R v Hoare
[2020] ACTSC 238
•4 September 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Hoare |
Citation: | [2020] ACTSC 238 |
Hearing Dates: | 9 July, 11 August, 4 September 2020 |
DecisionDate: | 4 September 2020 |
Before: | Murrell CJ |
Decision: | Sentenced to twelve months’ and eight months’ imprisonment, partly suspended on the offender entering a good behaviour order with additional conditions. Sentenced to two nine-month good behaviour orders with additional conditions. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Burglary – Theft – Damage property – Offences committed during mental health episode |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 33 Crimes Act 1900 (ACT) s 309 Criminal Code 2002 (ACT) ss 308, 311, 403(1) |
Cases Cited: | Fusimalohi v The Queen [2012] ACTCA 49 |
Parties: | The Queen (Crown) Michael Alexander Hoare (Offender) |
Representation: | Counsel M Smith (Crown) H Hayunga (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 8 of 2020 |
MURRELL CJ:
Introduction
The offender is to be sentenced for the following offences committed on 3 October 2019:
(a)Count 1: Burglary with intent to commit theft, contrary to s 311 of the Criminal Code 2002 (ACT) (Criminal Code). The maximum penalty for this offence is 14 years’ imprisonment, a fine of $224,000, or both.
(b)Count 2: Theft, contrary to s 308 of the Criminal Code. The maximum penalty is 10 years’ imprisonment, a fine of $160,000, or both.
(c)Counts 3 and 4: Damage property, contrary to s 403(1) of the Criminal Code. The maximum penalty is 10 years’ imprisonment, a fine of $160,000, or both.
The offender pleaded guilty on 20 May 2020, following criminal case conferencing and before a trial date had been set. While the Crown case was reasonably strong, there was also strong utilitarian value in the plea being entered at that stage. The offender should receive a discount of 20 per cent on the sentences that would otherwise have been imposed.
The offender has spent 102 days in custody in relation to the offences (i.e. approximately three and a half months), and that period will be taken into account in the sentences that are imposed.
Facts
The offender lived in a duplex-style house in Franklin, which was owned by the ACT Government.
On 3 October 2019, the complainant (who was the offender's next-door neighbour in the duplex) left his house to go on a holiday. Before leaving, he secured his house and left it clean and tidy.
Count 1—Burglary
Later on 3 October 2019, the offender smashed a hole in the front door of the complainant's house, reached through, unlocked the door from the interior, and entered the house.
At about 4 PM on that day, the offender posted videos to Snapchat. One video showed him standing outside the complainant's residence with the garage door open. He entered the residence and said:
Look at my shit I've got. I've got a fucking TV. I own the fucking next door neighbour's house. I've got the keys. There's my new car, baby.
Count 2—Theft
The offender removed a large quantity of property belonging to the complainant, taking it back to his own house. The property included:
(a)toolboxes and other boxes containing assorted tools, including power tools;
(b)a laptop, a television, a black monitor, and a CCTV DVR;
(c)a carpet cleaning machine;
(d)a television cabinet containing various items;
(e)ACT number plates;
(f)a portable phone and base;
(g)an archive box containing paperwork; and
(h)a teddy bear.
Count 3—Damage property
The offender took a lamp and television from the residence and smashed them on the shared driveway of the two residences.
He lit a candle and left it alight on a stack of toilet paper rolls in the kitchen.
He placed a painting over the hole in the front door but left the door open.
At about 6.40 PM, police arrived at the offender's residence. He did not answer their knock. He went to the rear of his residence and called out, “if you come in here, all hell is going to break loose” and that he would “blow this place up”.
Police cordoned off the property, disconnected the gas and electricity supply, removed a jerry can of petrol from the driveway, and called ACT Fire and Rescue. They continued to communicate with the offender, who said that he was “not leaving without a fight” and spoke of burning down the house and shooting the police.
Count 4—Damage property
At about 8 PM, the offender used petrol to light a fire in the backyard of his premises where a mattress, furniture, and numerous other discarded household items were located. The fire engulfed nearby vegetation and a number of items. It caused scorch marks to the brick walls of the offender's residence and the eaves of the house, and melted part of a wall-mounted clothesline. It caused scorch marks to the timber fence of the yard.
The fire was extinguished by ACT Fire and Rescue; fortuitously, they were on hand.
On 7 October 2019, the complainant returned home to find that his house had been ransacked and that the air conditioning and heating panels had been pulled from the wall.
A search of the offender's residence located items that were missing from the complainant's residence.
Victim impact
The complainant continues to fear for his safety and the security of his property. He is concerned that, if he was to report any future misconduct by the offender, he would experience harassment. He feels unsafe living next to the offender, whom he believes has conducted a campaign of intimidation against him.
