R v Donnelly
[2021] ACTSC 336
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Donnelly |
Citation: | [2021] ACTSC 336 |
Hearing Date(s): | 18 June 2021 and 22 June 2021 |
DecisionDate: | 23 June 2021 |
Before: | Refshauge AJ |
Decision: | 1. Daniel Donnelly be convicted of the first offence of aggravated burglary and be sentenced to 18 months imprisonment, to commence 8 January 2020 and expire 7 July 2021. 2. Daniel Donnelly be convicted of dishonestly riding in a motor vehicle and be sentenced to six months imprisonment, to commence 8 May 2021 and expire 7 November 2021. 3. Daniel Donnelly be convicted of the second offence of aggravated burglary and be sentenced to 18 months imprisonment, to commence 8 January 2021 and expire 7 July 2022. 4. Daniel Donnelly be convicted of theft by joint commission and be sentenced to 12 months imprisonment, to commence 8 October 2021 and expire 7 October 2022. 5. Daniel Donnelly be convicted of damaging property by joint commission and be sentenced to 12 months imprisonment, to commence 8 January 2022 and expire 7 January 2023. 6. Daniel Donnelly be convicted of attempting to take motor vehicle without consent by joint commission and be sentenced to 12 months imprisonment, to commence 8 March 2022 and expire 7 March 2023. 7. Daniel Donnelly be convicted of obtaining property by deception by joint commission and be sentenced to six months imprisonment, to commence 8 October 2022 and expire 7 April 2023. 8. Daniel Donnelly be convicted of the first offence of taking a motor vehicle without consent by joint commission and be sentenced to 12 months imprisonment, to commence on 8 August 2022 and expire 7 August 2023. 9. Daniel Donnelly be convicted of the second offence of taking a motor vehicle without consent by joint commission and be sentenced to 12 months imprisonment, to commence 8 December 2022 and expire 7 December 2023. 10. Daniel Donnelly be convicted of the first offence of trespass and be required to sign an undertaking to comply with the offenders Good Behaviour Obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of nine months, to commence today, 23 June 2021 and expire 22 March 2022. 11. Daniel Donnelly be convicted of aggravated dangerous driving and be sentenced to 6 months imprisonment, to commence 8 July 2023 and expire 7 January 2024. 12. Daniel Donnelly be convicted of driving while disqualified and be sentenced to six months imprisonment, to commence 8 July 2023 and expire 7 January 2024. 13. Daniel Donnelly be convicted of the second offence of trespass and be sentenced to sign an undertaking to comply with the offenders Good Behaviour Obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months, to commence 23 March 2022 and expire 22 March 2023. 14. A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Daniel Donnelly for two years, to commence today, 23 June 2021, and expire 22 June 2023 in respect of the primary offence of aggravated burglary. 15. That Order be extended to the other offences for which Daniel Donnelly has been convicted today, 23 June 2021, all being associated offences. 16. The convictions and sentences for the primary offence and associated offences be hereby incorporated into the Drug and Alcohol Treatment Order in the custodial part of that Order. 17. The total sentence of four years be suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 23 June 2021, until 7 January 2024. 18. Daniel Donnelly be required to sign an undertaking to comply with the offender’s Good Behaviour Obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Drug and Alcohol Treatment Order, 23 June 2023, until the end of the total sentence, 7 January 2024, with a probation condition that he accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him including as to urinalysis, counselling and treatment. 19. For the treatment and supervision part of the Drug and Alcohol Treatment Order: a. The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed; b. Daniel Donnelly travel directly from this Court to Canberra Recovery Services, Fyshwick, and admit himself to the residential drug rehabilitation program at that facility by 1:00 pm today, 23 June 2021; c. Daniel Donnelly be directed to complete the residential drug rehabilitation program at Canberra Recovery Services, to not leave the facility until he has completed the course and to comply with all the directions of the person in charge of the program and all the rules of the program and the facility; d. Should Daniel Donnelly leave or be discharged from the program before completing it, he report to ACT Corrective Services by 4 pm on the next business day with a view to having his Drug and Alcohol Treatment Order reviewed; e. Daniel Donnelly undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where he resides, with whom he associates and his attendance from time to time; and f. Daniel Donnelly comply with any directions of the Court from time to time about attendance at Court in person or by electronic means. 20. Daniel Donnelly be directed to appear by electronic means in Court on Friday 2 July 2021 at 12:30 pm. 21. Daniel Donnelly be directed to attend the Court Registry before he leaves the Court precincts to sign a sealed copy of this Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this Order is in force. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –Aggravated Burglary – Obtaining Property by Deception – Theft – Driving a Motor Vehicle Without Consent – Riding in a Motor Vehicle Without Consent – Attempting to Take a Motor Vehicle Without Consent – Driving a Motor Vehicle While Disqualified – Aggravated Dangerous Driving – Good Behaviour Order – Rehabilitation – Drug and Alcohol Treatment Order |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 12A, 33(1), 46J, 63, 80M, 80W, 85, 86 Criminal Code 2002 (ACT) ss 45A, 308, 312, 318, 326, 403 Road Transport (Safety and Traffic Management) Act 1999 (ACT) s 71(1) |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Director of Public Prosecutions (Vic) v Terrick [2009] VSCA 220; 24 VR 457 Wong v The Queen [2001] HCA 64; 207 CLR |
Parties: | The Queen ( Crown) Daniel Donnelly ( Accused) |
Representation: | Counsel C Muthurajah (18 June 2021); K Sharafeldin (22 and 23 June 2021) ( Crown) F J Purnell SC (18 June 2021); J Robertson (22 and 23 June 2021) ( Accused) |
| Solicitors ACT Director of Public Prosecutions ( Crown) JDR Lawyers ( Accused) | |
File Number(s): | SCC 173 of 2020 SCC 174 of 2020 |
REFSHAUGE AJ
Introduction
There is no doubt that the combination of childhood disadvantage, use of alcohol and other drugs and associating with anti-social peers is likely to lead to criminal activity. The earlier it commences, the more entrenched it becomes.
The tools available to the criminal justice system to respond to issues such as these are quite limited. Not inappropriately, the community expects both that severe punishment will be visited on perpetrators of breaches of the standards of behaviour expected in the community and that the community will be made safe.
Unfortunately, criminological research does suggest that these two do not always go together. Such criminal activity is embedded in habits and circumstances which imprisonment is often ill-designed and ill-equipped to address and change.
Indeed, it is the experience of this Court that offenders with long histories of drug use and crime often become institutionalised after many years of incarceration, even becoming comfortable in prison. Thus, not only does it not act as a deterrent, but alternative opportunities for rehabilitation are harder and more challenging, not infrequently, leading to failure where only the inadequate and flawed traditional criminal justice responses are left to use.
In this context, I have to sentence Daniel Donnelly, a 25 year old Aboriginal man, for two charges each of aggravated burglary, dishonestly taking a motor vehicle without the owner’s consent and trespass, and one charge each of theft, damaging property, obtaining property by deception, attempting dishonestly to take a motor vehicle without the owner’s consent, dishonestly riding in a motor vehicle without consent, driving whilst disqualified and aggravated dangerous driving, to each of which charge he has pleaded guilty.
On sentencing, the Crown tendered the Crown Sentencing Tender Bundle, which included the Agreed Statement of Facts, Mr Donnelly's Criminal History, a Victim Impact Statement and a Reparation Schedule. It also included two Pre-Sentence Reports, one dated 1 September 2016, from earlier proceedings, and the other dated 23 April 2021. A disc of CCTV footage of some of the events was also tendered. There was no objection to any of this material and it was admitted into evidence. There was no challenge to the contents of any of these documents.
