substance abuse – custodial sentence served by way of intensive correction |
Legislation Cited: | Crimes Act 1900 (ACT), ss 24, 381(1) Criminal Code2002 (ACT), ss 312, 361(1) Public Order (Protection of Persons and Property) Act 1971 (Cth), s 11 |
Parties: | The Queen (Crown) Alexander Dimitrov (Offender) |
Representation: | Counsel M Fernandez (Crown) J Lawton (23 August, 18, 21 September 2018) and S Howell (13 November 2018) (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (23 August, 18, 21 September 2018) and McKenna Taylor (13 November 2018) (Offender) | |
File Numbers: | SCC 181 of 2018 SCC 182 of 2018 |
MOSSOP J:
Introduction
The offender has pleaded guilty to two counts of aggravated burglary contrary to s 312 of the Criminal Code2002 (ACT). The maximum penalty is 20 years imprisonment or a fine of $300,000 or both. He has also pleaded guilty to assault occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT). The maximum penalty is five years imprisonment.
The offender has also pleaded guilty to a number of summary offences which have been transferred as related charges, they are:
(a)Trespass contrary to s 11 of the Public Order (Protection of Persons and Property) Act 1971 (Cth) for which the maximum penalty is a fine of $1500.
(b)Having an offensive weapon in circumstances which indicated intent to use the weapon to commit an offence involving actual or threatened violence contrary to s 381(1) of the Crimes Act the maximum penalty for which is one year imprisonment, a fine of $2000 or both.
(c)Resisting a public official contrary to s 361(1) of the Criminal Code. The maximum penalty is two years imprisonment, a fine of $30,000 or both.
Pleas of guilty to the indictable offences were entered in the Magistrates Court on the seventh mention. I treat these pleas as early ones.
Facts
At about 4:30am on 5 March 2018, the offender and Nathan Reid entered the Gungahlin Marketplace shopping centre (‘the marketplace’) and broke into two shops. They were Creamery and Co Coffee Shop and the Boost Juice shop. Both shops had considerable damage to their security screen doors. The two cash registers in the Boost Juice shop had been interfered with. Police were called and attended the scene. Police saw the offender and Mr Reid leaving the marketplace and tried to apprehend them. Their presence in the shopping centre is identified in the Agreed Statement of Facts as constituting the trespass. In a manner not identified in the Agreed Statement of Facts the attempt to apprehend the offender gave rise to the offence of resisting a public official. The offender was armed with a hammer and Mr Reid with a crowbar. The offender’s possession of the hammer is identified in the Agreed Statement of Facts as constituting the offence of possess offensive weapon with intent. The offender and Mr Reid ran off in different directions. Police pursued them and during the pursuit the offender threw his hammer at First Constable Troy Fouquet striking him on the leg. This gives rise to the offence of assault occasioning actual bodily harm. The offender and Mr Reid were arrested shortly thereafter. The offender said that he was under the influence of methamphetamine.
Objective seriousness
The two aggravated burglaries are in the low to mid range of objective seriousness. They involve commercial premises. They occurred at a time when it would not be expected that other persons were present (although, in fact, at least one other person was present). Some damage was done to obtain access to the premises. In the Boost Juice shop one of the cash registers was lying on the floor and the other appeared to have been tampered with. The Agreed Statement of Facts does not record any amount of money as having been taken. There is only evidence of the minimal level of premeditation that would be required for such burglaries.
The Agreed Statement of Facts does not disclose the actual bodily harm suffered by the police officer. Pain itself does not constitute actual bodily harm. The plea of guilty accepts that there was some. I must therefore treat there as being only nominal actual bodily harm. However, throwing a hammer at somebody is very clearly an act which is potentially very dangerous. I treat this offence as being in the lower end of the mid range of objective seriousness.
Because of the skeletal manner in which the offences of trespass, resisting a public official and possessing an offensive weapon are described in the Agreed Statement of Facts, they must be assessed as being at the low end of objective seriousness.
Subjective circumstances
The personal circumstances of the offender are disclosed by the terms of a pre-sentence report as well as medicolegal reports prepared for personal injury proceedings by Mr Thomas Sutton, a psychologist, and Dr Patricia Jungfer, a psychiatrist. There is also additional material in the intensive correction order assessments prepared for Magistrates Court proceedings and for present proceedings.
The offender is 23 years old. He reported that his childhood had been affected by witnessing family violence, his parents’ illicit substance use and spending much of his time in foster care. He regularly absconded from foster care placements to reside with his aunt. He claimed that he was sexually abused during a foster care placement. Both his parents had a history of substance abuse. He has limited contact with his father. His relationship with his mother has improved significantly since she has addressed her drug use issues. He has been in an on-again off-again relationship for a period of five years. He is not sure whether it is on or off at the moment. The intensive corrections order assessment prepared for the proceedings before the magistrate seemed to indicate that it was off again rather than on again.
