R v Inder

[2019] ACTSC 208

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Inder

Citation:

[2019] ACTSC 208

Hearing Date:

8 August 2019

DecisionDate:

8 August 2019

Before:

Elkaim J

Decision:

See [15]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Drive motor vehicle without consent – Ride motor vehicle without consent – arson vehicle – joint commission damage property – pleas of guilty – mental health concerns for offender

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33

Criminal Code 2002 (ACT) ss 45A, 308, 311, 315(1)
Magistrates Court Act 1930 (ACT) ss 90A, 90B
Road Transport (Safety and Traffic Management) Act 1999 (ACT) ss 5C, 7A

Cases Cited:

R v Arcus [2016] ACTSC 318

R v Hodge [2019] ACTSC 15
R v Jackson [2018] ACTSC 40

R v Wrigley [2015] ACTSC 114

Parties:

The Queen (Crown)

Ashley Inder (Offender)

Representation:

Counsel

E Wren (Crown)

A Doig (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Kamy Saeedi Law (Offender)

File Numbers:

SCC 104 of 2019; 105 of 2019

ELKAIM J:

1. On 9 May 2019, the offender pleaded guilty in the Magistrates Court to six separate offences. Of those six offences, four were committed to the Supreme Court for sentence pursuant to s 90A of the Magistrates Court Act 1930 (ACT), the remaining two were transferred pursuant to s 90B as related offences.

1. A summary of the offences and their maximum penalties are:

(a) Two charges of riding or driving a motor vehicle without consent, contrary to s 318(2) of the Criminal Code 2002 (ACT) (Criminal Code). The maximum penalty for this offence is 5 years’ imprisonment, a fine of $80,000, or both.

(b)    One charge of causing damage to a vehicle by fire, contrary to s 404(1) of the Criminal Code. The maximum penalty for this offence is 15 years’ imprisonment, a fine of $240,000, or both.

(c) One charge of recklessly causing damage to property, contrary to s 403 of the Criminal Code by virtue of s 45A of the Criminal Code. The maximum penalty for this offence is 10 years’ imprisonment, a fine of $160,000, or both.

(d)    One transfer charge of driving at a speed dangerous and failing to comply with a request or signal given by a police officer to stop the vehicle contrary to  s 7A Road Transport (Safety and Traffic Management) Act 1999 (ACT). The maximum penalty for this offence is 3 years’ imprisonment, a fine of $48,000, or both.

(e) One transfer charge of failing to stop motor a vehicle for the police contrary to s 5C Road Transport (Safety and Traffic Management) Act 1999 (ACT). The maximum penalty for this offence is 12 months’ imprisonment, a fine of $16,000, or both.

1. The facts of the offences are set out in detail in the Statement of Facts. In brief summary, on 23 February 2019 a couple living in the Canberra suburb of Dunlop were awoken by noises which they subsequently investigated. They found their Toyota Hilux was missing from the garage, the door to the garage had been torn from its frame.

1. On 13 March 2019 the Toyota was found on fire. The vehicle was not entirely destroyed. When examined, the police found that the offender’s phone had been connected into the vehicles Bluetooth system. It is difficult to know whether this was a brazen disregard for the rights of the vehicle’s owner or an acknowledgement by the offender that he should not use the telephone, other than in hands-free mode, while driving. The relevance of the Toyota incident is limited. One of the driving offences relates to the Toyota and it is that incident which played a part in identifying the offender. He is not however charged with setting the vehicle alight.

1. On 21 March 2019 a Jaguar F type vehicle was stolen from an address in Phillip. The Jaguar was found on 24 March 2019. It had also been set alight. Damage had been done to a roller door at the underground car park where the Jaguar was housed.

1. I regard the setting alight of the Jaguar an offence of about medium objective seriousness. I think the balance of the offences fall below this benchmark. Comparative cases, which I must have regard to, if they show a sentencing pattern, include R v Hodge [2019] ACTSC 15 (Hodge), R v Jackson [2018] ACTSC 40, R v Arcus [2016] ACTSC 318 and R v Wrigley [2015] ACTSC 114. I think the matter of Hodge is of the most assistance in this matter.