In addition, supplied to the Court were Drug and Alcohol Treatment Assessments (Suitability Assessments) under s 46J of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). One Suitability Assessment was completed by ACT Corrective Services, dated 3 June 2021, and one was by the Alcohol and Drug Services of Canberra Health Services, dated 10 June 2021, with a Case Plan and a Cultural Assessment dated 12 June 2021. They were, as directed, forwarded to the Court and to members of the Treatment Order Team (as defined in s 80M of the Sentencing Act). They were admitted into evidence. No objection was taken to them or to their contents.
A number of documents were tendered for Mr Donnelly, namely a Child Protection Assessment Report, apparently prepared in 2009, a SERAS Indigenous Athletic Talent Program Report dated 4 October 2013, a Report of Mr Tom Sutton, Clinical Psychologist, dated 26 April 2012, a Care and Protection Case Transfer, also apparently prepared in 2009, a letter from Veronica Jordan, Managing Director of Culture on the Move, dated 4 May 2021 and a letter from Mr Donnelly dated 18 April 2021 addressed to the Court. There was no objection to the tender of any of these documents and they were admitted into evidence. No challenge was made to the tender of any of them.
I have read all this material. In addition, I had very helpful written submissions from Ms C Muthurajah, counsel for the Crown, and Mr F J Purnell SC, counsel for Mr Donnelly, together with their useful oral submissions.
10. I also had the sentence remarks of earlier Supreme Court proceedings involving Mr Donnelly and the sentencing remarks of this Court in respect of Kieran Elphick, Mr Donnelly's co-offender.
11. From this material I make the following findings.
The facts
12. On 25 December 2019, Mr Donnelly was driven by Mr Elphick and with two other unidentified co-offenders to The Pier, an apartment building in Trevillian Quay, Kingston, in a black BMW sedan, which had been stolen the day before from a motor vehicle retailer in Hume, ACT. At the building, Mr Elphick, using a small, thin implement, forced the lock of a side door of the apartment building and, after several attempts, he and Mr Donnelly entered the building into an entry area which served as storage for parcels and packages delivered to residents. The two picked up three packages, returned to the motor vehicle, got into it and drove away. These were the facts which constituted the first offence of aggravated burglary and dishonestly riding in a motor vehicle without the owner's consent.
Mr Donnelly also rode in the stolen BMW vehicle on several occasions during the following day, 26 December 2019, and, thus, the charge of dishonestly riding in a motor vehicle without the owner's consent is a rolled-up charge.
14. I note that Mr Donnelly was present during, though not charged with, further offences committed by Mr Elphick, including the theft of a set of keys, which included a remote device for the opening of a garage to the ‘Dockside’ apartment building in Kingston, but, as not charged, I do not take them into account.
15. On 26 December 2019, Mr Donnelly was again driven by Mr Elphick to a laneway adjacent to the ‘Dockside’ apartment building where Mr Elphick opened the garage door with the remote device, that he had stolen the day before, and drove into the apartment building’s underground carpark. A red Hyundai i30 hatchback, also stolen from the retailer in Hume, with two unidentified males in it also drove in behind the BMW sedan. The four males commenced to break into the cars parked in the carpark. This constituted the second offence of aggravated burglary.
16. Mr Donnelly and the other offenders let themselves into an unlocked Nissan NX Coupe vehicle parked there. They damaged and forced open the steering cowling and, unsuccessfully, attempted to start the vehicle and drive it away. Their attempts to start the Coupe also caused significant damage to the starter motor. They left the vehicle, which later the owner sold for $600 in the damaged condition, notwithstanding that it had been worth approximately $2,500 prior to this incident. These were the facts that founded the offence of dishonestly attempting to take a motor vehicle without the owner's consent.
17. The four offenders then proceeded to smash the windows of 11 other cars. The total cost of the repairs of these cars was approximately $45,021.78. The offenders also stole various items from 10 of the cars, including 5 pairs of sunglasses, 4 sets of keys, a number of garage remotes, cash and coins from 3 cars, 3 purses, a USB cable, a cigarette charging port, a small card holder wallet, ear pods, charging cables and a pair of shoes.
18. The items stolen totalled approximately in value $4,050.50. There were also some purses and wallets containing cards, including bank cards, stolen from the vehicles. These constituted the charges of damaging property and theft, which also were rolled-up counts, relating to the 11 vehicles which were damaged and the 10 vehicles from which property was stolen.
19. Later that day, Mr Donnelly was driven by Mr Elphick in the BMW sedan to the BP Service Station at Melrose Drive, Phillip, where he purchased some drinks with a credit card which was stolen from one of the cars earlier that day. Mr Elphick then refuelled the car and purchased the fuel and some other items, for which he paid with the stolen credit card. The service station CCTV showed the two clearly and they were wearing the same clothes as they had at the burglary of the 'Dockside' apartments earlier that day. These events founded the offence of dishonestly obtaining property by deception.
20. Later again that day, Mr Donnelly and Mr Elphick went to a vehicle transportation business, Carways, in Mitchell and squeezed through the gate, walking then into the rear holding yard. These were the facts that constituted the first charge of trespass.
21. While in the yard, Mr Elphick smashed the window of a car hauler truck and reached inside the cab to collect the keys of two vehicles which were on the back tray of the truck. Mr Donnelly then got into one of the cars, a white Isuzu vehicle, while Mr Elphick extended the wheel ramps. Mr Donnelly tried to reverse the vehicle off the back tray of the truck, but could not do so. Mr Elphick took over and drove both the white Isuzu vehicle and the other vehicle, a red Hyundai Veloster, off the back of the truck.
22. They then left and returned a short time later on foot and each drove one of the cars away, Mr Donnelly again in the white Isuzu. At the time, Mr Donnelly was an unlicensed driver, having been disqualified from holding or obtaining a driver licence on 15 July 2019 for various offences committed on 9 April 2019. These facts constituted the two offences of dishonestly taking a motor vehicle without the owner's consent and one offence of driving whilst disqualified.
23. Mr Donnelly then drove the white Isuzu vehicle into Coombs, ACT, where he drove at such speed that, when driving south into Bedbrook Street, the tyres screeched, lost traction and the car slid towards a passer-by and his two young daughters, before the tyres regained traction. The father of the daughters was concerned about the safety of himself and his children. Mr Donnelly continued to drive around Coombs, again, as he was speeding along, passing the passer-by. He continued to drive into Pearlman Street, where he lost control and collided with a brick retaining wall of the Ashi residential complex. These events were the basis for the charge of aggravated dangerous driving.
24. Mr Donnelly then ran from the crashed car and into the Ashi residential complex, over a gate and through a secure courtyard, into which he had no permission to enter. These were the facts for the second charge of trespass.
25. Police examined the crashed white Isuzu vehicle and located biological material that was analysed to show Mr Donnelly's DNA. They also found Carways paperwork and a remote control device from the 'Dockside' apartments in the vehicle. Mr Donnelly was also recognised the next day by a resident, whose house Mr Donnelly walked past and who recognised Mr Donnelly from the car crash the day before.
The proceedings
26. Mr Donnelly was arrested on 8 January 2020 and charged with four offences in the Magistrates Court on 9 January 2020, including aggravated robbery. He was remanded in custody.
27. After adjournments, he appeared in Court on 3 April 2020 and was charged with 25 further offences arising out of the events that I have described above and was further remanded in custody.
28. The charge of damaging property was a rolled-up count, encompassing the damage to 10 cars in the underground garage, but in the form of participating in a criminal group and causing damage.
29. On 27 April 2020, two of the earlier offences were withdrawn. On 3 June 2020, another of the first offences was dismissed when no evidence was offered. On 20 June 2020, Mr Donnelly was charged with two more offences and then, on 13 July 2020, another six offences. The final of the first four offences was withdrawn on 16 July 2020.
