R v Figura (No 1)
[2019] ACTSC 149
•6 June 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Figura (No 1) |
Citation: | [2019] ACTSC 149 |
Hearing Date: | 5 June 2019 |
DecisionDate: | 6 June 2019 |
Before: | Mossop J |
Decision: | See [64] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – property damage by joint commission – trespass – theft by joint commission – driving a motor vehicle without consent – dishonestly taking a motor vehicle without consent – prior criminal history of less serious offences – assessed as suitable to participate in residential rehabilitation program – preparation of an intensive correction order assessment report ordered |
Legislation Cited: | Crimes Act 1914 (Cth), s 16A Criminal Code 2002 (ACT), ss 308, 318(1), 318(2), 403 Public Order (Protection of Persons and Property) Act 1971 (Cth), s 11(1) |
Parties: | The Queen (Crown) Ashley Figura (Offender) |
Representation: | Counsel K Reardon (Crown) K Musgrove (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Offender) | |
File Numbers: | SCC 69 of 2019 SCC 132 of 2019 |
MOSSOP J:
Introduction
The offender, Ashley Figura, has pleaded guilty to the following offences:
(1) property damage (by joint commission) on 16 December 2018 (CC2019/6376), contrary to s 403 of the Criminal Code 2002 (ACT), the maximum penalty being is 10 years imprisonment, a fine of 1000 penalty units or both;
(2) trespass on 16 December 2018 (CC2019/6378), contrary to s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth), the maximum penalty being a fine of 10 penalty units;
(3) theft (by joint commission) on 16 December 2018 (CC2019/3169), contrary to s 308 of the Criminal Code, the maximum penalty being 1000 penalty units, imprisonment for 10 years or both;
(4) driving a motor vehicle without consent on 16 December 2018 (CC2019/1335) contrary to s 318(2) of the Criminal Code, the maximum penalty being 500 penalty units, imprisonment for five years or both;
(5) a further charge of driving a motor vehicle without consent on 16 December 2018 (CC2019/1337);
(6) a further charge of property damage (by joint commission) on 17 December 2018 (CC2019/6377);
(7) a further charge of trespass on 17 December 2018 (CC2019/6379);
(8) a further charge of theft (by joint commission) committed on 17 December 2018 (CC2019/3170);
(9) dishonestly taking a motor vehicle without consent on 17 December 2018 (CC2018/14895), contrary to s 318(1) of the Criminal Code, the maximum penalty being 500 penalty units, imprisonment for five years or both;
(10) a further charge of trespass on 19 December 2018 (CC2019/6380); and
(11) a further charge of theft (by joint commission) committed between 18 and 19 December 2018 (CC2019/3171).
In relation to all of the charges except CC2019/6376-CC2019/6380, the offender pleaded guilty in the Magistrates Court prior to the preparation of a brief of evidence. Charges CC2019/6376-CC2019/6380 were laid as replacement charges to two counts of aggravated burglary in relation to which the Director will file a Notice Declining to Proceed. The offender had pleaded guilty to the aggravated burglary charges in the Magistrates Court prior to the preparation of a brief. In those circumstances, all of the pleas of guilty should be treated as having been entered at an early stage and I will allow a discount of approximately 25% upon the custodial sentences that I would have otherwise imposed by reason of those early guilty pleas.
All of the offences except the trespass offences are to be dealt with under the Crimes (Sentencing) Act 2005 (ACT). The trespass offences are Commonwealth offences and must be dealt with under the Crimes Act 1914 (Cth), most particularly s 16A.
Facts
In the early hours of the morning of Sunday, 1 December 2018, unknown persons entered the secure yard of SnowMax Civil, an engineering and road plant company, located at Underwood Street, Beard in the Australian Capital Territory (ACT) after cutting the chains and padlocks on the front gates.
At this time, two vehicles were stolen from the location, a Blue Ford Falcon, with a New South Wales (NSW) registration plate, and a white Ford Falcon utility with a NSW registration plate.
On Monday, 2 December 2018, unknown persons returned to the SnowMax Civil location and stole a further vehicle, being a Red Holden Commodore Ute with a NSW registration plate.
