R v GD
[2015] ACTSC 401
•2 November 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v GD |
Citation: | [2015] ACTSC 401 |
Hearing Date: | 23 October 2015 |
DecisionDate: | 2 November 2015 |
Before: | Penfold J |
Decision: | See [38] to [44] below. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – young offender to be sentenced for aggravated burglaries, thefts and dishonest use of motor vehicles – offences committed in breach of good behaviour order made in connection with suspension of sentence for aggravated robbery – later offences committed in breach of conditions on bail granted in respect of earlier offences – claim that offences committed under influence of methamphetamine – methamphetamine use begun despite successful completion of drug rehabilitation program – offender’s troubled relationship with father since parents’ separation – parity – pleas of guilty – difficulty in determining what might deter young offender – sentence imposed. CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – young offender to be sentenced for aggravated burglaries, thefts and dishonest use of motor vehicles – application for reparation order in respect of damage to vehicle – no basis for inferring that loss suffered by owner or insurance company arose out of offender’s dishonest use of vehicle concerned so as to satisfy criteria for making of order – reparation order refused. |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT), ss 19, 20, 133C, 133C(2), 133G, Chapter 8A Criminal Code 2002 (ACT), ss 308, 312, 318(2) |
Parties: | The Queen (Crown) GD (Offender) |
Representation: | Counsel Ms S Naidu (Crown) Mr R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 134 of 2015; SCC 135 of 2015 |
The offences
GD has pleaded guilty to six offences, which I shall refer to in these sentencing remarks as the new offences. They are:
(a)two aggravated burglaries arising under s 312 of the Criminal Code 2002 (ACT) and carrying a maximum penalty including 20 years imprisonment;
(b)one theft arising under s 308 of the Criminal Code and carrying a maximum penalty including 10 years imprisonment; and
(c)three offences involving dishonest use of motor vehicles without consent, arising under s 318(2) of the Criminal Code and carrying a maximum penalty including five years imprisonment and a licence disqualification (one of those offences involved riding in a vehicle, and the other two involved taking a vehicle).
One of the aggravated burglaries, and the theft, were committed on 6 April this year. GD and an unknown co-offender broke into a business in Mitchell and stole cash and goods worth just under $3,600 in total. GD was identified from CCTV footage.
The offence of dishonestly riding in a motor vehicle was committed on 9 April this year. GD and two other males were seen abandoning a gold Volvo that had been stolen five days earlier. The numberplates on the car had been replaced with plates from an unregistered vehicle.
On 14 April this year, GD, in company with two other males, broke into a garage in O'Malley and, acting jointly, took two Mercedes Benz vehicles. The Mercedes were in a locked garage with another car parked in front of the garage door. The offenders broke into the other car and drove it out of the way. They found the remote control for the garage door in that car, and when they opened the garage, it seems (although this is only an inference from the statement of facts) that they found the keys to the two Mercedes inside. Those two cars were then driven away by GD's two co-offenders, and GD drove the car that the three offenders had arrived in. GD was again identified from CCTV footage, and was later found in possession of keys to one of the stolen cars.
These offences put GD in breach of a good behaviour order that I made in November 2014 when sentencing him for an aggravated robbery. That robbery involved GD approaching several young men at the Belconnen skatepark and demanding cigarettes or money. He then produced a knife, and one of the young men handed over a single cigarette. For that offence he was sentenced to six months imprisonment, backdated to take account of time served and also to provide some concurrency with an earlier sentence, and suspended with three months still to serve.
As a result of that re-sentencing last year, GD was due to be released on 24 November 2014, at which point he would have had three months left to serve of the new sentence that I had imposed. It seems that, in fact, he remained in custody until 23 December under a separate sentence imposed in the Magistrates Court, and I shall take that into account in this sentencing.
As will emerge, GD has been in and out of custody since being arrested for the earlier of the new offences on 10 April this year. As at today, he has spent 166 days in custody that can be attributed to these charges. The sentences that I impose will take account of that time in custody, and there will also be further backdating to reflect that, as just mentioned, GD has already served three months of the six-month sentence I imposed in November last year.
GD pleaded guilty to the first set of charges quite early in the Magistrates Court, but pleaded guilty to the last three offences several months later and only after the matters were committed to this court for trial.
I should also mention at this point that it seems there may be some pending charges against GD in New South Wales, and some uncertainty about what might happen in relation to those matters when he is next released from custody in the ACT.