30. Mr Donnelly remained in custody until he was sentenced. After two adjournments, he entered pleas of not guilty to some offences on 22 July 2020. A Brief of Evidence was served by the Prosecution in July 2020. On 6 August 2020, Mr Donnelly was committed for trial to this Court and the summary offences were transferred. There were 34 charges on which Mr Donnelly was committed, together with four charges which were transferred. Various procedures were undertaken in this Court and on 18 December 2020 a fresh indictment was filed. Mr Donnelly pleaded guilty to all nine counts on that fresh indictment and to each of the transferred charges.
31. Mr Donnelly was then referred to the Drug and Alcohol Sentencing List where, after confirming his eligibility to assessment, Suitability Assessments were ordered and the proceedings listed for sentence.
32. It was discovered on the day when sentence was to be imposed that Mr Donnelly had been committed for trial in respect of the charge of aggravated dangerous driving. That charge, however, was not included in the indictment filed on 18 December 2020. Without that, I had no jurisdiction to deal with it. Initially, it was thought that a second supplementary indictment could be filed with that charge on it, but it appears that there cannot be two indictments filed in one proceeding: R v DF (No 2) [2012] ACTSC 3; 6 ACTLR 105 at 109-113; [16]-[45]. It may be, however, that this only applies to trials but not to sentences: see ST v The Queen [2017] NSWCCA 245 at [47].
33. In any event, it was soon realised that the offence was a summary only offence and so could not have been the subject of the committal of Mr Donnelly for trial, as had been purported to be done. Thus, the purported committal was a nullity. This meant that I had no jurisdiction to deal with that charge; I could not take a plea of guilty from Mr Donnelly and certainly could not sentence him for it. I could not even remit it back to the Magistrates Court.
34. Instead, I requested the parties to arrange for the matter to be relisted urgently before the Magistrates Court and, as the committal was a nullity, it was still before that Court and had not been transferred from its jurisdiction by committal or otherwise.
35. As Mr Donnelly had not pleaded guilty to the offences in respect of which he had been committed to this Court, the related offences could not be transferred to this Court under s 90B of the Magistrates Court Act1930 (ACT). The related charges which had been transferred must, accordingly, have been transferred under s 88B of the Magistrates Court Act when Mr Donnelly waived committal proceedings.
36. The Magistrates Court could then deal with the additional charge of aggravated dangerous driving as a related offence, as it was related to the charge of dishonestly driving a motor vehicle, namely the white Isuzu sedan, without the owner's consent. The Court could transfer that charge under s88B of the Magistrates Court Act also.
37. That has now been done, I have taken a plea of guilty from Mr Donnelly so that I can deal with that charge and will do so.
38. Mr Donnelly has spent 14 months and 19 days in custody pending sentence. This time will also be taken into account.
The offences
39. The task of sentencing is not an easy one. It involves, as the High Court has made clear, the synthesising of various considerations that must be taken into account, even though some point in various and conflicting directions: see Wong v The Queen [2001] HCA 64; 207 CLR 584 at 611; [75].
40. In general terms, there are three main foci for such considerations, namely the offence itself, the offender and the victim or wider community.
41. In order to assist, s 33(1) of the Sentencing Act sets out a number of matters which a Court sentencing an offender is required to address. The first, s 33(1)(a), is ‘the nature and circumstances of an offence’. As the High Court has made clear in many cases from as long ago as Ibbs v The Queen (1987) 163 CLR 447 at 451, this starts with the maximum penalty.
42. The Courts have then, in what may be considered part of the required consideration, a requirement to consider current sentencing practices (s 33(1)(za) of the Sentencing Act), which includes what are the identified factors of the actual commission of a particular offence that can determine its seriousness and, so, the sentencing response required in combination with all the other factors.
43. I turn to the offences, their nature and circumstances, informed by these requirements.
44. Aggravated burglary is an offence prohibited by s 312 of the Criminal Code 2002 (ACT) and provides for a maximum penalty of 20 years imprisonment, or a fine of $320,000, or both.
45. It is, thus, a serious offence, though not the most serious in the criminal calendar. It is serious because of the invasion it involves into otherwise private space where occupants can expect it to be safe and they and their possessions be protected. The aggravated version of the offence is the more serious because of the greater harm that it can cause, actually or potentially.
46. Courts have identified various relevant factors which can help them assess the seriousness of the particular version of the offence. See, for example, R v Hancock [2021] ACTSC 52 at [33]. Some assistance can also be gained from the factors that have been identified by the New South Wales Court of Criminal Appeal in R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327 at 337-338; [48]-[49] for breaking, entering and committing a felony. That offence, however, is a somewhat different one to that of burglary and the Court must be careful about applying those factors and any sentencing range.
47. The statutory factor of aggravation in this case is that Mr Donnelly was in company. While this is not as dangerous directly as if he had a weapon with him, being accompanied by other persons can be very threatening and also permits more harm to be done, as actually occurred in the second aggravated burglary. In one case, the burglary was in the service area of an apartment building and, in the other case, was in an underground carpark. While neither were inside residences, they were adjuncts to residences and so more serious than had the burglaries been, for example, of commercial buildings, but less serious than of actual residences: see R v Roux (No 2) [2015] ACTSC 361 at [74].
48. In the first aggravated burglary, there was little damage done, either on entry or while inside. In the second, no damage was done on entry since Mr Elphick used a stolen remote control device. A lot of damage was, however, done while the offenders were inside, although in this case it was also charged separately. While the time of the burglaries, 7:36 pm and 3:47 am on Christmas Day and Boxing Day respectively, were times when the occupants were likely to be home, it seems unlikely that any of the occupants would actually be present at the places where Mr Donnelly and his companions entered. No occupants were actually encountered.
49. Both burglaries appear opportunistic; no particular planning or premeditation seems involved and the Crown did not submit to the contrary. The burglaries were not particularly professional or structured. For example, Mr Elphick had some difficulty in opening the door for the first burglary.
50. The value of the property is not an element of the offence, though it has sometimes been considered relevant, but that usually means a high degree of concurrency for the sentences of the burglary and associated theft: see R v McMahon [2014] ACTSC 280 at [94]. Nevertheless, the property stolen was not substantial but by no means insignificant.
51. While in the first burglary there was no damage while Mr Donnelly and Mr Elphick were in the premises, in the second there was considerable vandalism, which caused a lot of very costly damage. That damage was also separately charged and so considerations of concurrency will be significant.
52. The two buildings that were the subject of the aggravated burglaries seem to be different buildings, so there were not multiple incursions in the same premises.
53. Theft is an offence contrary to s 308 of the Criminal Code and attracts a maximum penalty of 10 years imprisonment, or a fine of $160,000, or both.
54. In this case, the offence was one of joint commission. That is to say, Mr Donnelly did not commit each offence himself, but was party to an agreement to steal from the cars and this was then done. Section 45A of the Criminal Code, this makes Mr Donnelly and each of the other co-offenders liable for the offence and to be taken to have committed the offence and punishable as if he had actually committed each offence.
55. Further, the count was a rolled-up count. That is to say, one count encompassed a number of actual thefts. Here, 10 thefts from different people. I have set out in R v John [2017] ACTSC 144 at [107] how such counts should be approached as follows:
· For sentencing purposes, the rolled up count is one charge and the sentence may not exceed the maximum penalty for the offence charged;
· Nevertheless, the criminality encompassed within the count is greater than were the count to be constituted by only one offence;
· The sentence is not necessarily, and perhaps not usually, the sum of the sentences that would be imposed for the offences comprising the count, thought in an appropriate case it may be; and
· The fact that the count is a rolled-up count may have a bearing on the application of the relevant principles as to accumulation or concurrency.
56. The real problem with theft is that it increases a sense of insecurity in the community and often loss of items that people have worked hard to acquire. Some items stolen may have particular sentimental value or be irreplaceable, which magnifies the loss. As people insure important goods, their loss has a wider effect in the community through the increase in insurance premiums.