He has limited education. He completed Year 8 while in custody at a juvenile detention centre.
He worked for a period of three years prior to a motor vehicle accident in 2013. His employment has been limited since that time. The motor vehicle accident was a high‑speed accident in which he suffered serious traumatic head injuries. He suffered bleeding and swelling within his brain which required a bifrontal decompressive craniotomy. He also suffered a variety of other injuries including an injury to his optic nerve leading him to be blind in the right eye. He has partial vision in his left eye. Following surgery, on discharge from hospital he experienced seizures, behavioural issues, suicidal ideation, an overdose of drugs and nightmares.
Prior to being remanded in custody, he was working on a casual basis as a car detailer and intended to return to that work upon his return to the community. He also received payments of the Disability Support Pension. He has an antisocial peer group. He has a history of heroin and methamphetamine use. In November 2017 he completed a residential rehabilitation program at Canberra Recovery Services. He spent almost a year in this or a related program. He claimed to have been abstinent from illicit substances except on the day of the current offences when he used methamphetamine.
As a result of the car accident in 2013 he has an acquired brain injury, several complex medical conditions and an impairment of his sight.
The report of Mr Sutton which is dated 2016 indicates that he has gross impairments of mental functioning in relation to memory for meaningful verbal information, visual memory, organisation and perception of spatial relationships, inhibitory mechanisms as well as spelling and reading literacy.
Dr Jungfer records a diagnosis of:
10.1. Extremely severe traumatic brain injury.
10.2. Neurocognitive disorder following traumatic brain injury.
10.3. Polysubstance abuse disorder in remission.
10.4. Antisocial personality disorder.
10.5. Adjustment disorder with mixed emotional features.
10.6. Attention deficit disorder.
In 2016 he was the subject of a very serious assault by an enforcer of a drug supplier. This involved him having his hand struck with a sledgehammer to the extent to which the bones on his hand were protruding.
The author of the pre-sentence report assessed him as being at a high risk of reoffending due to his criminal history, illicit substance use, physical and mental health, lack of prosocial supports and lack of consistent employment.
Criminal history
The offender’s criminal history as an adult commences in 2014 with convictions for being an unlicensed driver and driving with methamphetamine in his oral fluid. In May 2014 he committed the offence of damaging property and was given a good behaviour order. At the time he also failed to appear after a bail undertaking. In July 2014 he committed the offence of driving while disqualified and was given a good behaviour order. He was also convicted of driving an unregistered and uninsured vehicle. In August 2014 he committed the offence of possessing a drug of dependence, namely, methamphetamine and was sentenced to the rising of the court. In October 2014 he committed a further offence of damaging property and was sentenced to one month imprisonment in 2015, his first sentence of imprisonment. He was also convicted of taking motor vehicle without consent and given a suspended sentence of one month imprisonment. He breached the good behaviour order associated with that and was resentenced to a period of two months imprisonment. He was also convicted of driving while disqualified and given a sentence of one month imprisonment. In January 2015 he committed a further offence of driving while disqualified and was given a three-month sentence of imprisonment which was suspended. However, he breached the good behaviour order and was sentenced to three months imprisonment. In July 2015 he committed the offence of making off without payment and was fined. He also drove while disqualified and rode or drove a motor vehicle without consent. For each offence he was given a three-month suspended sentence of imprisonment. He also committed the offence of unlawful possession of stolen property and was sentenced to the rising court.
On 18 May 2018, he was given an intensive correction order in relation to an aggregate sentence of 11 months of imprisonment for offences committed in 2016. The individual sentences were three months for drive while disqualified, 10 months for aggravated, furious, reckless or dangerous driving and three months for drive while disqualified. He was also given fines in relation to driving unregistered, driving an uninsured vehicle, driving with methamphetamine in his oral fluid and possessing an offensive weapon.
Time in custody
Between 5 March 2018 and 18 May 2018, the offender spent 74 days in custody attributable to the present offences. From 18 May 2018 until today, he has spent a further 180 days in custody, although during that period he has been the subject of the intensive correction order imposed on 18 May 2018. The reason that he has remained in custody is that he has been refused bail on these and other charges.
Consideration
The offender comes from a difficult background. He has limited education. He has a significant criminal history. He has suffered a significant head injury which clearly does not make it any easier for him to lead a law-abiding life. I take into account his youth relative to his co-offender and the fact that his brain injury is likely to have affected his decision-making capacity and hence culpability for the offending conduct. It also makes him a less suitable vehicle for general deterrence. He has made significant efforts at drug rehabilitation. Those efforts have not been sufficient to stop him relapsing into methamphetamine use. He has been assessed as being at a high risk of reoffending because of a variety of adverse factors. However, he is still young and there remains a hope, if not an expectation, that he will, with age and further efforts to avoid relapse into drug use, be able to avoid offending conduct in the future. Clearly, if he continues to commit serious offences such as burglary he will end up spending very substantial periods of time in custody.