Evidence
As well as statements of facts for the new offences, the following material is in evidence before me:
(a)the statement of facts for the aggravated robbery to which the breached good behaviour order applies;
(b)a Criminal History dated 5 August 2015;
(c)a pre-sentence report prepared for Court on 23 October 2015, which attaches several earlier reports as well; and
(d)sentencing remarks made on the four previous occasions on which I have sentenced GD, being June and December 2012; September 2013; and November 2014;
all of which were tendered by the prosecution.
Defence counsel tendered a transcript of the hearing of a bail application made by GD in June this year, and relied on evidence given at that hearing by GD's Youth Justice supervisor, Mr Shields.
Objective seriousness
In considering the objective seriousness of the offences, I have had regard to the following matters:
(a)For both aggravated burglaries, the statutory aggravating factor was that GD was in company.
(b)The first aggravated burglary and associated theft were in many ways “routine” versions of the offences. They were committed in commercial premises and apparently at a time when the premises were unlikely to be occupied. The premises were damaged by the offenders in gaining entry, and goods to a significant but not extremely high value were taken.
(c)The O'Malley offences can be described as brazen, given that they were carried out around daybreak, while the owner of the premises was at home, and that they involved breaching a series of arrangements presumably intended by the victim to provide high security for his valuable cars.
(d)All the offences are aggravated by the fact that GD was on conditional liberty at the time, both under my November 2014 good behaviour order and, in the case of the O'Malley offences, under bail granted in respect of the earlier new offences.
(e)GD claims that he was affected by methamphetamines when committing all the new offences, and the pre-sentence report indicates that he has shown little remorse, or insight into the effect of his actions, except that he said that, as for all of his offending, he “feels bad” for the offences.
I consider the offences to be of slightly less than mid-range seriousness.
Subjective circumstances
I have also had regard in this sentencing to GD's subjective circumstances.
GD is now 17. His criminal history in the ACT consists mainly of dishonesty offences, being two aggravated robberies (one serious and one a minor example of the offence); two previous offences of riding or driving in a motor vehicle without consent; two offences of going equipped for theft; one minor theft; and one each of damage property, assault, and possess offensive weapon with intent.
GD came to Australia some years ago with his parents and siblings as refugees from Sudan. His parents' marriage broke down at some stage after that, and difficulties in GD's relationship with his largely absent father have been a constant theme running through recent sentencing proceedings.
GD began skipping school very early, and by 2011, the year he turned 13, he missed 15 weeks of school in total. Apparently largely as a result of falling in with the wrong crowd, GD had apparently begun using alcohol and cannabis at age nine, and increasingly socialised largely with other juvenile offenders. Not only did he miss a lot of school, but he spent extended periods living away from home, often in entirely unsatisfactory environments. I note, however, that I have heard nothing to suggest that there is anything in GD's home environment, where he was able to live with his mother and several siblings, that might explain his repeated absences.
GD's Youth Justice supervisor reported that GD is an intelligent young man who, during periods in custody, has managed to catch up with much of what he has missed through his frequent absences from school, and apparently at a remarkable pace. Sadly, however, he has in the last three years or so had quite a lot of time in custody in which to do that catching up.
I have already mentioned that there are difficulties between GD and his father; in summary, it seems that GD's father is unwilling or unable to provide the relationship that GD would like, and even when he agrees to see GD, tends not to follow through. As I have said previously, it is very unfortunate that GD has been deprived of the role modelling and support of a useful father-figure at a time when he so clearly needs help in the difficult job of growing up.
As already mentioned, GD has attributed his recent offending to having been affected by methamphetamine, but also claimed that the money he obtained through some of the offences was intended to be spent on more methamphetamine. He claimed that the Mercedes cars were stolen for "transport purposes only", but since he and his co-offenders arrived at the victim's premises in another vehicle, the need to take two further vehicles for “transport purposes” would seem to require more explanation.
Defence counsel submitted that GD was addicted to methamphetamine, but conceded that there was no proof of a genuine addiction as distinct from a fairly recently developed enthusiasm for repeated use of the drug.
GD has attempted a number of drug rehabilitation programs over the last few years, but without any apparent improvement in his position.
In June last year he completed a three-month residential rehabilitation program in Dubbo, but breached bail conditions shortly after returning to Canberra, including by resuming alcohol and cannabis use. Since then, he has begun using methamphetamines as well.
