R v Hinder
[2020] ACTSC 55
•20 March 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Hinder |
Citation: | [2020] ACTSC 55 |
Hearing Date: | 20 March 2020 |
DecisionDate: | 20 March 2020 |
Before: | Walker AJ |
Decision: | The offender is sentenced to a Drug and Alcohol Treatment Order for 14 months; the treatment and supervision part of the order is for 12 months. Reparation of $1,000. See [27]-[32]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – unauthorised possession or use of prohibited weapons – theft – drug and alcohol treatment order |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 12A, 19, 20, 33, 35(4), 80O, 80S, 80T, 80W, 80Y, 80ZA, 109 Prohibited Weapons Act 1996 (ACT) s 5 |
Cases Cited: | R v Beath-Williams [2019] ACTSC 80 |
Parties: | The Queen (Crown) Lochlan Hinder (Offender) |
Representation: | Counsel M Dyason (Crown) T Kelliher (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid (Offender) | |
File Number(s): | SCC 20 of 2020 |
Walker AJ (ex tempore)
Summary of charges
Mr Hinder is charged with one count of theft (CAN 9159/19) contrary to s 308 of the Criminal Code 2002 (ACT)(the Code), an offence which on conviction carries up to 10 years imprisonment, a fine of up to $160,000 or a combination of both.
He is further charged with possessing a prohibited weapon (CAN 6360/19) contrary to s 5 of the Prohibited Weapons Act 1996 (ACT), an offence which on conviction carries up to 5 years imprisonment, a fine of up to $80,000 or a combination of both.
Evidence
For the purposes of sentencing, I have available to me:
· the agreed statement of facts;
· the defendant’s criminal history in the Australian Capital Territory; and
· Drug and Alcohol Treatment Order Suitability Assessment reports from:
o Mr Andrew Cuthel, community corrections officer, ACT Corrective Services dated 3 March 2020
o Ms Elayne Cheong, social worker, Alcohol and Drug Service dated 3 March 2020 and
o Ms Alex Durant, social worker, Forensic Mental Health Services, 5 March 2020.
Facts
On 28 March 2019, Mr Hinder went into Angus and Coote Jewellers at Belconnen Westfield Shopping Centre. It was staffed by a store manager and an assistant. He approached a display cabinet and spoke with the assistant, Ms Hartley. He said he was looking for a gold chain worth about $3,000 and it has been confirmed that he did not have the means to pay for that chain. The store manager watched the exchange. Ms Hartley took a tray of chains which she held with both hands firmly as she turned to show it to Mr Hinder. He grabbed the tray from her and ran off from the store without paying for the items. He then left the shopping centre. Mr Hinder left his fingerprints on the glass display cabinet. The prints were later linked to Mr Hinder by the Australian Federal Police forensics team. The incident was also caught on closed circuit television and the evidence is that Mr Hinder was recognisable from that.
The value of the items taken was $8,651. Those items have not been recovered.
Mr Hinder next came to the attention of the police on 5 May 2019 when he was seen defacing walls in Acton in company with another man. As the police approached them a knife was visible on Mr Hinder's belt. It was seized by the officers. It was a flick knife about 20 cm long when opened with a blade about 9 cm long.
Objective assessment
I have had regard to some comparative decisions in determining the objective seriousness of the offence and where this particular offence might sit within the range of similar offences. I have had regard to the decision of R v Lee [2017] ACTCA 30 in which the theft involved the taking of $53,000 from a mother and step-father along with a far more serious offence of murder. The offender in that instance was sentenced to imprisonment for two years and six months reduced by 15 per cent for their plea of guilty.
In R v Bowler [2015] ACTSC 298, the offences involved theft of items from jewellery stores. They were associated with a number of other offences. One of the thefts involved removal of $8,465 worth of jewellery – a similar amount to that involved in this theft. However; that took place by the smashing of a glass display cabinet after ram-raiding a store. It attracted a sentence of imprisonment of 12 months. Similarly, an offence which involved a far greater amount on another jewellery store at the same time attracted a sentence also of 12 months. That being just under $30,000 worth of property.
In R v Cringle [2018] ACTSC 41 for burglary the value of the items taken being about $2,000 from commercial premises - in a person with a significant history of dishonesty offences - the penalty imposed was ten months and 15 days imprisonment reduced from 12 months on a guilty plea in the face of a strong prosecution case.