The Operations Manager of SnowMax Civil provided closed-circuit television (CCTV) video to police. No people were able to be identified from the CCTV recorded at the location.
16 December offences (property damage, trespass, theft, dishonestly drive motor vehicle without consent)
About 4:30pm on Saturday, 15 December 2018, staff members at Pickles Auctions located on Gladstone Street, Fyshwick ACT, secured the location and switched on the alarm. The location was secured by a chain-link fence and electric fence which surrounded the entire facility.
About 4:00am on Sunday, 16 December 2018, the offender and co-offender, David Peadon, entered the Pickles vehicle yard by cutting the rear chain-link fence of the location and using a wooden plank to push down the wire of the electric fence. This resulted in the wires touching and therefore shorting the system. For reasons unknown the alarm system failed to sound.
Between 4:00am and 4:40am, a number of vehicles were removed from the yard with the first vehicle ramming the gate on Gladstone Street, causing the gate to be forced open and causing substantial damage. The damage to the chain-link fence and gate gives rise to the charge of property damage (CC2019/6376). The entry onto the premises without the consent of the owner constitutes the trespass (CC2019/6378).
CCTV footage from the shop adjacent to the Pickles Auctions site exit shows the offender and the co-offender Mr Peadon exiting the site in motor vehicles before running back to the location and exiting in further motor vehicles. This process was repeated until a total of seven motor vehicles were stolen from the Pickles secure yard in the 40 minute period. The following vehicles were stolen:
(1) Red Holden HSV ClubSport;
(2) Grey Jeep Wrangler;
(3) White Subaru WRX;
(4) Silver Hyundai Santa Fe;
(5) Black Holden HSV;
(6) Grey Subaru Liberty; and
(7) White BMW 135i.
The theft of these vehicles gives rise to the charge of theft by joint commission (CC2019/3169).
Australian Federal Police (AFP) crime scene investigators attended the location and processed the area that had been disturbed by the offenders, including vehicles which had been moved to access the vehicles which had been stolen.
They recovered a number of shoe prints belonging to Nike Shox NZ work boots and Adidas X_PLR trainers for forensic analysis.
The regional manager of Pickles made contact with a security firm who informed him that the alarm had been armed on the Saturday afternoon, however had failed to activate when the electrical wires running through the fence were cut or touched to make them short-out as they were programmed to do.
The security firm arranged for a security guard to attend the Pickles Auctions site and to remain overnight the following night within the secure yard at the rammed gate on Gladstone Street.
Police reviewed CCTV of the neighbouring carpark at that location for the time of the Pickles theft. The CCTV footage showed the defendant drove a white Ford Falcon Utility into the carpark, whilst the co-offender Mr Peadon pushed and directed that car. Approximately 10 minutes later, the offender is seen to drive and park a red Holden Commodore Utility.
The red Holden Commodore Utility and the white Ford Falcon were identified as being stolen during the burglary at SnowMax Civil on 1 and 2 December 2018.
The CCTV footage shows the defendant driving both cars. The driving of the white Ford utility gives rise to the charge of dishonestly driving a motor vehicle without consent (CC2019/1335). The driving of the red Holden Commodore gives rise to the charge of dishonestly drive a motor vehicle without consent (CC2019/1337).
The CCTV footage further shows the offender and co-offender driving vehicles the same as those stolen from the Pickles Auctions theft and parking them in a car park on Gladstone Street, Fyshwick.
17 December 2018 (property damage, trespass, theft)
About 2:00am on Monday 17 December 2018, the offender and co-offender Mr Peadon cut the chain link fence at the same location as the previous night and entered the Pickles secure vehicle yard. The Agreed Statement of Facts does not make it clear what the security guard whose presence had been arranged was doing at the time when the offenders enter the premises.