Having regard to the nature of the offending conduct on the aggravated robbery and assault occasioning actual bodily harm charges, a custodial sentence is the only appropriate sentence. The transferred charges are in a different category.
On the counts of aggravated burglary, each will have a sentence of imprisonment of 12 months reduced from 16 months on account of the pleas of guilty. On the assault occasioning actual bodily harm charge, I will impose a sentence of three months imprisonment reduced from four months on account of the plea of guilty.
The aggravated burglary charges are closely related both in time and space. They are separate charges because within the shopping centre the individual tenancies are demarcated and, in some cases, have separate doors or screens. Because of the closely associated nature of the offending, the sentences on the two counts of aggravated burglary will be concurrent except as to two months. The assault, while temporally closely related, increases the criminality of the overall course of conduct. It will be concurrent as to one month with the other sentences. This gives a total sentence of imprisonment of 16 months imprisonment.
The other transferred charges can be dealt with by way of fine.
The trespass relates to their presence at the shopping centre but is very closely related to the aggravated burglaries. The offender will be fined the amount of $400 and allowed no time to pay.
The offence of having an offensive weapon with intent is also closely associated with the aggravated burglary because the hammer is a tool designed to facilitate breaking into premises. The actual use of the item is the subject of the assault charge. The offender will be fined the amount of $200 and allowed no time to pay.
The charge of resisting the public official is not described in sufficient detail in the Agreed Statement of Facts to permit it being dealt with other than on the basis of some nominal resistance. The offender will be fined $100 and permitted no time to pay.
The submission of both parties was that it was open in the circumstances to make an intensive correction order in circumstances where the offender was currently serving a sentence of imprisonment by way of an intensive correction order. He has been assessed as suitable for an intensive correction order, although ACT Corrective Services “holds concerns about his ability to adhere to the conditions of an ICO [intensive correction order]”. I consider, having regard to his personal circumstances, that it is appropriate to order that his sentence of imprisonment be served by way of intensive correction. A number of additional conditions were proposed in the intensive correction assessment. One of those suggested was that he not “associate with his co-offender or any antisocial peers”. No submissions were made by the parties relating to such a condition. That fact and the undefined content of the proposed condition makes it one which is not appropriate to include.
The offender has, in fact, been in custody as a result of, inter alia, the present offences during a period when he would otherwise have been entitled to be serving an intensive correction order in the community. He has also spent time in custody which is agreed to be solely attributable to these offences. Clearly, the service of a sentence of imprisonment, the subject of an intensive correction order, by full-time custody is a more onerous form of service of a sentence of imprisonment. The existing sentences the subject of an intensive correction order end on 17 April 2019. In the ordinary course it would be appropriate that the present sentences commence on 18 April 2019. I will take into account the time spent in custody prior to the making of the intensive correction order in May 2018 by backdating the commencement of these sentences by 74 days from the end of the existing intensive correction order. I will take into account the period in custody following the making of the intensive correction order by further backdating from the end of the existing intensive correction order the commencement of the present sentences by a time equivalent to 50%of that additional period, namely, 90 days. This means that the overall period of backdating will be 164 days. The 50% figure recognises that by reason of the refusal of bail he served his sentence in a manner which was more onerous and more restrictive of his liberty. Therefore, the first of the present sentences will commence 164 days prior to 18 April 2019, namely, 5 November 2018.
Orders
The orders of the Court are:
1. On the charge of aggravated burglary (CC2018/3567) the offender is convicted and sentenced to imprisonment for a period of 12 months commencing on 5 November 2018 and ending on 4 November 2019.
2. On the charge of aggravated burglary (CC2018/3568) the offender is convicted and sentenced to imprisonment for a period of 12 months commencing on 5 January 2019 and ending on 4 January 2020.
3. On the charge of assault occasioning actual bodily harm (CC2018/3570) the offender is convicted and sentenced to imprisonment for three months from 5 December 2019 until 4 March 2020.
4. On the charge of possessing offensive weapon with intent (CC2018/3571) the offender is convicted and fined the amount of $200 and allowed no time to pay.
5. On charge the charge of resisting a public official (CC2018/3572) the offender is convicted and fined $100 and allowed no time to pay.
6. On the charge of trespassing on premises (CC2018/3566) the offender is convicted and fined $400 and allowed no time to pay.
7. The sentences on the first three charges above are to be served by intensive correction in the community with the following additional conditions:
(i)that the offender undertake such:
a.medical treatment or supervision; or
b.programs or counselling, including residential rehabilitation,
as he is directed to do so by the Director-General.
| I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 4 March 2019 |
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