His Youth Justice supervisor noted in the bail hearing earlier this year that most drug users need several attempts at rehabilitation programs before they manage to maintain abstinence, but it has to be said that GD's attempts at rehabilitation do not even seem to be heading in the right direction, with his drug use becoming significantly more problematic despite successful completion of one rehabilitation program and attempts at others. In particular, at the June bail hearing, GD was granted bail to attend a further rehabilitation program, this time in Canberra, but left after 15 days and went missing for some time. On 6 August he was remanded in custody, and has been in custody ever since.
GD has recently expressed the view that he has now learned as much as he needs to from counselling and other rehabilitation programs and that his drug use will stop when he gets a job.
Other sentencing considerations
I understand that none of GD's co-offenders has yet been dealt with in relation to any of the new offences. The material before me shows that the co-offender identified in relation to the taking of the two Mercedes Benz vehicles was 22 at the time of the relevant offences. He has a lengthy criminal history, with a number of serious offences, including burglaries, aggravated burglaries, car thefts and assaults committed as a juvenile, as well as four burglaries, five thefts and a minor theft committed as an adult. He seems to have served several, albeit reasonably short, prison terms.
There is nothing in the statement of facts relating to the relevant offences that suggests that any one of GD and his co-offenders was more or less culpable than the others, but I shall have regard to the fact that GD was still only 16 when the new offences were committed, and that he has a criminal history covering a far shorter period than that of his identified co-offender; on the other hand, GD's juvenile criminal history may be more serious than the co-offender's juvenile criminal history.
As noted, GD's pleas of guilty to all the offences will be recognised by sentencing discounts, with slightly lower ones for the second set of offences, given that the pleas came later in the process. I shall also give GD credit for the extra month he spent in custody late last year after the point at which he would have been released under my order, but on the other hand I shall not give him any credit for his most recent 15 days in residential rehabilitation. That brief stay clearly did not improve matters, and it is hard to accept it even as a genuine attempt.
Other matters
Application for reparation order
The prosecution has applied for a reparation order, referring to a loss of something over $24,000 arising out of damage to the gold Volvo, that loss being shared between the car's owner and the insurance company. I decline to make such an order against GD, for several reasons.
First, even on the basis that GD was only liable to a reparation order for one-third of the loss (given that he had two co-offenders for the relevant offence), it seems to me that making a reparation order of roughly $8,000 against a 17-year-old would be ill-advised; the benefit of emphasising to GD that offending injures other people who deserve to be compensated would almost certainly be outweighed by the crushing nature of such an order – it would be years before GD could expect to be able to repay $8,000 by any legal means, and the existence of such an order could easily persuade him that there is no point in getting a job, or at least no point in earning any traceable income.
More significantly, I am not convinced that I have the power to make any such order.
The charge against GD in respect of the gold Volvo is that of dishonestly and without consent riding in the vehicle, which he and two co-offenders were seen abandoning five days after it was stolen. He has not been charged with stealing the car or with damaging it. Given that GD and his co-offenders were seen abandoning the car, I can see no reason why it should not have been recovered. Nor is there any evidence before me about what happened to the car such that despite that presumed recovery, the car's owner and the insurance company between them have suffered a loss of $24,000.
Therefore, there is no basis even for inferring that the damage happened as a result of GD's actions. The material before me does not establish that the loss was suffered as a direct result of the commission of any of the offences with which GD is charged (that is, the test set out in s 19 of the Crimes (Sentencing) Act 2005 (ACT)) or that I am about to convict him of "an offence against a Territory law in relation to stolen property" (the test set out in s 20 of the Crimes (Sentencing) Act).
Sentencing of young offenders
Next, I remind myself that GD is still a young person and that under Chapter 8A of the Crimes (Sentencing) Act:
(a)I must consider the sentencing purpose of promoting the rehabilitation of the offender and may give it more weight than any of the other purposes of sentencing set out in the Crimes (Sentencing) Act, as set out in s 133C of that Act; and
(b)that under s 133C(2) of that Act, I must have particular regard to the common law principle of individualised justice.
I further note, however, that it is very difficult in this case to work out the best way of promoting rehabilitation. It is particularly disheartening to hear, over and over again, that GD is an intelligent young man who understands the circumstances that put him at risk of offending, and then to observe that despite this supposed insight, GD continues to put himself into those circumstances and then to blame his offending on everything except himself. As already mentioned, GD's current view seems to be that when he gets a job he will stop using drugs and stop re-offending, but he seems to be thinking not so much of getting a job as of someone else giving him a job, and I find it hard to believe that he cannot see that his continued drug use and offending may be putting employment further and further out of his reach.
I also remind myself that in sentencing a young offender, a sentence of imprisonment must be a last resort and must be for the shortest appropriate term (under s 133G of the Crimes (Sentencing) Act).