The offenders cut a portion of the chain link fence large enough to drive a vehicle through and built a makeshift ramp to get over a low brick wall. The damage to the chain-link fence gives rise to the charge of property damage (CC2019/6376). The entry into the premises without consent gives rise to the charge of trespass (CC 2019/6378). A further two vehicles were stolen from the yard, exiting through this section of fence and leaving through an adjoining driveway. The vehicles were:
(1) a White Land Rover Discovery Sport; and
(2) a Blue Toyota LandCruiser.
The theft of these vehicles gives rise to the charge of theft (CC2019/3170).
18 December 2018 (dishonestly take motor vehicle without consent)
On Monday 17 December 2018, the Canberra Motorcycle Centre racing team packed a B-Double transport truck with motorbikes and equipment for departure from the ACT on 18 December 2018. Included in the rear of the truck was a blue Suzuki GSXR1000 Australian Racing Motorcycle, with the number 30 on the front, belonging to Dale Brede, with the estimated value of $50,000.
The truck was secured with padlocks and left unattended in Quilpie Crescent, Fyshwick, ACT.
At about 2:40am, the truck parked on Quilpie Street, Fyshwick, was forced open. The Suzuki GSXR1000 motorbike was subsequently removed and stolen.
About 8:25am on 18 December 2018, police viewed CCTV footage of the theft of the motorcycle.
The footage shows that the vehicle used in the offence was a white BMW 135i, being one of the vehicles stolen from the Pickles Auctions site.
The footage shows an unidentified male driving the BMW.
The footage shows a second vehicle, a white Toyota Utility, which was driven by the co‑offender Mr Peadon.
The footage also clearly shows the offender riding the Suzuki GSXR1000 motorbike without a helmet. This gives rise to the charge of dishonestly taking motor vehicle without consent (CC2018/14895).
Later that day, police observed four of the vehicle that had been stolen from Pickles Auctions to be present at the offender’s address in NSW.
19 December 2018 (Trespass, theft)
At about 8:26am, Wednesday, 19 December 2018, police were called to attend an address in Newcastle Street, Fyshwick ACT in relation to a burglary at a business known as GuIson Car Sales.
On arrival, police spoke to an employee who said that a 2012 BMW I Series M had two rear wheels including tyres stolen sometime between 6:00pm, Tuesday 18 December 2018 and 8:00am, Wednesday 19 December 2018.
The wheels were described as 19 inch BMW wheels with Michelin brand tyres fitted.
Police viewed CCTV footage of the theft and saw the offender and co-offender Mr Peadon enter the yard at 4:52am on Wednesday, 19 December 2018. This gives rise to the offence of trespass (CC2019/6380).
The offender and co-offender left the area with two 19 inch BMW wheels with Michelin brand tyres. The theft of the wheels and tyres gives rise to the offence of theft (CC2017/3171).
20 December 2018
On 20 December 2018, police executed a search warrant at the offender’s residence in Crestwood NSW. At the premises, police located most of the stolen cars and the stolen motorbike. The location of these vehicles reduced the losses of the victims of the offending. Police also located a CCTV recorder which they examined and found that it showed the offender and his co-offender driving vehicles identified as stolen from the SnowMax and Pickles Auction yards and parking them in the rear yard of the premises.
Objective seriousness
So far as the offences committed on 16 December 2018 are concerned, my assessment of the objective seriousness of those offences is as follows. The trespass involved entry onto commercial premises at night. It involved no interaction with any person on the property. The entry was for the purpose of committing further criminal offences. I assess it as being in the mid range of objective seriousness for this offence.
The property damage charge relates to the damage to the chain-link fence and the gate. The damage to the gate is described as being substantial. There is no evidence of the cost of repairs and no photographic evidence that would give a better understanding of the extent of the damage. Having regard to the unlimited range of property damage which this offence may cover, I assess the objective seriousness of the offence in the present case as being at the low end of the range.
The theft charge relates to the theft of seven motor vehicles. There is no evidence of the individual or collective value of these vehicles. It is clear that they were in driveable condition. The theft of those vehicles took place deliberately over a 40 minute period. Having regard to the nature of the items stolen and their number, I assess this as being in the mid range of objective seriousness for this offence.