Objective seriousness
The burglary is the most serious offence before the Court. It was moderately serious. Although the complainant was absent at the time of the burglary, it involved an invasion of his home, gratuitous ransacking, and damage to the front door and the air conditioning and heating panels. It was not a random burglary of a stranger's premises, but irrational conduct committed by a neighbour, which caused the complainant to reasonably apprehend further conduct of the same type. Following the burglary, the complainant's formerly clean and tidy property was left in disarray.
On the other hand, there is no evidence showing substantial permanent damage to the property.
As to the theft, many items was stolen. The items were probably of considerable—although not enormous—value. With the possible exception of the teddy bear and the contents of the archive box, the items were not of sentimental value. Most, if not all, of the stolen items were recovered.
As to Count 3, the damaged television and lamp remained on the shared driveway to greet the complainant when he returned from holiday—a very unpleasant introduction to what had occurred. However, this is a minor matter, given the number, nature, and value of the items concerned.
As to Count 4, the actual damage to the offender's house was limited, but would, no doubt, have been far greater but for the fact that ACT Fire and Rescue were already at the scene and they were able to respond quickly. This offence was irrational in that it affected the offender's own home. The damage was largely confined to scorch marks on the brick wall of the premises and the timber fence. However, there was a risk of far greater damage.
Subjective circumstances
The offender was 35 years old at the time of the offences.
He has a minor criminal history that commenced in 2015. There are several convictions for drug-related matters, some of which are also driving matters. The only conviction for dishonesty is an offence of dishonestly obtaining a financial advantage by deception, which occurred in 2015 and for which the offender received an 18-month good behaviour order. Other convictions resulted in a fine or a good behaviour order. To date, the offender has not received a sentence of imprisonment of any type.
The offender experienced a difficult childhood, during which he was exposed to violence perpetrated against his mother and himself. When he was 16 years old, his parents separated, and he left home. He maintains limited telephone contact with his parents and has no contact with his sister.
The offender has two children. The older child resides with her mother. In recent years, the offender has had limited contact with her, but wishes to increase contact. He has never met his two-year-old daughter.
The offender completed Year 10. At school, he was often disciplined for poor behaviour. After leaving school, he worked in a variety of occupations. However, over the past six years, he has been mostly unemployed. Currently, he receives a disability support pension.
Since he was 16 years of age, the offender has used cannabis daily, except when he has been detained in a mental health facility and during a period when he worked at a mine. For the past 10 years, he has used methylamphetamine. For the past six years, he has used it daily. In February 2020, he tested positive for methylamphetamine while on bail, and he also tested positive for cannabis on two occasions while on bail.
The offender claimed to have ceased methylamphetamine use in late May 2020, but he admitted to continuing daily use of cannabis and to an intention to continue using that drug. The offender informed the author of the pre-sentence report that he can cease illicit substance abuse without external intervention or support.
For the past seven years, the offender has resided in the property the subject of Count 4. He maintained that there had been no history of conflict with neighbours.
Since the offences, the offender has resided in temporary accommodation as his bail conditions have prevented him from being in the suburb of Franklin. He wishes to return to his property. However, that seems highly unlikely. Currently, there are proceedings in the ACT Civil and Administrative Tribunal (ACAT) whereby the ACT is seeking to terminate his lease. I was informed by his legal representative that he may be provided with a property elsewhere.
Most of the offender's Canberra associates were described as antisocial. Many of his long-standing friends reside in Wagga Wagga, and they no longer maintain contact with him because of his illicit substance abuse.
The author of the pre-sentence report assessed the offender as being at medium to high risk of general reoffending.
Mental health
Since he was 18 years old, the offender has experienced mental health problems. His current diagnosis is schizophrenia and polysubstance abuse. He is being treated with injections of anti-psychotic medication through Gungahlin Mental Health Services.
The offender claimed that the offences occurred in the context of a change of medication, and there was some support for that assertion in the material provided to the Court. He said that he had “blacked out” and had limited recall of the offences. He expressed regret for the impact of the offences on the complainant.
On 4 October 2019 (the day after the offences), the offender came before Magistrate Boss, who considered that he was unfit to enter pleas and made a direction under s 309 of the Crimes Act 1900 (ACT) that he be taken to an approved health facility to be assessed in relation to mental impairment.
The offender was admitted to the Adult Mental Health Unit, where he remained until 9 October, “following a psychotic relapse resulting in a police siege following threats against his neighbours”. The discharge summary noted that the offender's family had earlier reported concerns that the offender's mental health was deteriorating. On admission, the offender was “actively psychotic, irritable and thought disordered. He displayed impaired insight and judgment”.