I have been referred today to the decision in R v Beath-Williams [2019] ACTSC 80, a decision of Elkaim J, which also involved an offence of theft associated with a burglary. The punishment which was imposed there was in the form of an intensive correction order, that is, a sentence of imprisonment served in the community for 12 months, for the theft of $119.95 worth of alcohol.
Clearly, there is significant scope within the assessment of offences of this type because the gravamen of the offence of theft is interference with the property rights of other people. The legislature recognises by the creation of two offences, that of minor theft contrary to s 321 of the Crimes Act1900 which carries a maximum penalty of two year's imprisonment and this provision in s 308 of the Code, that there is a wide variation in the levels of property of theft offending.
The following observations are made in recognition of the fact that the offence here is to be considered within the continuum of potentially more serious offending with an unlimited upper end. Such offending is more serious where the victim is economically vulnerable and loss has significant impact. It is less serious where the loss is inherently small or small proportionate to the victim's capacity, particularly where the loss can be either absorbed or at least partially passed on, for example, through price setting insurance or other means such as may be the case if the victim is a corporate entity.
This example of theft is against a robust corporate entity capable, to some extent, of absorbing the loss in the manner identified. The amount is significant but not large. However, I note that there was a small element of pre-meditation in respect to this offence and a degree, albeit small, of force used in effecting the offence. It was a brazen one, in broad daylight in the middle of a busy shopping centre.
Possession of a prohibited weapon, as an offence, is geared to the physical protection of the community. Through past convictions Mr Hinder is clearly aware of the illegality of carrying bladed weapons in a public place. There is no suggestion that he intended to use the flick knife he had with him in any inappropriate way, it was worn openly. There are no particularly aggravating factors to this possession.
Subjective considerations
Mr Hinder is now a 27 year old man with a relatively unremarkable start to life; however, that was marred by his parent's separation when he was young. It is not clear if he was two or six years old, according to the various reports but particularly difficult, no doubt, was his father's death about a year after his parents’ separation. His mother and older sister survive, although I understand from the reports that relationships with them are strained.
Mr Hinder began to misbehave after his father's death. He also did not get on well with his mother's subsequent life partners. He began abusing substances from about the age of 13 years. He was in trouble with the law from about that time. His formal education is to Year 9 or 10, depending on which report is correct. His first substantial stint in juvenile detention was for aggravated robbery in 2010 when he was 17 years old. He has committed many criminal offences of varying nature since then, a further aggravated robbery, drug driving, damage and dishonesty offences included. It is fair to say that dishonesty is rife throughout his criminal history and I accept the submission made on his behalf by Mr Kelliher that much of his criminal offending is related to his drug abuse.
Mr Hinder attempted suicide in 2012. He has had numerous crisis presentations to hospital. Diagnoses have included depression, drug induced psychosis and in 2018 antisocial personality. Presently, his mental health appears to be relatively stable. Mr Hinder has a longstanding partner who has a four year old daughter that he treats as his own.
He has held short term employment in the past interrupted due to substance use. He is apparently keen to gain employment when he is better prepared for it in the future.
His substance abuse began with alcohol in his teens moving quickly to methamphetamine and cannabis. Since about 2015, following the very sad loss of an infant child, heroin has been his primary drug of choice. He is currently on the methadone program in custody. I am advised that he last used heroin on 3 December 2019, the day he was taken into custody. Mr Hinder is assessed as being substance dependent and his offending, as already noted, is directly related to that substance abuse. Mr Hinder said he stole to get funds to support his use and that he was in a self-described drug haze at that time.
Mr Hinder has engaged well with supervision in the community on past orders, albeit having breached by reoffending. When assessed in custody, he engaged well - although I note that Ms Durrant of the Forensic Mental Health Service assessed his engagement as superficial. Drug screening during assessment has been negative. Mr Hinder's grandmother, who I note is present today, is supportive and is prepared to have both him and his partner and child live with her. Mr Hinder has been assessed as suitable for a Drug and Alcohol Treatment Order by Mr Cuthel of ACT Corrective Services and Ms Cheong of the Alcohol and Drug Service. Ms Durrant, despite her observation that Mr Hinder's engagement appeared to be superficial, did not identify any psychological barriers to his participation. Mr Hinder consents to such an order being made, having had the consequent obligations explained to him
Sentence Considerations
I note that an application for reparation has been made in respect to this matter. Reparation may be ordered pursuant to ss 19 or 20 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) and may be made by instalments pursuant to s109 of the Act.