The two offences of dishonestly driving motor vehicles without consent relate to the period of driving shown on the CCTV cameras of the car park neighbouring the Pickles Auction site. Thus the period of driving is short. However, it is clear that the vehicles were driven in order to get to the location of the crimes that were then committed. I assess each offence as being in the low to mid range of objective seriousness for this offence.
In relation to the offences committed on 17 December 2018, the property damage charge is in the low range of objective seriousness for that offence and less serious than the earlier charge. The trespass charge is in the mid range of objective seriousness. The theft charge is also in the mid range of objective seriousness. While it involved fewer vehicles it was clearly premeditated having regard to the events of the night before.
The charge of dishonestly taking motor vehicle without consent on 18 December 2018 is in the high range of objective seriousness for this offence. The vehicle was a valuable one which had a specialised purpose. The offence was taking rather than merely driving the motor vehicle.
In relation to the trespass committed on 19 December 2018, there is nothing in the Agreed Statement of Facts about what was required in order to trespass on the property, although clearly the purpose was to investigate or undertake criminal activity. I assess it as being in the low to mid range of objective seriousness for this offence. The theft on that day is in the low range of objective seriousness having regard to the nature of the items stolen and the absence of any evidence as to their particular value.
Subjective circumstances
The subjective circumstances of the offender are disclosed in a pre-sentence report dated 24 May 2019. He is almost 25 years old. He is the only child of his parents. He does however have three half‑siblings. His father is deceased. He identifies as indigenous but has no significant links with or involvement in the indigenous community.
He had a long-term relationship from the age of 16 to 21 years old and had one child with that partner. He has a co-parenting arrangement with that ex-partner.
He has another child with his current partner with whom he has been in relationship for three years. Although Children and Youth Protection Services were involved with that child, the child is presently in his partner’s custody.
The offender completed Year 10 and commenced an engineering apprenticeship in 2015 but left this position due to the birth of his child. He was then employed in various positions although prior to his detention he was receiving social security payments. He disclosed that some of his acquaintances and friends were involved in criminal activities. He reported no involvement in any organised social activities.
He experimented with methamphetamine during 2013 and was using the substance daily prior to his admission to the Alexander Maconochie Centre. He was assessed as suitable for admission to Arcadia House’s transition program. He has a history of suicide attempts while in custody but not recently. He accepted responsibility for his offending behaviour and acknowledged that it was motivated by his need to support his use of illicit substances. He was able to identify the impact of his offending upon the victims of his offences. He is assessed as being at a medium to high risk of general reoffending. He was assessed as not suitable for a community service work condition. Material tendered on behalf of the offender indicates that he has been assessed as suitable to participate in the 12 week Arcadia House program run by Directions ACT. That is eight weeks of a residential program followed by four weeks of a day program. He has completed various educational courses in prison.
Criminal history
The offender’s criminal history discloses that the present offending reflects a departure from his past offending both in terms of subject matter and gravity. His criminal history in NSW is consistent with the material in the pre-sentence report which indicates that he commenced using methamphetamine in 2013. In 2013 he has a conviction for possessing a prohibited drug. In 2015 he has a conviction for driving with an illicit drug present in his blood. In 2016 he has a conviction for driving a motor vehicle and menacing another and two convictions for driving with an illicit drug present in his blood. He also has a conviction for destroying or damaging property.
In the ACT he has convictions in 2016 for common assault and damaging property. In 2017 he has convictions for driving while suspended and aggravated furious, reckless or dangerous driving. In 2018 he has further driving offences, driving while disqualified, riding or driving a motor vehicle without consent and aggravated furious, reckless or dangerous driving. It was for these last offences which he received his first custodial sentence which was an aggregate period of nine months.
Plea of guilty
The offender pleaded guilty to the charges in the Magistrates Court on 27 March 2019. I will allow a discount of 25% on the custodial sentence that I would otherwise have imposed. So far as the Commonwealth offences are concerned, those are fine only offences and I have taken the guilty plea into account as reflecting the acceptance of responsibility by the offender and his facilitation of the course of justice in entering a plea at an early stage.
