R v HD
[2015] ACTSC 246
•5 August 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v HD |
Citation: | [2015] ACTSC 246 |
Hearing Date: | 29 July 2015 |
DecisionDate: | 5 August 2015 |
Before: | Penfold J |
Decision: | See [39] to [43] below |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – 22-year-old offender to be sentenced for receiving stolen property and dishonestly riding in a motor vehicle – offences committed in breach of good behaviour orders – one good behaviour order made on suspension of sentence of 18 months imprisonment for being knowingly concerned in attempted armed robbery – good behaviour order cancelled – offender re-sentenced for earlier offence – sentences for new offences partly accumulated on re-sentence – need for extended period of supervision in the community – short non-parole period set. |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), s 47 Criminal Code 2002 (ACT), ss 313 and 318(2) |
Parties: | The Queen (Crown) HD (Offender) |
Representation: | Counsel Ms A Jamieson-Williams (Crown) Ms S Saikal (Offender) |
| Solicitors ACT Director of Public Prosecution (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 96 of 2015 |
Introduction
HD has pleaded guilty to one offence each of dishonestly receiving stolen property and dishonestly riding in a motor vehicle. These offences arise under ss 313 and 318(2) of the Criminal Code 2002 (ACT) and carry maximum penalties respectively including imprisonment for 10 and 5 years.
Convictions for these offences will put HD in breach of two good behaviour orders, one of which I made in July 2014 in connection with a suspension of just over 18 months of a 20-month prison sentence for an offence of being knowingly concerned in an attempted aggravated robbery (59 days of that sentence had already been served in pre-sentence custody).
The other good behaviour order, for 12 months, was made by a Magistrate in August 2014 after convicting HD of an offence of possessing a drug of dependence being methamphetamine.
The offences
The current offences were committed in February this year. A house in Farrer was burgled and the key to the occupants’ Volvo, as well as the Volvo itself, were taken. About a week later the Volvo, with stolen number plates, was found parked in the back yard of a house in Richardson. HD was inside the house with the Volvo key in his pocket. He admitted to riding in the stolen car, and to taking possession of the car knowing that it was stolen. He also gave police the name of the person who he said had given him the car and the key. It is not clear whether this information facilitated any further progress in finding those responsible for the burglary and the damage to the vehicle.
There was some dispute at the hearing about whether HD had in fact only received the Volvo and its keys on the day police found him in possession of the car, but it seems to me that when he received the car makes no particular difference to his culpability, and there is no evidence before me establishing that he used the car, or obtained any particular benefit from having it, before the day on which the police found him with it.
HD was arrested on 25 February 2015 and has been in custody ever since, a period of just over five months. Having regard to the 59 days he had served in custody before I sentenced him last year, the backdating date in relation to the sentence suspended last year would be 28 December 2014.
HD pleaded guilty to the charges on the second mention in the Magistrates Court, being 13 March 2015, and was committed to this court for sentence. This is an early plea of guilty.
Evidence
As well as the statement of facts, the following material, all tendered by the prosecution, is in evidence before me:
(a)HD's criminal history;
(b)four pre-sentence reports, two prepared for the July 2014 sentencing and two prepared for the current sentencing;
(c)statements of facts relating to the attempted aggravated robbery and the drug possession offences; and
(d)a copy of the remarks I made when sentencing HD last year.
The prosecutor also tendered a Victim Impact Statement. It related to the burglary in which the keys to the car were stolen, and to damage done to that car. It did not reflect any awareness on the part of the writer of the Victim Impact Statement (the owner of the house that was burgled) of the existence of HD or of his role in events after the keys and car were stolen.
HD has not been charged with the burglary or with having damaged the car, and the statement of facts in relation to the current offences is consistent with him not being involved in either the burglary or damaging the car. Under s 47 of the Crimes (Sentencing) Act 2005 (ACT), a Victim Impact Statement is to contain details of any harm suffered by the victim because of the offence. "Because of" is defined to mean as a result of or in the course of the commission of the offence.
Given that HD's offences were committed after the burglary, and there is no suggestion that the keys and car were stolen to order, I cannot see how the harm suffered because of the burglary could be said to have been suffered as a result of, or in the course of, HD receiving the stolen car and keys. There is also no basis in the evidence for accepting that HD was involved in damaging the car, so no basis for finding that the harm caused by the damage was as a result of, or in the course of, the commission of either of HD's offences.
Accordingly, I did not admit the Victim Impact Statement.
Objective seriousness
In considering the objective seriousness of these offences I have had regard to the following matters.
First, the offences were aggravated by the fact that they were committed less than a year into a three-year good behaviour order that I made last year when suspending HD's sentence, as mentioned, for being knowingly concerned in an attempted aggravated robbery.