Deterrence
It is clear that these are offences that call for general deterrence, and equally clear that GD is still badly in need of personal deterrence. How that is to be provided effectively is a more difficult question. Even noting that GD is still a young offender, I am satisfied that no penalty other than imprisonment would be appropriate for these offences.
Sentence
GD, please stand. I record convictions on two charges of aggravated burglary, one charge of theft, one charge of dishonestly riding in a motor vehicle without consent and two charges of dishonestly taking a motor vehicle without consent.
Those convictions put you in breach of a good behaviour order that I made on 4 November last year when I suspended the outstanding three months of a six-month sentence for aggravated robbery. I cancel the good behaviour order, and although you are to serve all the suspended part of that sentence, I shall re-sentence rather than imposing the original sentence to ensure that there is no confusion about the backdating.
Accordingly, noting the conviction for aggravated robbery that I recorded on 4 November 2014, I re-sentence you to six months imprisonment, backdated to 20 January this year to take account of time already served when the sentence was suspended, and also other periods of custody since the point at which that suspension was intended to come into effect. That sentence accordingly expired on 9 July this year.
Next, GD, for the new offences I sentence you as follows:
(a)for the first aggravated burglary, to 12 months imprisonment reduced from 16 months for your plea of guilty, backdated to 20 April this year, giving you three months concurrence with the previous sentence;
(b)for the associated theft, to six months imprisonment reduced from eight months, also backdated to 20 April this year, meaning that that sentence has already been served;
(c)for the first motor vehicle offence, to six months imprisonment reduced from eight months, which will start on 20 November this year and extend your total sentence by one month;
(d)for the second aggravated burglary, the O'Malley one, to 13 months imprisonment reduced from 16 months, backdated to 20 July this year, which means that it will extend your total sentence by three months; and
(e)for the two associated motor vehicle offences, to eight months imprisonment reduced from 10 months, each of which will also be backdated to 20 July this year and will therefore run entirely concurrently with the O'Malley burglary sentence.
Including the re-sentencing, that gives a total sentence of 19 months running from 20 January this year to 19 August next year.
However, to give you yet a further chance to achieve some genuine rehabilitation, and in the hope that you are ready to take advantage of that chance, the five sentences that have not yet been fully served will be suspended with effect from 20 December this year; that is, in about seven weeks, and I now order that you sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 12 months from the date the sentences are suspended.
The good behaviour order is subject to the conditions that, for such period not exceeding 12 months as Youth Justice considers necessary:
(a)you accept the supervision of Youth Justice and obey all reasonable directions of the Director-General, or delegate (that is, your Youth Justice supervisor); and
(b)you undertake such counselling, courses, programs or treatments as directed by your supervising officer, which may include, but are not limited to, participation in a residential rehabilitation program.
You will be given a written copy of the good behaviour order, and it will be read to you by the court officials, but in short it means that for a full year after you are released, you need to keep out of trouble, keep in close contact with your Youth Justice supervisor, or keep in whatever contact your Youth Justice supervisor wants, and do what he tells you to do. You will be aware that he can tell you things like where you have to live, who you are allowed to associate with, and when you have to do drug tests.
Especially I would recommend that you accept whatever kinds of rehabilitation activities you are directed to do, that might be counselling or residential rehabilitation, or even something else, and perhaps equally as importantly, GD, that you accept any help that is offered to you in terms of things that might help you find a job.
If you commit another offence during that 12 months, or if you breach your good behaviour order in some other way, for instance, by not living where you're supposed to live or by using alcohol or drugs or associating with the wrong people, you may find yourself back before this court to be re-sentenced for these latest offences, and as you well know, that is likely to result in yet another period of custody.
When you're eligible for release next month, you will have eight months of today's sentence still to serve. You know as well as I do that you are at serious risk of serving that in custody unless you really clean up your act this time, and that means, among other things, taking responsibility yourself for keeping away from drugs and other offenders and not just waiting around for other people to find you something else useful to do.
The other thing I should remind you of, GD, is that in less than a year you will turn 18, and any offending after you turn 18 could see you finish up in the AMC. I think you would find that a rather different experience from the experience you've so far had at Bimberi. You really need to think hard about that. I suggest you have a very careful talk with your lawyer, and ideally with your Youth Justice supervisor as well at some stage soon, because, GD, you really are running out of chances.
You may sit down.
| I certify that the preceding fifty [50] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: K Harris Date: 23 December 2015 |
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