R v Hall
[2015] ACTSC 115
•8 May 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Hall |
Citation: | [2015] ACTSC 115 |
Hearing Dates: | 17 April and 8 May 2015 |
DecisionDates: | 17 April and 8 May 2015 |
Before: | Murrell CJ |
Decision: | Seven days’ imprisonment for the offences of damage property and theft. 15 months’ imprisonment for the offence of attempt to take motor vehicle without consent, suspended upon the offender entering into a 12 month good behaviour order |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – damage property – theft – attempt take motor vehicle without consent – rehabilitation |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 12, 33 35 Criminal Code 2002 (ACT) ss 44(1), 308, 318(1), 403(1) |
Parties: | The Queen (Crown) Marley Hall (Offender) |
Representation: | Counsel Mr S McLaughlin (Crown) Mr M Toole (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 126 of 2014; SCC 127 of 2014 |
Murrell CJ:
The Offences
The offender adheres to pleas of guilty to the following offences committed on 26 October 2013:
(a)Damage property (two counts), (causing damage to two vehicles), contrary to s 403(1) of the Criminal Code 2002 (ACT) (the Criminal Code). The maximum penalty is 10 years’ imprisonment and/or a fine.
(b)Attempt to take motor vehicle without consent (one of the vehicles subject of the damage property offences), contrary to s 318(1) of the Criminal Code (by virtue of s 44(1)). The maximum penalty is five years’ imprisonment and/or a fine.
(c)Theft (taking a pair of sunglasses), contrary to s 308 of the Criminal Code. The maximum penalty is 10 years’ imprisonment and/or a fine.
The offender entered a plea of guilty in respect of all charges about six weeks before the trial was listed to commence and after plea negotiations. Pursuant to s 35 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), the appropriate discount is about 15%.
Background to the Offences
On 26 October 2013, between 4.15pm and 5pm, the offender attended commercial premises and went to the car park. He gained entry to a blue Ford Courier vehicle by smashing the driver's side window and then interfering with the driver's door locking mechanism. His palm print was left on the vehicle. This action is the subject of the first of the damage property charges.
He also gained entry to a white Toyota RAV4 by smashing the rear driver's side window and thereby gaining access to the vehicle. In attempting to start the vehicle without keys, he caused damage to the vehicle dash and ignition, rendering the ignition inoperable. His blood was left on the vehicle. This action is the subject of the second of the damage property charges and the attempt to take motor vehicle without consent charge.
He removed a pair of sunglasses from the Toyota RAV4 vehicle. This is the subject of the theft charge.
Reparation of $66 is sought in relation to the blue Ford Courier vehicle and $739.76 is sought in relation to the Toyota RAV4 vehicle.
Breach of Good Behaviour Order
The offender was on conditional liberty at the time of the offences. The offences put him in breach of a good behaviour order attached to suspended sentences imposed by Higgins CJ on 19 April 2013.
For the breach of the good behaviour order, on 4 July 2014, I re-sentenced him to an effective term of three years' imprisonment suspended after 18 months. Taking into account various periods spent in custody he was required to serve full-time imprisonment from 14 July 2013 to 13 January 2015. The remaining 18 months was suspended upon him entering into a good behaviour order for that period.
The offences that were the subject of the suspended sentence and the re-sentencing exercise had been committed in October 2012. They were offences of taking a motor vehicle without consent and aggravated robbery in company.
The offender has been in custody solely in relation to the offences before the Court today since 13 January 2015.
Objective Seriousness of the Subject Offences
The subject offences are of a relatively low objective seriousness. The offence of attempt to take the Toyota RAV4 without consent carries the lowest penalty of the three types of offence before the Court. Nevertheless, it is the most serious of the offences and the central offence. The offence is not of grave objective seriousness. It occurred in a car park in daylight. There is no suggestion that anybody was present. There was damage to the vehicle, but that is the subject of another count, so it is not to be taken into account in respect of this matter. However, the matter assumes some seriousness because the offender was on conditional liberty at the time for a similar matter.
Subjective Circumstances of the Offender
The offender is now 20 years of age. He was 18 years of age at the date of the offences. He is of Aboriginal background. His childhood home was marred by paternal alcohol abuse and domestic violence. He is the youngest of four children. He was raised in the Dubbo area. The offender had behavioural problems throughout school but these were never diagnosed or treated. He was excluded from school during Year 10 and he has ongoing problems with literacy and numeracy. He is single. He has never had stable employment; the most that he has undertaken by way of employment is two weeks' labouring work. His older two brothers have substance abuse problems and criminal records.
The offender suffered a head injury at 14 years of age, although he was not rendered unconscious. It is not known whether this has a continuing effect. The offender has a very serious problem with substance abuse. It is clear that by his mid teens the offender was a very heavy user of cannabis and alcohol. A CADAS report says that, at one stage, he was consuming up to three or four bottles of spirits daily and was a frequent user of ice. At one time he reportedly used ice on a daily basis.