Time in custody
The offender has spent 154 days or five months and three days in custody attributable to these offences prior to today. I will take that period into account and backdate the sentences that I impose so that they commence on 3 January 2019.
Consideration
The offending in the present case is very serious offending. It involves a significant escalation of his offending conduct when compared with the offences on his record. His criminal offending is temporally associated with his commencement of use of methamphetamine.
The offender is a relatively young man. The period of full-time imprisonment, which he served in 2017 and 2018, was not sufficient to deter him from offending conduct. There is no evidence that any concerted effort has been made to eliminate his methamphetamine addiction. His criminal history is not such as to indicate that he is beyond hope. The fact that he has a young child and remains in a relationship with that child’s mother are also factors which give rise to hope and a potential that the punishment for this very serious offending, which he has now engaged in, will provide an opportunity for rehabilitation. Unfortunately, if he does not take the opportunity available to him to get off methamphetamine and remain free of further offending, then his prospects and the prospects of, most clearly, his youngest child will be significantly bleaker.
In relation to the Territory offences, having considered the available sentencing alternatives I consider that only custodial sentences will appropriately reflect the gravity of the offending conduct in the circumstances of the offender. The trespass offences may be appropriately dealt with by fines.
The sentences that are to be imposed will involve a significant degree of concurrency. That concurrency reflects the close relationship between the offences committed on a single day. It also reflects the fact that the crime spree in which he and his co-offender engaged occurred over a relatively short period and the totality of the sentence imposed must not be disproportionate to the overall course of conduct.
Counsel for the offender submitted that having regard to the personal circumstances of the offender and the relationship between methamphetamine use and his offending conduct, this would be an appropriate case in which to order an intensive correction assessment. Counsel for the Crown did not oppose this course but reserved the Crown’s position as to whether or not the making of an intensive correction order would be appropriate.
On the charge of theft of the seven motor vehicles the starting point is a sentence of imprisonment of 30 months reduced to 23 months on account of the plea of guilty. On the damage property charge relating to the fence and the gate, the starting point is a sentence of eight months reduced to six months on account of the plea of guilty. This will be cumulative as to one month upon the previous sentence. On the charges of dishonestly driving a motor vehicle, the starting point is eight months reduced in each case to six months on account of the plea of guilty. The first of these will be cumulative as to one month upon the sentence for the damage property charge and the second will be cumulative as to one month upon the first.
On the second damage property charge relating to the fence at the Pickles property, the starting point is seven months reduced five months on account of the plea of guilty. This will be cumulative as to three months upon the previous sentence reflecting as it does the start of a new occasion of offending. So far as the theft of the two vehicles is concerned, the starting point is 24 months reduced to 18 months on account of the plea of guilty. This sentence will be cumulative as to nine months upon the previous sentence. On the charge of dishonestly taking the motorcycle without consent, the starting point is a sentence of 24 months reduced to 18 months on account of the plea of guilty. The sentence will be cumulative as to nine months upon the previous sentence. On the count of theft relating to the tyres and wheels the starting point is a sentence of six months reduced to four months on account of the plea of guilty. Even though this reflects a new occasion of offending, it will be cumulative by only one month upon the previous sentence because of issues of totality.
On each of the Commonwealth offences, having regard to the custodial penalties that will be imposed in relation to the related offences, I will impose a fine of $500.
This gives a total aggregate sentence of 48 months. The question is how this custodial sentence should be served. In the circumstances the options are by full-time detention, a partially suspended sentence or by way of intensive correction. In my view, it is appropriate to obtain an intensive correction assessment. The aggregate sentence is just within the period in which an intensive correction order is available. The principal criminogenic risk is a return to illicit drug use. An intensive correction order may be an appropriate order to make so as to minimise the prospect of the offender returning to illicit drug use and maximise the possibility that he can build for himself a stable law‑abiding life. I will consider any further submissions of the parties about the appropriate disposition once an intensive correction assessment is available.
Orders
64. The orders of the Court are:
1. The proceedings are adjourned to 9.30am on Friday, 2 August 2019.
2. An intensive correction assessment is to be prepared in relation to the offender.
| I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 9 September 2019 |
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