Having regard to the circumstances, I intend to make an order for reparation. I intend to make it in the sum of $1,000. That is not full reparation given the onerous nature of the amount that is involved and the unlikelihood of that being paid in the foreseeable future. That amount is to be paid within 12 months; that is something that may be renegotiated if it proves to be particularly onerous or impossible.
I also make a referral for restorative justice.
I note that Mr Hinder pleaded guilty to both offences prior to preparation of a brief of evidence in these matters. The prosecution cases against him were strong and I am required to consider these matters pursuant to Sentencing Act in particular, the strength of the prosecution case pursuant to s 35(4). It was somewhat unusually submitted in Mr Hinder's case that the guilty pleas should be considered as late guilty pleas. I consider that they were certainly not the earliest guilty pleas, but given that they came before the brief of evidence they would normally attract a fairly fulsome discount given the utilitarian value of them. That utilitarian value, however, here is offset by the strength of the prosecution case. I am of the view that a less than full discount should be applied, and I will address this when I get to the length of sentence.
Mr Hinder was remanded in custody on 3 December 2019 as indicated. He has served a significant time in custody prior to coming to court for sentence in these matters. I note that much of that time has been taken into account in matters sentenced in the Magistrates Court yesterday. There are, however, 17 days which have not been accounted for in those matters which will be taken into account as required by the Sentencing Act.
I am required, of course, to take into account the provisions in s 7 and s 33 of the Sentencing Act and I do so. Any sentence imposed must be just and an appropriate punishment and must aim to deter Mr Hinder from future offending and send that message to the community generally. The harm done to the victim of this theft and to the community more widely should be marked and Mr Hinder must be made to take responsibility for his actions. I am of the view that there remains significant scope for rehabilitation despite the extensive criminal history, given Mr Hinder's relative youth and apparently strong motivation to address his substance use. I take into account the provision of s 10 of the Sentencing Act that a sentence of imprisonment is a sentence of last resort.
Sentence
I am satisfied that in relation to the offence of theft (CAN 9159/19), a sentence of 12 months should be imposed. It would have been 13 months except for the plea of guilty and is reduced by one month accordingly. That sentence will be taken to have commenced on 3 March 2020 and will complete on 2 March 2021.
In relation to the offence of possessing a prohibited weapon (CAN 6360/19), I am satisfied that a sentence of two months should be imposed. That is reduced from two months and two weeks in light of the plea of guilty which has been entered. The two months will be served consecutively, that is will be taken to commence from 3 March 2021 and to complete on 2 May 2021.
That provides, therefore, for a sentence of imprisonment of 14 months. There being a primary sentence of 12 months, there is the potential eligibility for a Drug and Alcohol Treatment Order. Having regard to the relevant provisions of the Sentencing Act, in particular ss 12A and ss 80O, 80S and 80T, I am satisfied that Mr Hinder is eligible and suitable for a drug and alcohol treatment order.
Having regard to all of the circumstances and the nature of the offences, the order is appropriate. Having imposed convictions and sentences of imprisonment on the two offences, I now impose a drug and alcohol treatment order pursuant to s 12A(2) of the Sentencing Act. The custodial part is, pursuant to s 80W, a period of 14 months.
The sentence of imprisonment is suspended as of today in accordance with s 80W of the Sentencing Act upon the offender agreeing to enter into a treatment program. The treatment and supervision part of the order is for 12 months commencing today.
Core conditions as detailed in s 80Y(1) apply. The offender is to complete a treatment program as agreed by the treatment team and as amended from time to time. Copies of the core conditions and initial treatment program are to be attached to this order. I note that on completion of the treatment and supervision part of the order, pursuant to s 80ZA of the Sentencing Act, the offender is to enter into a good behaviour order for the remainder of the custodial period.
| I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Sentence of Her Honour Acting Justice Walker Associate: Date: 31 March 2020 |
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