57. In this case, the amount stolen was $3,650.50. Given that there were four joint thieves, each is assessed to be responsible for $912.63, not a great deal in purely monetary terms. The loss of cards and keys, however, can cause considerable inconvenience and items such as purses may have sentimental value or contain important items.
Damaging property is an offence against s 403 of the Criminal Code and attracts a maximum penalty of 10 years imprisonment, or a fine of $160,00, or both.
59. It has a similar effect as theft, though it often leads to significant cost and inconvenience to repair, if repairable, or inconvenience because of damage and its consequences. It is, similarly, an undermining of the peacefulness of the community.
60. This offence is, also, an offence jointly committed by Mr Donnelly with the other offenders and is a rolled-up count, encompassing the damage to all 11 motor vehicles. I apply the approach set out above.
61. In this case, the value of the damage varied. For one vehicle it was $100, another $200. One other cost $17,820 to repair, one $10,293 and one $6,424.19, though these were at the top end of damage and not representative of all the damage. The others were largely between $600 and $3,263.59. In all, the amount claimed in the indictment was $41,792.89, which is apportioned to $10,448.22 for each offender, a very large amount, almost certainly well beyond the means of Mr Donnelly and, probably, the other offenders. The value of the damages is an important indicator of the seriousness of the offence.
62. Further, the circumstances are also relevant: see R v Ware [2016] ACTSC 264 at [60]. In this case, the damage was caused to enable the offenders to access the vehicles so that they can steal things from them. While still serious, it was not as serious as if the damage had been entirely senseless vandalism. It must, however, have caused each owner significant inconvenience.
63. Section 326 of the Criminal Code criminalises obtaining property by deception and specifies a maximum penalty of 10 years imprisonment, or a fine of $160,000, or both.
64. This offence involves taking people's property dishonestly and increases suspicion in the community.
65. The offence is often committed, as here, by the dishonest use of credit cards. While the convenience of so-called “tap and pay” is of great benefit, it does cause great risks when people's cards are lost or stolen.
66. The amount taken is, obviously, a significant factor in the seriousness of the offences. In this case, the total amount of the transactions was $185. The offence was largely opportunistic and not premeditated.
67. The remaining counts on the indictment were slightly different offences, but all related. That is, one was dishonestly driving a motor vehicle without the owner's consent, one was attempting to do that and the other was dishonestly riding in a motor vehicle without the owner's consent. They arise from s 318 of the Criminal Code and each have the same maximum penalty, namely five years imprisonment, or a fine of $80,000, or both. Section 318(1) criminalises dishonestly taking a motor vehicle without the owner's consent, while s 318(2) criminalises dishonestly riding or driving a motor vehicle without the owner's consent.
68. These offences both strike at the owner’s use of their important means of transport, their motor vehicle, for which they have, often, paid more than anything else they own, apart from a home.
69. Despite the same maximum penalties, taking the motor vehicle is regarded as more serious than just driving it, which, in turn, is more serious than just riding in it.
70. Other factors that need to be considered, as noted in R v Massey (No 3) [2021] ACTSC 156 at [29], are the period of driving and distance driven, whether the vehicle was used in the commission of another offence, whether there were other passengers in the motor vehicle, the manner of driving (though if separately charged there will be a level of concurrency in sentencing), whether the vehicle was damaged and whether it was recovered for the owner. The value of the vehicle, though rarely disclosed in the evidence, is also relevant. It is also said that it is relevant as to whether the offender would have continued using the motor vehicle if he had not been intercepted by police.
71. In relation to the first charge, dishonestly riding in the motor vehicle, it was a rolled-up charge as Mr Donnelly was driven in the stolen vehicle by Mr Elphick on a number of occasions. The vehicle was used over two days, so for a reasonably long period of time, though the evidence only showed driving from Hume to Kingston and around Kingston, then to Phillip and later to Mitchell, and then elsewhere, until it was later found in Queanbeyan, New South Wales - a reasonably substantial distance in all.
72. On all occasions, the motor vehicle was used to commit other offences, though this requires a degree of concurrency in sentence. There were, it appears, four other passengers, originally, on the first occasion when it was used by Mr Elphick, but, thereafter, only Mr Elphick and Mr Donnelly were in the motor vehicle. No particular manner of driving was shown to have been committed by Mr Elphick. There was no evidence of any damage to the vehicle, but it was recovered by police in Queanbeyan, New South Wales, on 30 December 2020.
73. As to the occasions when Mr Donnelly dishonestly took a motor vehicle, the two counts related to the driving of the vehicles from Carways: the white Isuzu and the red Hyundai i30. Mr Donnelly only drove the red Hyundai for a quite short period, though this was part of the enterprise whereby both cars were taken out of the car yard and driven off. Later, Mr Elphick drove the white Isuzu vehicle around Coombs and drove in a dangerous way. The car ended up damaged when Mr Donnelly drove it so that it collided with a brick wall.
74. Aggravated dangerous driving is a crime under s 7(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) which prescribes a maximum penalty of three years imprisonment, or a fine of $48,000, or both, for a first offender, which Mr Donnelly is. Obviously, this is a serious offence because of the risk to which it exposes other road users of all kinds, even people on the side of those roads, so that such driving through a built-up area is more serious, as happened here. The number of persons put at risk is also important. The distance travelled dangerously is also relevant, as is whether the driving was part of a police pursuit, the speed travelled and whether the driver was impaired by drugs or alcohol. The legislation itself also requires that the nature, condition and care of the road is relevant: see R v Seymour [2021] ACTSC 152 at [39]-[43].
75. The aggravated offence includes a number of these issues, which are all separate offences. These include driving impaired by alcohol or drugs, failing to stop for police, driving at speeds in excess of 30% of the posted speed limit, putting vulnerable people at risk and being a driver under the age of 17 years.
76. In this case, it was said that Mr Donnelly put vulnerable people at risk, namely the daughters of the passer-by. He also drove erratically and sped through the suburb, although there was no evidence about the precise speed, and, as noted above (at [23]), put three pedestrians at risk, especially two young girls, being the vulnerable persons.
77. Driving whilst disqualified is another offence contrary to s 32(1) of the Road Transport (Driver Licensing) Act 1999 (ACT), for which the maximum penalty is six months imprisonment, or a fine of $8,000, or both. It also attracts an automatic disqualification from holding or obtaining a driver licence for 12 months, or such longer period as the Court may order.
78. This offence has been discussed in R v Seymour at [44]-[45]. I rely on what I there said.
79. Trespass is made an offence by s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth) which prescribes a maximum penalty of a $2,000 fine. There were not any specially aggravating factors of these offences.
Subjective circumstances
80. Mr Donnelly is, as I have said, an Aboriginal man aged 25 years old. He was born in Queanbeyan, one of three children of his parents. He has never had any contact with his father, but maintains a close relationship with his mother, who comes from Palm Island, and he has limited family support in the Canberra area. Mr Donnelly reports a good relationship with his mother, brother and sister and his mother is prepared to have him live with her so long as he ceases drug use, eschews his antisocial peers and stops offending.
81. He says that he had a positive upbringing with no negative issues, but the Care and Protection Reports paint a different picture where that agency has had significant involvement with the family since 2000. The family was also known to the New South Wales Department of Community Services since 1991. This involvement was centred on poor supervision and neglect. Reports of homelessness, domestic violence and physical abuse also feature in those reports. I do not propose to chronical all the reports, save to say that the picture that emerges is one of childhood disadvantage.
82. Mr Donnelly also reported domestic violence committed by his stepfather towards his mother and against himself and his siblings.
83. Mr Donnelly's family spent some time in Grafton when he was very young, but he has lived in Canberra or Queanbeyan since he was aged five. He attended primary school, an experience that was affected by his extreme shyness, leading to him being absent from school for about two years. He seems to have abandoned high school after only a couple of weeks, leaving with what he described as literacy levels of ‘survival skills’.