Defence counsel submitted that in the absence of any evidence of what HD's intentions were for the stolen car, I cannot assume his actions to be a serious example of the receiving offence. This is correct as far as it goes, but nor am I obliged to assume that it was a low-level example of the offence – I shall sentence HD on the basis that he intended to use the car for his own convenience, either indefinitely or for a period reflecting only his own needs or possibly the risks of being detected in possession of the car. I accept, however, that there was no evidence that the car had been, or was to be, used in the commission of other separate offences.
The pre-sentence report author reported that HD accepted responsibility for the offences, expressed empathy for the victim, and said that he was disappointed that he had committed the offences, although this may have been partly related to the effect of those offences on the suspension of his earlier prison sentence.
The car was recovered from HD's possession. There is no evidence before me of loss or damage resulting from HD's involvement with its theft, and no claim for reparations.
Each of these offences is, in my view, of low to mid‑range seriousness.
Subjective circumstances
I have also had regard in this sentencing to HD's subjective circumstances.
HD is 22. He was 18 when he committed the offence for which I sentenced him in July last year. Apart from that and the other previous offence already mentioned, his criminal history in the ACT consists of an attempted aggravated robbery offence and an assault occasioning actual bodily harm committed as a juvenile (and for which no convictions were recorded), and two traffic offences as an adult. There has been one previous breach of a good behaviour order.
HD unfortunately grew up in a family home characterised by criminal activity and, I am told, by police raids of the family's home, particularly relating to drug use. It is unsurprising that he appears to have used drugs, including methylamphetamine, since he was 18. He remains close to his mother, and hopes to live with her again when he is next released, but it is hard to imagine that his mother is a good influence on him or provides an environment that discourages criminal activity. Counsel for HD pointed to the fact that his mother had some time ago been sentenced for an offence which was aggravated by the presence of HD (then aged 16) in the house while the offence was committed; his counsel noted that exposing children to criminal activity tends to affect them negatively. HD, in my view, deserves a degree of leniency in recognition of an upbringing in which he had no model of a law-abiding approach to life, and for the same reasons also deserves as much rehabilitation and support as can be provided by a suitable sentence in this matter.
I have little information about HD's education, but the pre-sentence report author reported that HD's former employer in a car detailing firm said in April that HD was an efficient worker and would be given work again on his release. HD had recently been involved in education and a return to work program in the AMC, and has also been working in the AMC delivering meals. There is no current information before me about HD's physical or mental health as such, although I am told that he has been engaging in weight training and also attending religious services regularly in the last few months.
During his current period on remand, HD has been the subject of disciplinary action in respect of a refusal to cooperate in urinalysis, and two incidents relating to possession of a mobile phone and chargers.
I am told that the penalties involved two months loss of privileges that effectively amounted to two months in solitary confinement, and that that gave HD a chance to do a lot of thinking which, he says, has had a positive impact. In particular, HD's counsel said that he is now trying to avoid negative influences within the AMC.
Rehabilitation
In April HD told the pre-sentence report author that he was committed to addressing his methylamphetamine use, but his behaviour early in his period in custody since then is not necessarily consistent with such an intention. Earlier this year he also began the process of seeking admission to Triple Care Farm, but has now concluded that he would not be able to stick with such a program and does not want to set himself up to fail.
I am not aware of any suggestion that since April HD has taken part in any kind of substance abuse counselling or other interventions in the AMC. Defence counsel was instructed, however, that HD had refused to submit to urinalysis because he was called to give a sample just before he was to receive a visitor, and that HD had not in fact been using drugs in the AMC. As well, I am told, although this has not been verified by Corrections authorities, that about a month ago HD did submit to urinalysis and no illicit substances were detected.
Defence counsel noted that in contrast to his behaviour last year, HD this time had not only entered early pleas of guilty but had also cooperated in the preparation of the pre-sentence report, and had shown significant insight into the impact of his drug use and negative peer group on his capacity to stay out of trouble, as well as insight into his current capacity to complete residential rehabilitation.
Of course, it is easier for an offender to cooperate in the preparation of a pre-sentence report when he is in custody, and it is a lot easier to recognise the risks of drug use and of associating with a negative peer group than it is to do something about it; nevertheless, it would be nice to think that HD is developing some maturity and a genuine wish to rehabilitate himself by addressing aspects of his behaviour that put him at risk of further offending.
Counsel for HD pointed out that he had found supervision under his previous good behaviour order helpful and would like to pursue rehabilitation in the community with Corrective Services supervision and support.
Offences of this kind require general deterrence and are in my view suitable for such deterrence; it is also apparent that HD needs personal deterrence, although it is by no means clear to me what might deter HD from continuing along his current path.
As already noted, HD entered an early plea of guilty, and a sentencing discount will be provided. Noting also that HD's admissions about his involvement with the car simplified the process of bringing him to justice, and also noting his identification of the person from whom he received the car and key, I shall reduce the sentences by 30%.
