R v Hanrahan
[2020] ACTSC 10
•3 February 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Hanrahan |
Citation: | [2020] ACTSC 10 |
Hearing Dates: | 3 February 2020 |
DecisionDate: | 3 February 2020 |
Before: | Elkaim J |
Decision: | See [18] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – intent to cause harm – in company |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33 |
Parties: | The Queen (Crown) Kale Hanrahan (Offender) |
Representation: | Counsel E Wren (Crown) K Archer (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Tu'ulakitau McGuire Lawyers (Offender) | |
File Numbers: | SCC 231 of 2019 |
ELKAIM J:
On 10 September 2019 the offender pleaded guilty to one charge of aggravated burglary in the Magistrates Court. He was committed for sentence on the same date. His plea was at an early stage and although the Crown case is very strong, the offender is entitled to a discount, which I assess at 25%.
The offence is contrary to s 312 of the Criminal Code 2002 (ACT). It carries a maximum penalty of 20 years imprisonment, a fine of $320,000 or both.
The facts are as follows. At about 5:00am on 3 April 2019 the offender, in company with four other individuals, went to a residence in Chisholm in the ACT. The quintet was disguised. They broke into the residence and made demands for money, apparently arising from a dispute about payment for drugs. There were scuffles within the house, resulting in minor injuries. The police were called and the criminals fled. Unfortunately for the offender his face covering came off and he was able to be recognised. His colleagues have never been identified.
The offender was born in the United States of America in 1998. He came to Australia as a child and had a positive upbringing with his three siblings. He still lives with his parents.
Although there were some hiccups at school the offender was able to complete Year 12. There is a suggestion that he became involved with an outlaw motorcycle gang but he denies this. Having heard from his father, who described the manner in which he came to be employed, I am satisfied that there was no association with such a gang.
He has used illegal drugs but maintains that his use has ceased. It seems that he has, for the most part, also stopped drinking alcohol. He does not have any physical or mental health issues.
According to the pre-sentence report, the offender has taken responsibility for his actions and displayed remorse. He says that at the time of the offending he was affected by alcohol and drugs. This of course is not an excuse but does explain to some degree, his actions. He also recognised that his colleagues were unsavoury persons and he no longer associates with them.
I think it is a sign of his genuine remorse that even before the police arrived, the offender had accurately told his mother that he had “done something stupid”.
The offender has a small criminal history relating to some driving offences. One of the punishments involved a good behaviour order which must be dealt with as part of the current orders. The Crown has very fairly suggested that I might take no action in that respect.
There are two victim impact statements. A woman who was present in the house says she has been left “considerably affected”. She has lost the feeling of safety in her home, the place where she is “supposed to feel comfortable, safe and untouchable”. She also describes some financial implications that have arisen from the assault.
The second victim impact statement raises some of the same sentiments as the first. The author refers to the sanctity of her home and the effect the attack had on her daughter. She describes some of the damage done to her home and to her motor vehicle.
It is difficult to know what part, if any, illegal drug activities could be attributed to any resident of the premises. What is certain, however, is that the attack was unwarranted, terrifying to the residents and likely to affect them for some time into the future.
This was an objectively serious offence involving the invasion of a home. Whatever the involvement of one or more of the residents, there were innocent people affected. Young men must understand that this kind of criminal conduct is not only unacceptable but will result in severe punishment.
Were it not for the subjective circumstances of this offender he would unquestionably be facing full-time imprisonment. Sentencing is a balancing act in which competing demands must be taken into account. Sections 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT) set out the principles and objects of sentencing. The factors in s 33 are also important, as is the overriding exhortation in s 10. The latter says a person should not be sent to prison except as a last resort.
In this case general deterrence and the nature of the offence compel the imposition of a term of imprisonment. On the other hand, the offender is in full-time employment, effectively has no criminal record and has excellent chances of rehabilitation.
I think the appropriate term of imprisonment is 2 years, but this will be reduced to 18 months because of the discount mentioned above. I think there needs to be an order for community service, as well as general supervision by the Director-General of ACT Corrective Services. I will leave the conditions of the good behaviour order to the Director‑General.
The offender has spent three days in custody, so I will backdate the commencement of the sentence by three days. I will also make a reparation order arising from the damage to the house.
Orders
I make the following orders:
(a)For the offence of aggravated burglary (CC2019/4064), the offender is sentenced to 18 months imprisonment commencing on 31 January 2020 and ending on 30 July 2021.
(b)The above sentence of imprisonment is suspended with immediate effect on condition that the offender enter into a good behaviour order for a period of 2 years and that he undertake 200 hours of community service to be performed within 18 months.
(c)No action is taken on the breach of the good behaviour order (CC2018/7966).
(d)A reparation order is made in the sum of $198.00 to be paid within 2 months.
| I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: 3 February 2020 |
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