84. When Mr Donnelly was about 11 years old, his family became homeless and his mother sought help from Care and Protection Services. By the time he was 13 years old, he had taken to absenting himself from the family home for extended periods and, before he was aged 14, he and his younger brother were taken into care after being left alone at home with no food and no knowledge of their mother's whereabouts.
85. Mr Donnelly's residence arrangements have long been of concern. It seems his mother was not able to provide a home for him and his habit of going missing for days on end, from wherever he had been living, has caused significant concerns, as well as meaning that he is not getting any useful kind of supervision or any support in keeping out of trouble.
86. Mr Donnelly has been able to work with a local Aboriginal artist; under that supervision, he has shown artistic talent and has produced what are described as high quality pieces of art. The letter from Ms V Jordan, managing director of Culture on the Move, states that she considers that Mr Donnelly is an incredibly talented artist who has a prominent future ahead of him. Mr Donnelly is proud of his Aboriginal heritage and is strongly connected with his culture.
87. Another of Mr Donnelly's special skills has been identified through an Indigenous Athlete Talent Program run by the South East Regional Academy of Sport. Testing indicates that he has a special natural talent in the areas relating to various forms of sport, in some areas outscoring professional NRL, AFL and basketball players. It would be an opportunity for Mr Donnelly, if he could address other issues so that he will be able to build on this natural talent, to create a better future for himself, especially because of a new sense of pride in himself as a talented and useful member of the community.
88. Other than these pursuits, he has had no real employment history at all.
89. In April 2012, Mr Donnelly underwent a limited psychological assessment. Mr Tom Sutton, the psychologist, describes him as having “mild mental retardation”
and functioning “no better than about 1 to 5 % of his age peers”. Mr Donnelly's verbal reasoning is especially compromised and Mr Sutton points out that he will likely not be able to think through future implications and consequences in the abstract. In particular, Mr Sutton believes that Mr Donnelly's executive skills (that is his planning, organisation, goal directed behaviour, inhibition and mental flexibility) are likely to be compromised. This would explain his repeated failures to engage with and maintain participation in required or desirable activities while he is in the community.
90. Mr Donnelly was also diagnosed with Attention Deficit Hyperactivity Disorder when he was four years old and commenced medication, but ceased using it at the age of six as his mother was concerned that it was affecting his personality and presentation. Mr Donnelly has also been diagnosed with depression, for which he has been treated with medication. Mr Donnelly has no physical health issues.
91. Mr Donnelly is the father of a two year old daughter and wishes to have contact with her, though he is separated from her mother. His new partner has two children who regard him as their father. In his letter to me, Mr Donnelly expressed the wish to be available for these three children and their need to have a present, engaging and loving father, which he did not have when growing up.
92. Mr Donnelly began using cannabis at age 13 and regularly shared it with friends. His use escalated after three years, but he ceased using about five years ago as his methamphetamine use grew.
93. He drank alcohol first at around age 15, consuming two standard drinks weekly, but he now says that his consumption has much decreased from that, though other reports suggest that he was, by age 15, drinking spirits every day with his mates while they were using cannabis.
94. He commenced using methamphetamine when he was 15 years old. Initially, he did not like it, but tried it again a couple of years later and was soon using about half a gram per day. He later started injecting at age 19 when he was incarcerated. At the time of his offending, he was using three and a half grams daily.
95. He has tried a variety of other drugs, but mostly very briefly, including MDMA/ecstasy, heroin, cocaine, GHB and hallucinogens.
96. Mr Donnelly has had some drug treatment. He has previously been a participant in a methadone program, but came off that so that he could go to Oolong House (as to which agency, see R v Williams [2015] ACTSC 15 at [8]-[9]). He was not granted bail for that purpose and has now commenced Buvidal injections.
97. He has attended Directions Health Services for counselling.
98. At the Alexander Maconochie Centre he entered the Solaris Therapeutic Community (as to which, see R v JM [2014] ACTSC 380 at [26]) and completed it on 12 June 2020, apparently satisfactorily. He says that since then he has not used drugs, supported by a negative urinalysis result on January 2021.
99. He reported having attended SMART Recovery meetings at the Alexander Maconochie Centre (as to which program, see R v McGrail [2016] ACTSC 141 at [78]). He did attend Oolong House for two and a half months a few years ago and Karralika Therapeutic Community (as to which, see R v Sladic [2014] ACTSC 56 at [25] and R v Kristiansen [2015] ACTSC 159 at [12]-[14]) in 2013 for four months.
He is also said to have spent some time at the Ted Noffs Foundation PALM residential program, where he was involved in inappropriate behaviour after some time, which led to his discharge: see R v GD, DD, AKT and BW (Unreported, Supreme Court of the Australian Capital Territory, SCC 15 of 2012, 19 of 2012, 32 of 2012, 40 of 2012, 56 of 2012, and 127 of 2012, Penfold J, 20 June 2012) p 13. He has been assessed as suitable for admission to the Canberra Recovery Services if he were to be released from custody.
Mr Donnelly has a very long and depressing criminal history. He has 63 offences on his record [redacted for legal reasons]. His offences were almost exclusively offences of dishonesty, including aggravated burglary, burglary, theft and possession of stolen property, as well as dishonestly riding or driving in motor vehicles without the owner's consent. He has failed to appear in accordance with a bail undertaking on four occasions and breached Court orders on four occasions that appear on his criminal record. He also has three offences of damaging property on his Record and one offence of aggravated robbery.
He has indicated that he proposes to live with his mother and brother in Griffith, ACT, when he is released. ACT Policing has expressed no concerns about that property.
Mr Donnelly was polite and cooperative in the preparation of the Suitability Assessments and expressed his motivation to address his illicit drug use. He expressed disappointment in himself at his offending, which he acknowledged was ‘stupid’.
In his letter to the Court, he acknowledges that he has been in custody for a long time and sees it as time wasted. This has opened his eyes, especially to his family, who he earnestly wishes to support. He has been engaging in programs while in custody, including counselling and the Solaris Therapeutic Community Program as noted above (at [98]), which he sees as an important first step to what he wishes to build.
Mr Donnelly has been assessed as likely to have a severe substance use disorder. He expresses his need to address his dependency and self-referred to the Solaris Therapeutic Community. He says that he does not recall much about the offences as he was under the influence of illicit drugs at the time. He did, however, accept that he was responsible for committing the offences. He also admitted that he did not think about the victims at the time of the offences. Had he thought about them, he would not have been able to commit the offences.
Reparation order
A claim for compensation has been made for $17,820.11 by one car owner, $10,293.21 by another and $736.21 by a third owner.
I have addressed this issue in other cases: see R v Massey (No 3) at [66]-[69] and R v Steen [2015] ACTSC 259 at [51]-[52].
Even if the claim that Mr Donnelly had to meet be only $7,212.38, being one quarter of the total, it would still be a large sum for a man with no means to pay it and poor employment prospects.
I note, too, that Mr Elphick has been sentenced and that the Court decided not to make a reparation order: see R v Elphick [2021] ACTSC 9 at [158].
I decline to make such an order.
Sentencing practice
In addition to the assessment of the seriousness of the offences by use of current sentencing practices, as set out above (at [39]-[79]), the requirement to consider such sentencing practice under s 31(1)(za) of the Sentencing Act also leads to a consideration of the sentences actually imposed in current times so that the courts can get a sense of the collective wisdom of Judges who impose such sentences and review them on appeal.
This can be done by consideration of comparable sentences, or by use of statistics. The latter have great limitations, but can be of value in general terms: see R v Mathews [2020] ACTSC 364 at [45].