Breach of good behaviour orders
The drug possession offence dealt with in the Magistrates Court last year came to light when HD was arrested by police after having failed to attend the Supreme Court in accordance with his bail conditions. In his pocket he had a mobile phone case containing, among other things, a small amount of methylamphetamine.
My options in relation to the good behaviour order made in relation to that offence are in general terms to do nothing, to give HD a warning about the need to comply with the good behaviour order, or to change the supervision arrangements attached to it, although since that good behaviour order, as I understand it, expired yesterday, it is not clear that I really have very many options as far as that one is concerned.
In sentencing HD last year for his involvement in the attempted aggravated robbery, I described the offence as follows:
HD was concerned in an attempt by three other men to rob the Burns Club in Canberra. A week before the attempt, HD signed the three men into the Burns Club as his guests; they used the visit to observe aspects of the club. On the day of the offence, the three other offenders left HD’s home in Kambah riding bicycles that they had earlier stored at his house. HD and another man travelled in HD’s car to the Burns Club, drove slowly by and then stopped 200 m away, from where HD undertook a “lookout” role. When the three other offenders tried to enter the club wearing hooded disposable overalls, masks and gloves, and carrying weapons, they were arrested by police who had been monitoring the activities of one of the offenders under a telecommunications interception warrant. HD drove away immediately but was stopped by police a short time afterwards.
In relation to the breach of the good behaviour order made in suspending the sentence for that offence, my options are to impose the suspended sentence (thereby requiring HD to serve it in custody) or to re-sentence HD.
The prosecutor submitted that HD is at risk of becoming a recidivist offender who is in and out of prison for the foreseeable future. She noted that the good behaviour order I imposed was breached less than a year into its three-year term, and submitted that if good behaviour orders are not imposed on breach there is a risk of bringing suspended sentences into disrepute. Here, the prosecutor said, the breaching offences were not minor offences. Furthermore, it was said, the sentences should not be entirely concurrent given that the offences, while involving the same car, were completely separate offences.
Defence counsel submitted that the current offences are less serious than the offence for which I originally sentenced HD. This is correct to the extent that the current offences carry considerably lower maximum penalties, but the nature of the current offences gives me no particular ground for optimism that HD is on his way to being genuinely rehabilitated.
Despite that, however, I propose to give him in due course a further opportunity to complete his earlier sentence, as well as the new sentences, in the community. That opportunity will this time involve release on parole rather than release under a suspended sentence, and it will be necessary to ensure that there is a reasonably significant parole period provided for in those ultimate sentences.
Sentence
HD, please stand. I record convictions on the new charges of dishonestly receiving stolen property and dishonestly riding in a motor vehicle. Those convictions put you in breach of the two good behaviour orders already mentioned. I take no further action on the Magistrates Court good behaviour order since, as I noted, it expired earlier this week.
Next, I cancel the good behaviour order that I made in suspending the 20-month sentence handed down last year, and I re-sentence you to imprisonment for 20 months, backdated to 28 December 2014.
For the first of the new offences, dishonestly receiving stolen property, I sentence you to imprisonment for 14 months, reduced from 20 months for your plea of guilty and assistance to authorities, and for dishonestly riding in a motor vehicle, to imprisonment for six months reduced from 10 months. The six-month sentence is to be accumulated on the 14-month sentence to extend it by four months, giving a total sentence for the new offences of 18 months. That 18-month sentence is in turn to be accumulated on the 20-month sentence as to 12 months, giving a total sentence of 32 months imprisonment.
For that new total sentence, I set a non-parole period of 12 months. That short non-parole period reflects your youth, your very early guilty pleas, and your need for extended rehabilitation, supervision and support in the community.
As noted, the total sentence will be backdated to 28 December 2014 to take account of pre-sentence custody, and so it will run until 27 August 2017.
The effect of the backdating and the non-parole period is that you will be eligible for parole, at the earliest, in about five months time, specifically 28 December 2015. That will leave you with a period of parole supervision of 20 months, which should provide you with proper supervision and support for long enough to enable you to address your rehabilitation needs, in particular dealing with whatever drug addictions remain when you are released on parole and with whatever other help you need to settle into employment and to establish a more positive group of associates.
This time, HD, the decision about whether you serve the outstanding 20 months of your new total sentence in prison or in the community will be a matter for you and the parole authorities, and not for me. If you can keep out of trouble during the rest of your non-parole period, and then during your parole period, you will have served only a relatively short proportion of that sentence in custody. If you re-offend, of course, you are at risk of serving the entire sentence in full-time custody. I encourage you to make the most of the opportunity that has been given to you, while reminding you that whether you make the most of that opportunity is entirely up to you.
You may sit down.
| I certify that the preceding forty-six [46] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Date: |
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