On discharge, the risks that were noted related to substance abuse and aggression. The diagnosis was polysubstance abuse and schizophrenia (paranoid type in remission). The offender was to be followed up by the Gungahlin Mental Health team and treated on an outpatient basis.
I am satisfied that, at the time of the offences, the offender was suffering from an episode of acute psychotic illness. This conclusion is supported both by the diagnosis of 4 October 2019 and the bizarre nature of the offences themselves. It is unclear whether and to what extent the offender's psychotic condition was drug-induced. Consequently, I proceed on the basis that it has not been established that the psychotic condition was drug-induced and that the psychotic condition does reduce his moral culpability for the offences.
Other sentencing considerations
In sentencing the offender, the Court is required to consider relevant matters under s 33 of the Crimes (Sentencing) Act 2005 (ACT), most of which I have referred to above.
In this jurisdiction, sentences for burglary are often in the range of one year to two years and six months' imprisonment: Fusimalohi v The Queen [2012] ACTCA 49 at [51] and ACT Sentencing Database.
Relevant s 7 sentencing purposes include personal deterrence, recognition of harm to the victim, and rehabilitation. Rehabilitation is an important consideration. It will be necessary for the offender to address substance abuse if he is to avoid future involvement in the criminal justice system. Similarly, it will be important that he continue to accept appropriate mental health treatment.
The period that has already been spent in custody must be taken into account when sentencing the offender.
An offence of burglary will ordinarily result in a sentence of full-time imprisonment. However, the offender's reduced moral culpability and the need for strong support, both in relation to his drug use and mental health, mean that it may be appropriate to consider that the offender serves a sentence by another means.
I am satisfied that the only appropriate sentence is a sentence of imprisonment and that the issue is the manner in which such a sentence should be served.
I am concerned about the offender's capacity to comply with any supervision. He has had difficulty engaging with services in the past and, as far as drug use is concerned, he asserted that he can achieve rehabilitation without intervention or support, which is quite unrealistic.
History of sentencing proceedings
9 July 2020
On 9 July 2020, it was submitted that the Court should consider sentencing the offender to serve a sentence by intensive correction order.
Despite concerns about the offender's capacity to comply with supervision, I referred the offender to be assessed for an intensive correction order.
Bail was continued.
11 August 2020
The Court was informed that, on 10 July 2020, the offender was referred to the Canberra Hospital under s 309 of the Crimes Act. On 11 July 2020, the offender came before the Magistrates Court for driving offences. On 15 July 2020, the charges were dismissed under s 334 of the Crimes Act and the offender was referred to ACAT.
In relation to the bail that I had granted on 9 July 2020, the offender committed three alleged breaches of bail and, ultimately, bail was revoked.
As at 11 August 2020, the offender was remanded in custody. No accommodation was available to him in the community. The offender’s solicitor was investigating an accommodation option through the Everyman Program.
The matter was adjourned to 4 September 2020 to await the outcome of the assessment for an intensive correction order, with liberty to apply for bail if the offender secured accommodation.
4 September 2020
On 4 September 2020, the Court received an intensive correction order assessment report, which assessed the offender as unsuitable for such an order.
The Court was informed that, on 3 September 2020, ACAT had made a psychiatric treatment order in relation to the offender. The order required that the offender comply with any determination made by the Chief Psychiatrist and had effect for six months.
Having regard to the total period of 102 days that the offender had been in custody in relation to the offences, I considered that it was in the interests of the offender and the community that he be supervised under the psychiatric treatment order.
Sentence
I convict the offender and impose the following sentences.
(a)Count 1—burglary: 12 months’ imprisonment (reduced from 15 months’ imprisonment), from 25 May 2020 to 24 May 2021.
(b)Count 2—theft: eight months’ imprisonment (reduced from 10 months’ imprisonment), from 25 May 2020 to 24 January 2021.
(c)Count 3—damage property: nine-month good behaviour order, commencing 4 September 2020.
(d)Count 4—damage property: concurrent nine-month good behaviour order, commencing 4 September 2020.
The sentences for Counts 1 and 2 are suspended from 4 September 2020 on the offender entering into a good behaviour order for nine months.
Each good behaviour order is subject to the additional conditions that the offender:
(a)accept the supervision of Community Corrections;
(b)report to Community Corrections by 4 PM on 4 September 2020; and
(c)comply with the psychiatric treatment order made on 3 September 2020 and any subsequent psychiatric treatment order made by ACAT during the term of the suspended sentence.
| I certify that the preceding sixty [60] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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