In R v Elphick at [154], Murrell CJ said:
The limitations of sentencing statistics are well known, however, for what they are worth, sentencing statistics show that, in relation to sentences imposed by the Supreme Court, when the penalty that is imposed is imprisonment:
(a) the offence of aggravated burglary usually results in a sentence of between 18 months’ and three years and six months' imprisonment;
(b) the offence of burglary usually results in a sentence of between 12 months’ and three years and six months' imprisonment;
(c) the offence of taking a motor vehicle without consent usually results in a sentence of six to 12 months' imprisonment;
(d) the offence of obtaining property by deception usually results in a sentence of six to 12 months' imprisonment;
(e) the offence of theft usually results in a sentence of six to 18 months' imprisonment;
(f) the offence of minor property damage is usually punished by a sentence of six months' imprisonment;
(g) the offence of minor theft usually results in a sentence of six months' imprisonment; and
(h) the offence of drive while disqualified usually results in a sentence of six months' imprisonment.
The other way in which a sentencing Court can be informed of current sentencing practice is by consideration of comparable cases. With such a spread of offences, that can be difficult. In this case, neither counsel referred to such cases.
The co-offender, Mr Elphick, has, however, been sentenced and I will review the sentences imposed on him as these also will be important in respect of the principles of consistency and parity. There were differences, however, that must be borne in mind. For example, the offending of Mr Elphick breached a Good Behaviour Order, which would render the sentences more serious.
Childhood disadvantage
As noted above (at [80]-[85]), I have found that Mr Donnelly suffered significant childhood disadvantage. This stems, in part, from the circumstances of his upbringing, with domestic violence, neglect, homelessness and lack of schooling. An obvious effect that this has had for him was that his mother and siblings were not able to make up for these problems.
In addition, whether as a consequence or congenitally, he has mental issues, identified by Mr Tom Sutton, psychologist, which were no doubt not helped by his Attention Deficit Hyperactivity Disorder. He had limited education. He was, unsurprisingly, led into the criminal justice system at a distressingly early age.
This attracts the application of what have become known as the Bugmy principles. These were principles initially forged by the State Courts in R v Fernando (1992) 76 A Crim R 58 and developed in the Director of Public Prosecutions (Vic) v Terrick [2009] VSCA 220; 24 VR 457: see TM v Karapanos [2011] ACTSC 74; 250 FLR 366.
These principles were definitively established in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 595; [44]-[45], where the Court held that a deprived background has an effect on punishment, though it must be related to the circumstances of the case and of the criminality. Here, Mr Donnelly's lack of structure and boundaries in his early introduction to illicit drugs and his mental challenges are clearly relevant to his criminal behaviour. This will mitigate sentence. It is important, too, to note that such disadvantage does not dissipate over time, nor with ongoing criminality: see R v Crawford (No 1) [2020] ACTSC 245 at [96].
I shall take this into account.
Consideration
The Legislature, in ss 6 and 7 of the Sentencing Act, has set out the objects and purposes of punishment which must inform the sentence that a court, when sentencing an offender, will fashion from the instinctive synthesis that draws together the various, often contradictory, matters which go into creating a just and adequate sentence.
In this case, the serious nature, prevalence and number of offences over a short period, requires that punishment play a role in the sentence. The harm that such offences cause to the community and its members requires also that an element of general deterrence be demonstrated by the sentence.
Mr Donnelly's prior offending with similar offences to the more serious ones means that specific deterrence is also important, to show him that such behaviour is not acceptable. These elements of the sentence will also help to protect the community and to denounce the offences as unacceptable conduct in a civilised society and reinforce appropriate standards of conduct.
The victims have been harmed. The claims for compensation show the extent of that and must also be respected, notwithstanding that I have found that the claims cannot be met in the way that they have sought.
In addition, I had a Victim Impact Statement which shows graphically how the crimes Mr Donnelly committed can affect those who are directly affected. It is worth quoting it in full as follows:
The crimes committed by Mr Donnelly included senselessly damaging my brand new car which was parked within the car park of my apartment. This caused physical and financial damage to the car, and left permanent damage to the vehicle which is not feasible to be fixed. This caused stress and inconvenience to myself and my partner, and rendered the car unusable for a period of time. Furthermore, this action undermined our faith in the security of the building, and has caused a detriment to our sense of safety within our home.
The harm to the victims must be recognised in the sentence imposed. Nevertheless, rehabilitation is important and, indeed, as French CJ has pointed out in Hogan v Hinch [2011] HCA 4; 243 CLR 506 of 536-7, [32], is the surest protection of the community and in the public interest.
Mr Donnelly pleaded guilty before trial. It was not at the earliest time and was in this Court, not, as often happens, in the Magistrates Court. Nevertheless, it was entered into after negotiations with the Crown and did simplify the proceedings and substantially reduced the number of offences committed and, indeed, in some cases, the nature of them. It did, therefore, provide utilitarian value and justify a reasonably significant discount as a result.
Mr Donnelly's childhood disadvantage is a relevant matter, as is the early age at which he became a user of illicit drugs: see R v Henry [1999] NSWCCA 111; 46 NSWCR 346 at 397-8; [273]. These facts do mitigate his culpability for the crimes.
I take into account the nature and circumstances of the offences as I have described them and the facts that contributed to them, as well as Mr Donnelly's personal circumstances as I have also described them. I take into account the harm done to the victims, quite serious in some cases, Mr Donnelly's plea of guilty and his growing insight into the effect of his crimes. I take into account his desire to rehabilitate and the steps he has taken towards that end, which deserve to be built upon in the creation of a just and adequate sentence.
There are, of course, multiple offences. I have to impose a sentence on each and I have carefully considered the length of each sentence to ensure that it is just and adequate and also to ensure that Mr Donnelly is not punished twice.
I have also to consider whether the sentences should be partly or wholly concurrent because, for example, they are part of the same course of conduct or contain common elements. This is particularly relevant here to the relationship between the offences of aggravated burglary and offences committed during the burglary, namely theft and damaging property, and also the fact that the offences were part of the same course of conduct.
I have then considered the length of the total term of the sentence arrived at to ensure that the principle of totality is respected and that the total sentence adequately reflects the criminality of the offences committed, but not more than that, and that the total sentence is not excessive but will leave open the realistic prospect of reform and maintain the hope required for Mr Donnelly to take an effective part in the community, to reconnect with his family, provide a role model for his children, and realise his aims when he is released.
This may result in what is seen by some as leniency, in that some sentences are made concurrent, but, while the total criminality of Mr Donnelly is an important factor, his growing awareness of the need of rehabilitation is also important, as is his childhood disadvantage and the circumstances of his early introduction to drug use. Thus, it requires a sentence proportionate to his culpability for the crimes and the effect on the community, but also Mr Donnelly's subject circumstances and the value of reform to both the community and to himself. I am satisfied, however, that no other sentence but a sentence of imprisonment is appropriate and just for the offences he has committed: see s 10 of the Sentencing Act.
In fashioning a just and appropriate sentence, I have had close regard to the sentence imposed on the principal co-offender, Mr Elphick. This requires the important principle of parity to be respected. I accept that the 100 offences Mr Elphick committed attracted the principle of totality in a way that is not completely comparable here. I also accept that parity is not to be achieved by a mere mathematical exercise: see Kelly v The Queen [2017] NSWCCA 256 at [33]. Nevertheless, it is important to have careful regard to the sentences imposed on Mr Elphick.
I also note that Mr Donnelly has been in custody for a substantial period prior to sentence and I shall take that into account, as provided for in s 63 of the Sentencing Act, by backdating the start of the sentence.
Sentence
[His Honour then spoke directly to the offender].
Mr Donnelly, please stand.
I convict you of the first count on the indictment, aggravated burglary, and sentence you to 18 months imprisonment, commencing on 8 January 2020 and expiring on 7 July 2021. Had you not pleaded guilty, I would have sentenced you to 23 months imprisonment.