1. The offender was born in 1993 in Canberra. He had a positive and supportive upbringing. He left school in Year 8. He had significant behavioural issues. In addition, he has had significant mental health issues and has on various occasions attempted suicide. He has been admitted to mental health units. He has had a number of jobs in the construction industry and held down a particular job for seven years. He injured his back at work and received a fairly substantial compensation payout. He has not worked in the two years since his injury.

1. Unfortunately, the offender became involved with illegal drugs some time ago and he was soon addicted. He has a significant criminal history involving a wide range of offences. They include traffic matters, damaging property, assault, theft and burglary and even cruelty to an animal resulting in the animal’s death. He was imprisoned for the last mentioned offence.

1. A psychological report, from Dr Danielle Clout, has been tendered on behalf of the offender. She sets out his developmental history and traces his mental health issues. She says that he has suffered, or is suffering, from a major depressive disorder, a stimulant use disorder and also, on a long-term basis, from ADHD. He also suffers from Tourette’s Syndrome and he apparently has an underdeveloped frontal lobe. He clearly has major mental health issues, no doubt unassisted by the use of illicit drugs.  She says that his depression may have contributed to his drug use and, the drug use in turn led to his criminal behaviour.

1. Dr Clout recommends a psychiatric evaluation and treatment of his ADHD symptoms. She also suggests individual psychological treatment which she anticipates would reduce his risk of reoffending and also going back to the use of drugs. She suggests that treatment outside the prison system is likely to be more beneficial. To this end the offender’s counsel concentrated his submissions on the structure of the sentence, in particular to give the offender a target, and some hope, to reach a stage where he will be released into the community and able to take up the treatment options.

1. I note the references tendered on his behalf recognise that his time in custody seems to have been beneficial and there is a hope for rehabilitation. He is now 26 years of age so that any prospect of rehabilitation must be given a chance.

1. On the other hand general deterrence in crimes of this sort is important, as are all the factors set out in s 33 of the Crimes (Sentencing) Act2005 (ACT). These include the damage caused by the offender. Sections 6 and 7 of this Act are also important because they set out the principles and objects of sentencing. Section 10 says imprisonment is a last resort. There is however no alternative to full-time imprisonment in this matter.

1. Principles of totality are also important because I need to avoid an overly long and crushing sentence. Accordingly there will be a degree of accumulation and concurrency. I recognise that separate offences should be delineated, but at the same time I am able to look at sentences concurrently where they arise from the same course of events.

1. The offender’s pleas of guilty entitle him to a discount which I assess at 25%. This will effectively only apply to the sentence for the arson charge.

1. I make the following orders:

(a)For Count 1, drive a motor vehicle without consent (CC2019/3960), the offender is sentenced to three months imprisonment commencing on 3 April 2019 and ending on 2 July 2019.

(b)For Count 2, ride in a motor vehicle without consent (CC2019/3961), the offender is sentenced to three months imprisonment commencing on 3 July 2019 and ending on 2 October 2019.

(c)For Count 3, cause damage to a vehicle by fire (CC2019/3962), the offender is sentenced to 13 months and 15 days imprisonment (reduced from 18 months) commencing on 19 December 2019 and ending on 2 February 2021.

(d)For Count 4, recklessly cause damage to property (CC2019/5253), the offender is sentenced to six months imprisonment commencing on 3 July 2019 and ending on 2 January 2020.

(e)For the first transfer charge, aggravated dangerous driving (CC2019/3963), the offender is sentenced to three months imprisonment commencing on 3 July 2019 and ending on 2 October 2019.

(f)For the second transfer charge, failing to stop a motor vehicle for police (CC2019/3965), the offender is sentenced to three months imprisonment commencing on 2 October 2019 and ending on 1 January 2020.

(g)The total length of imprisonment is one year and 10 months, commencing on 3 April 2019 and ending on 2 February 2021

(h)I set a non-parole period of 11 months commencing on 3 April 2019 and ending on 2 March 2020.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: 8 August 2019