The offender has mental health problems. These are not solely drug induced psychosis. He has complained of psychotic symptoms at times when he has not been taking drugs. He was diagnosed as suffering from a psychosis in 2011. The current diagnosis is schizophrenia in remission. He is not receiving anti-psychotic medication but appears to be stable in custody. Unfortunately, while in the community, he has been non-compliant with treatment for his mental health condition.
He has attempted rehabilitation on three occasions, without completing a program. Rehabilitation providers have terminated his programs because he has relapsed into drug use.
An updated Pre-Sentence Report, compiled in 2014, refers to the offender's limited insight into his mental health condition and into the relationship between drug abuse and mental health. The offender was assessed as being over confident in relation to the risk of drug relapse and recurrence of mental health problems. For these reasons, among others, he has been assessed as being at high risk of re-offending.
It is critical that the offender’s mental health condition and drug dependence be properly managed so as to reduce the risk of re-offending and enable him to obtain stable accommodation and employment.
Sentencing Act Considerations
I have taken into account the objective seriousness of the offences (which is low), the context that the offender was on conditional liberty at the time, the other relevant considerations provided in s 33 of the Sentencing Act and the sentencing purposes provided in s 7 of the Sentencing Act.
Given the offender's age and the danger that he represents to the community in the future if he is not rehabilitated, it is my view that, if appropriate conditions can be attached to a good behaviour order related to a suspended sentence, then that is the way in which I should proceed. The offender has already received some punishment by virtue of the fact that he has been in custody since 13 January 2015 on these offences alone.
In relation to the central offence of attempt to take a motor vehicle without consent the starting point for the sentence is 18 months' imprisonment, less 15%. The appropriate sentence is approximately 15 months' imprisonment.
Sentence
The offender is convicted of the offences of damage property (two counts) and theft. In relation to each of those matters, he is sentenced to seven days' imprisonment from 15 January 2015 to 21 January 2015 and I note that those sentences have been served.
I note that reparation is sought by the victims of the damaged vehicles but I decline to make a reparation order. There is no capacity in the short to medium term for the offender to make reparation and it would be counterproductive to his rehabilitation.
The sentencing with respect to the offence of attempt take motor vehicle without consent is adjourned until 8 May 2015. The offender is granted bail with respect to the offence of attempt take motor vehicle without consent. Bail is granted on conditions that:
(a)The offender is to be released from the Alexander Maconochie Centre (AMC) on 20 April 2015 after 9am.
(b)The offender is to reside with his mother.
(c)The offender is to be present at the residence of his mother between the hours of 8pm and 7am.
(d)The offender is to submit to the supervision of, and participate in programs and courses as directed by the Director General of Corrective Services or their delegate and submit to any direction of the Director General or their delegate, including submission to breath testing and urinalysis as directed by the Director General or their delegate.
(e)The offender attend upon a medical practitioner by 5pm on 24 April 2015, with a view to formulating a mental health treatment plan, unless ACT Corrective Services varies this date, and the offender is to follow that plan.
(f)The offender is to contact, and submit documents as requested by, Menslink Incorporated by 5pm on 24 April 2015 and undertake such activities as are recommended.
(g)The offender is not to consume alcohol or illicit substances (including cannabis) and is not to enter any bottle shop or licensed premises.
(h)The offender is to report to Eclipse House by 4pm on 20 April 2015, if that is reasonably possible, otherwise the offender is to report by 10am on 21 April 2015.
(i)At the next appearance in Court the offender is to:
(i)Present the Court with evidence of the treatment and other steps that he has taken to comply with the above requirements, and
(ii)Present the Court with a plan for his future treatment.
Proceedings on 8 May 2015
It was reported that, following release from AMC, the offender complied with the bail conditions: he resided with his mother, observed the curfew, did not consume alcohol or illicit substances or enter any bottle shop or licensed premises, and reported to and accepted the supervision of ACT Corrective Services. He did not engage with Menslink Incorporated. However, he engaged with a similar, more culturally appropriate organisation.
He has presented the Court with a proposed case plan for future treatment. I am satisfied that the proposed case plan will support the offender’s rehabilitation.
Given the offender’s compliance with the bail conditions, it is appropriate to impose the sentence that I indicated on the last occasion.
For the offence of attempt to take motor vehicle without consent, the offender is sentenced to 15 months’ imprisonment, backdated to commence on 4 February 2015. Pursuant to s 12 of the Sentencing Act, I make an order suspending the remainder of the sentence of imprisonment from today, 8 May 2015, and I impose a good behaviour order for a period of 12 months from today. The good behaviour order is subject to the following additional conditions:
(a)That the offender report to ACT Corrective Services at Eclipse House by 4pm today, 8 May 2015.
(b)That the offender submit to the supervision of ACT Corrective Services for as long as ACT Corrective Services considers necessary and work with ACT Corrective Services to implement the proposed case plan tendered in Court or such amended plan as is recommended by ACT Corrective Services
| I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 11 May 2015 |
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