I convict you of the second count on the indictment, dishonestly riding in a motor vehicle, and sentence you to six months imprisonment, to commence on 8 May 2021 and expire on 7 November 2021. That is to be cumulative as to four months on the sentence for the first aggravated burglary. Had you not pleaded guilty, I would have sentenced you to eight months imprisonment.
I convict you of the third count on the indictment, the second aggravated burglary, and sentence you to 18 months imprisonment, to commence on 8 January 2021 and expire on 7 July 2022. That is to be cumulative as to eight months on the sentence for dishonestly riding in a motor vehicle. Had you not pleaded guilty, I would have sentenced you to 23 months imprisonment.
I convict you of the fourth count on the indictment, theft by joint commission, and sentence you to 12 months imprisonment, to commence on 8 October 2021 and expire on 7 October 2020. Had you not pleaded guilty, I would have sentenced you to 15 months imprisonment.
I convict you of the fifth count on the indictment, damaging property by joint commission, and sentence you to 12 months imprisonment, to commence on 8 January 2022 and expire on 7 January 2023. That is to be cumulative as to three months on the sentence for aggravated burglary. Had you not pleaded guilty, I would have sentenced you to 15 months' imprisonment.
I convict you of the sixth count on the indictment, attempting to take a motor vehicle without consent, and sentence you to 12 months imprisonment, to commence on 8 March 2022 and expire on 7 March 2023. That is to be cumulative as to two months on the offences for damaging property. Had you not pleaded guilty, I would have sentenced you to 15 months imprisonment.
I convict you of the seventh count on the indictment, obtaining property by deception by joint commission, and sentence you to six months imprisonment, to commence on 8 October 2022 and expire on 7 April 2023. That is to be cumulative as to one month on the sentence for attempting to take a motor vehicle without consent. Had you not pleaded guilty, I would have sentenced you to eight months imprisonment.
I convict you of the eighth count on the indictment, the second count of taking a motor vehicle without consent by joint commission, and sentence you to 12 months imprisonment, to commence on 8 August 2022 and expire on 7 August 2023. That is to be cumulative as to four months on the sentence for obtaining property deception. Had you not pleaded guilty, I would have sentenced you to 15 months imprisonment.
I convict you of the ninth count on the indictment, taking a motor vehicle without consent by joint commission, and sentence you to 12 months imprisonment, to commence on 8 December 2022 and expire on 7 December 2023. That is cumulative as to four months on the sentence for using a motor vehicle. Had you not pleaded guilty, I would have sentenced you to 15 months imprisonment.
I convict you of the first trespass and I require you to sign an undertaking to comply with the offender's Good Behaviour Obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of nine months, to commence from today, 23 June 2021, and expire on 22 March 2022.
I convict you of aggravated dangerous driving and sentence you to six months imprisonment, to commence on 8 July 2023 and expire on 7 January 2024. That is to be cumulative as to one month on the sentence for the second taking and using a motor vehicle without consent. Had you not pleaded guilty, I would have sentenced you to eight months imprisonment.
I convict you of driving whilst disqualified and I sentence you to six months imprisonment, to commence on 8 July 2023 and expire on 7 January 2024. That is to be wholly concurrent with the offence of aggravated dangerous driving. Had you not pleaded guilty, I would have sentenced you to eight months imprisonment.
I convict you of the second trespass and I require you to sign an undertaking to comply with the offender's Good Behaviour Obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months, to commence on 23 March 2022 and expire on 22 March 2023.
That is a total sentence of four years imprisonment.
Mr Donnelly, you may be seated.
Mr Donnelly has requested that I make a Treatment Order in this case and that has been urged by his counsel, who submits that it is, effectively, the only option that is likely to end the cycle of drug use and crime and, thus, protect the community more effectively.
I must first consider whether Mr Donnelly is eligible for such an Order under the requirements set out in s 12A of the Sentencing Act.
The offence of aggravated burglary is an eligible offence, as are the offences of theft, damaging property, attempting dishonestly to take a motor vehicle without the owner's consent, taking such motor vehicle and driving it, obtaining property by deception, aggravated driving and driving whilst disqualified.
The sentence of imprisonment for the aggravated burglary offence is 18 months imprisonment, which is more than the minimum eligible sentence under s 12A of the Sentencing Act, and the total sentence of four years imprisonment is equal to the maximum eligible sentence.
Mr Donnelly is not currently subject to any other sentencing order within the meaning of that term within the s 12A of the Sentencing Act.
Mr Donnelly has pleaded guilty to each of the offences of which he has been convicted.
The Suitability Assessments advise that he is likely to suffer a severe substance use disorder and I am satisfied from that, and the other evidence that I have, that he is dependent on illicit drugs, especially methamphetamine.
The Crown has raised the question of whether Mr Donnelly's drug dependence substantially contributed to the offending he has committed. The Suitability Assessments record that he was under the influence of drugs at the time of the offending, and it was a sufficiently significant influence that he does not remember much at about the offending. I am satisfied that his drug dependency did substantially affect the offending behaviour.
I am satisfied that Mr Donnelly will live in the ACT for the next four years.
I am also satisfied that Mr Donnelly has had explained to him the nature and obligations of a Treatment Order, that he has had an opportunity to ask any questions that he may have about such an Order, or the requirements under it, and has had those questions answered. I am satisfied that he has consented to the making of such an Order.
Accordingly, I am satisfied that Mr Donnelly is eligible to be the subject of a Treatment Order. I turn then to whether I should make one.
As usual, I have received carefully prepared and expert Suitability Assessments which adequately address the relevant issues and have provided me with very helpful material from which to address this question. I note that all three reports have recommended that he is suitable to be subject of a Treatment Order, that an appropriate case plan has been prepared and that a residential drug rehabilitation placement is available.
Accordingly, after carefully considering the recommendations and noting that neither counsel raised any objection to the making of an Order, I am satisfied that it is appropriate to make a Treatment Order and I will do so.
Finally, I note that the sentence imposed today on Mr Donnelly has commenced on 8 January 2020. That is well before sentence is imposed today. He has, thus, served a significant part of it already and it can only be suspended from today, that is, it is partially suspended. I note, however, that, for the reasons set out in R v Crawford (No 1) [2020] ACTSC 254 at [91]-[111], this does not prevent me from making a Treatment Order.
Drug and Alcohol Treatment Order
[His Honour then again directly spoke to the offender]
Mr Donnelly, please stand again.
I make a Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) for you for two years from today, commencing 23 June 2021 and ending on 22 June 2023, in respect of the primary offence of aggravated burglary, of which you have been convicted and for which you have been sentenced to 18 months imprisonment.
I extend the Order to the associated offences to the primary offence, namely the offences of dishonestly riding in a motor vehicle, aggravated burglary, theft, damaging property, attempting to take a motor vehicle without consent, obtaining property by deception, taking a motor vehicle without consent on two occasions, aggravated dangerous driving and driving whilst disqualified, of which you have been convicted and for which you have been sentenced.
I note that the convictions for the primary offence and the associated offences have been recorded and that sentences have been imposed for each of them, which convictions and sentences are hereby incorporated into the Drug and Alcohol Treatment Order in the Custodial part of the Order.
The Custodial part of the Drug and Alcohol Treatment Order for the primary and associated offences is hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 23 June 2021, until 7 January 2024.
I require you to sign an undertaking to comply with the offender’s Good Behaviour Obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Drug and Alcohol Treatment Order, 23 June 2023, until the end of the total sentence, 7 January 2024, with a probation condition that you accept supervision by the Commissioner of ACT Corrective Services, or his delegate, for the period of the undertaking or such lesser period as the person supervising you considers appropriate, and obey all reasonable directions of the person supervising you, including as to urinalysis, counselling and treatment.
For the Treatment and Supervision part of the Drug and Alcohol Treatment Order:
(a)The core conditions of the Order, set out in section 80Y of the Crimes (Sentencing) Act 2005 (ACT), are hereby imposed;
(b)You are to travel directly from this Court to Canberra Recovery Services, Fyshwick, and admit yourself to the Residential Drug Rehabilitation Program at that facility by 1.00 pm today, 23 June 2021;
(c)You are directed to complete Residential Rehabilitation Program at Canberra Recovery Services, to not leave the facility until you have completed the course and to comply with all the directions of the person in charge of the program and all the rules of the program and the facility;
(d)Should you leave or be discharged from the program before completing it, you are to report to ACT Corrective Services by 4.00 pm on the next business day with a view to having your Drug and Alcohol Treatment Order reviewed;
(e)You are to undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that team about where you live, with whom you associate and any attendance on them, at Court, or elsewhere, from time to time;
(f)You are to comply with any directions of the Court from time to time about attendance at Court, in person or by electronic means.
You are directed to appear by electronic means in Court on Friday 2 July 2021 at 12.30 pm.
You are directed to attend the Court Registry before you leave the Court precincts to sign a sealed copy of this Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this Order is in force.
Mr Donnelly, that is a lot of words. You have been around the Courts long enough to probably understand most of it, but it is a lot of information to take in. I am required to explain the matter to you and there are some things I need to tell you.
The first thing is that I have considered is the offences you committed. That was a terrible spree of criminality over a few days at a time when people were meant to be enjoying themselves, Christmas Day and Boxing Day, and you smash up their cars, you enter their garages, you pinch money from them, you pinch other things from them, and so on and so on.
I have said that this offending justifies four years imprisonment. People might say that is lenient. Mr Elphick got a comparable sentence and I think that is fair in all the circumstances. Otherwise, I would not have imposed it.
Four years is a fairly lengthy sentence and that is hanging over you. You have spent quite a lot of that already in prison and you do not have to serve that again - you have served that. Now you have got to get on with the rest of your life.
I have accepted that you genuinely want to move on from that life. You have come to the right court for that. This Court will support you. We have got highly professional and committed people to assist you with that and you are going to a good agency that will help you, as it has helped many people, work through it.
This is not an easy thing that you can snap your fingers and say, 'I'm going to do it and get it done'. It will be difficult. If you put your mind to it, you will succeed as others have. There will be bumps on the road, there will be difficult times. If you get through them, that will make you stronger and make you more able to address those difficulties in the future. You, at the end of the day, have got to do it, but there will be people supporting you and this Court will support you as long as you do the right thing. If you put the effort into it, then you are likely to be able to get through it, but you have got to put the effort into it.
If it gets really too much, then come and talk to people about it. Do not bottle it up or worst of all - worst of all - do not run away. You cannot hide your head in the sand because, at the end of the day, you will be back in gaol. Back in the same old, same old, same old cycle and that is not what you want.
You want to connect with your family. You want to be a father to your daughter. You want to be a father to your new partner's kids. You want to do something useful in the community and your art is fantastic. We do recognise that in this Court. We have got another Aboriginal artist on the program who is doing very well who has produced some beautiful pictures for us. I have put them in the folder that I use every week to remind me about the great things our participants can do.
It is very easy to look at you as a criminal, as someone who does bad things. Yet you have got talents in there and if you work on those, then you can be proud of yourself, but also do something useful for the community. I enjoy looking at those artworks every week. They make me feel optimistic about what can be done. They make me feel happy about what the community can gain from people like you and so that is what you are doing it for. You are doing it for yourself, also for the community, but also for your family.
One of the really important things to do is to commit yourself to this time and work hard, but it will be hard. Do not listen to people who want you to use any more. Using is behind you now. Do not listen to people who want you to nick off and do something exciting. It is more exciting to do the things you can do, and can do well, than things that just lead you into trouble and lead you into difficulties.
The second thing that is really important is to be honest. That is hard. We all know. We all fool ourselves. We all pretend that we have not done bad things or we are not tempted, we are not worried, we are not hurt, we are not depressed, but unless you confront those things you will not be able to address them. They will eat away at you and you will not get through this. So be honest with yourself and be honest with other people.
Be honest with your counsellors. That is not so difficult, particularly with people you do not know well, because you can tell them all sorts of things and not feel worried about what they will think. Over time you will get confident in them, you will get to understand them, form a relationship with them and be able to talk to them about these difficult things. You will also share that with other people, other participants, other users who have gone through the same journey. They will help you through that. Peer support is fantastic. However, you may also worry about what they will think of you and so on. Forget about that. What you have got to do is for yourself.
The third really important thing is that you do not put your head in the sand. When things get tough, talk to your case manager, talk to your counsellors, come and talk to me. I am pretty important being a judge. I have got powers, not almighty powers, but it is amazing how, if I cannot solve something, I can often point you in a direction of someone who is expert, supportive and can help. Not everything can be solved. Sometimes you have just got to live with it, but come and talk about it.
Your counsellors and case managers will help you through this as well - because we want all you to succeed too. We want you to come out the other end as a different person. The kind of Daniel Donnelly that is going to be a good father, that is going to be a great artist, that is going to be a contributor to the community, perhaps even a great athlete. You never know. It depends where you want to go. So come and talk to us.
If you are worried about it because you are in Canberra Recovery Services and you do not want to say something in front of the counsellors there or any of the other participants, speak to your lawyer. It will not be Mr Robertson anymore, but there will be someone from Legal Aid. Mr Robertson is a very competent and experienced lawyer, but Legal Aid have good people too who are experienced and very competent also. Talk to them and they will help you to organise something so that you can talk to me. It will not be in private as there will be other people in the Courtroom, but not in front of the participants and so on if that is necessary.
I am not saying you need to do that, but if you feel uncomfortable, it is better to talk then to say, 'I cannot say it in front of people, therefore I'm not going to say it at all,' as then it eats away at you and becomes a problem.
It is a lot of stuff to take in. You will come back and see me, not this Friday but next Friday. It will probably be on that screen over there, via AVL, because we do not bring people in, generally, from residential rehab. Tell me how it is going, tell me what the challenges are, tell me what you need, tell me what you have done that is good, tell me what you are keen about and so on. Those are the things that we will talk about.
I hope your journey with us works. It is going to be a long journey. I have made the Order for two years because you have been in this situation ever since you have been about 13 years old. That is 12 years. That is a long time. It is going to take some time and some effort to get through. I hope you are committed to it. If you are not, well, you will go back to gaol and get on with it.
Again, do not run away. We catch you in the end. I was just dealing yesterday with someone who had been on the run for months and months, but we got him in the end. That is what happens, so there is no value in that. Let us do it honestly, frankly, upfront. Tell me it is too hard and we will see what we can do about it. There may be something we can do.
I hope it works for you. I wish you every good luck. I look forward to seeing you. I look forward to seeing what you can do. You may even give the Court a painting at the end of the program if you are happy to do that. You never know. So good luck.
I am sure your case managers and your lawyer will explain anything you do not understand, but put your heart into it and you will survive. You will thrive. You will do really well. So, good luck.
You will be taken to Canberra Recovery Services. Go straight there, get in there, get into it and get going. It is going to be different, but as you have been in jail, you can handle it. This is better than that, much better than that, and there is a promise and a hope. That is what you need to commit yourself to this.
I hope this works. We are putting a lot of faith in you. If it does not work, I am disappointed, it hurts me, but we move on. You are the one that will really most be hurt. You will hurt other people if you go onto crime, but you will hurt mostly yourself and, of course, your family. So work on it. Good luck.
We will see you in a week. You may be seated.
| I certify that the preceding one hundred and ninety-eight [198] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge Associate: L Ireland Date: 22 February 2022 |
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