R v Kelly
[2020] ACTSC 292
•23 October 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kelly |
Citation: | [2020] ACTSC 292 |
Hearing Date(s): | 17 August 2020 |
DecisionDate: | 23 October 2020 |
Before: | Loukas-Karlsson J |
Decision: | See [118] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency – sleeping victim – burglary and theft offences |
Legislation Cited: | Crimes (Sentencing Procedure) Act 1999 (NSW) s 22 Crimes Act 1900 (ACT) s 60(1) Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33 |
Cases Cited: | Blundell v The Queen [2019] ACTCA 34 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Zdravkovic v The Queen [2016] ACTCA 53 |
Parties: | The Queen (Crown) Paul David Kelly (Offender) |
Representation: | Counsel S Jerome (Crown) J Campbell (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) ACT Legal Aid (Offender) | |
File Number(s): | SCC 18 of 2020 SCC 19 of 2020 |
LOUKAS-KARLSSON J
Introduction
On 20 May 2020 Paul David Kelly (the offender) pleaded guilty to the following indictable offences committed between 26 September 2019 and 29 September 2019:
(a) Three counts of burglary, contrary to s 311 of the Criminal Code 2002 (ACT) (Criminal Code) (maximum penalty 14 years imprisonment, a fine, or both).
(b) One count of an act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900 (ACT) (Crimes Act) (maximum penalty 7 years imprisonment).
(c) Eight counts of theft, contrary to s 308 of the Criminal Code (maximum penalty 10 years imprisonment, a fine, or both).
(d) Two counts of dishonestly obtaining property by deception, contrary to s 326 of the Criminal Code (maximum penalty 10 years imprisonment, a fine, or both).
(e) One count of taking a motor vehicle without consent, contrary to s 318(2) of the Criminal Code (maximum penalty 5 years imprisonment, a fine, or both); and
(f) Two counts of obtaining a financial advantage by deception, contrary to s 332 of the Criminal Code (maximum penalty 10 years imprisonment, a fine, or both).
In addition, the following summary charges were transferred as related offences pursuant to s 90B of the Magistrates Court Act 1930 (ACT). These offences were committed between 26 September 2019 and 30 September 2019:
(a) Three charges of unlawful possession of stolen property, contrary to s 324(1) of the Criminal Code (maximum penalty 6 months imprisonment, a fine, or both) (CC20/267; CC20/268; CC20/273).
(b) One charge of possessing a drug of dependence, namely methylamphetamine, contrary to s 169(1) of the Drugs of Dependence Act 1989 (ACT) (maximum penalty 2 years imprisonment, a fine, or both) (CC19/10641); and
(c) One charge of driving unlicensed, contrary to s 31(1) Road Transport (Driver Licensing) Act 1999 (ACT) (maximum penalty a fine of 20 penalty units) (CC2020/289).
Agreed Facts
The agreed facts are set out in the Statement of Facts, which forms part of the Crown Tender Bundle. What follows is a brief summary.
Offending on 26 September 2019
Count One: Burglary (CC2020/269) and Count Two: Theft (CC2020/270)
The offender entered St John’s College, at the Australian National University (ANU), at about 2:40pm on 26 September 2019. The offender was captured on CCTV footage moving through the college. The offender entered the room of one of the student residents via an unlocked door and removed the keys to a white Kia Sportage.
Count Three: Take Motor Vehicle Without Consent (SCCAN78/2020)
The offender gained access to the secure carpark located at the rear of St John’s College and accessed the vehicle, driving it out of the carpark closely behind another vehicle that was exiting the building. The offender did not have a valid drivers licence. The offender was later found driving and in possession of the vehicle on 29 September 2019.
Offending on 28 September 2019
Count Four: Burglary (SCCAN79/2020) and Count 5: Theft (CC2020/277)
At about 5am on 28 September 2019 the offender managed to gain access to the St John’s College, entering the administration building before proceeding to the music room. The offender took a rugby jersey with blue and white stripes belonging to the college.
Counts Six – Nine: Theft x4 (CC2020/279; CC2020/280; CC2020/281 and CC2020/282)
The offender then entered the main stairwell area of Burgmann College, proceeded to the dining room, and stole four laptop computers, each belonging to student residents of the college.
Count Ten: Burglary (CC2019/10637)
The offender entered the apartment and room of student resident LA at Burgmann College. LA was residing at the college whilst studying at ANU.
Count Eleven: Act of indecency without consent (CC2019/10644)
LA awoke to find the offender standing over her with the sheets of her bed pulled back. The offender was using his left hand to rub her breasts. LA was only wearing her underwear. The offender was observed by LA to be wearing a dark ski mask, a pale blue rugby jumper, long pants, a large full backpack and gloves. LA could see the offender’s eyes. While still rubbing LA’s breasts the offender said, “You don’t know me”. LA froze and asked the offender who he was. The offender responded that she did not know him and continued to rub her breasts with his hand.
At this point the offender ceased rubbing LA’s breasts. He turned and grabbed LA’s laptop which was connected to a charging cable. LA jumped from her bed and began screaming. She fought with the offender by holding on to her laptop in an effort to prevent him from taking it. Her efforts were successful, and she was able to wrestle the laptop away from the offender.
The offender stumbled backwards, attempting to leave the room and stated to LA “I will rape you”. LA screamed for the offender to get out, yelling “get the fuck out of my house. Get out of here!”. The offender then left the room with the backpack. As the offender was leaving the room he turned back to face LA and said, “I’m going to come back and I’m going to get you.”
The offender left, and LA began knocking on the doors of her neighbours. A neighbour exited her room and LA told her what had happened. Another neighbour telephoned triple-zero soon afterwards, as did LA, who recounted the events to the operator.
Count Twelve: Theft (CC2019/10638)
Upon returning to her room, LA discovered that the offender had taken her mobile phone, her car keys, and wallet. Among other items, her wallet and phone case contained two credit cards, and a Coles gift card with $200 in credit. LA observed a number of items in her room, including two spray can bottles, and a black Kathmandu jacket, which did not belong to anyone in the unit.
The offender was captured on CCTV footage leaving the college with a number of items, entering the stolen Kia, and proceeding down Daley Road. Police arrived soon afterwards.
Forensic examination of the Kathmandu jacket
The Kathmandu jacket located in LA’s room subsequently underwent forensic examination. This examination confirmed the presence of a mixed DNA profile. The forensic examiner concluded that the result provided extremely strong support for the proposition the defendant was a contributor to that DNA profile.
Count Thirteen: Obtain property by deception (CC2019/10643)
At about 7am on 28 September 2019, CCTV captured footage of the offender at Coles Supermarket in Curtin. The offender attempted to use LA’s credit card to purchase items valued at $12.60. The transaction was declined as the card had already been reported as stolen. The offender left the supermarket and returned soon afterwards, using LA’s stolen Coles gift card to make the purchase.
Count Fourteen: obtain financial advantage by deception (CC2020/284)
At 4pm the same afternoon the offender entered a CEX store in Tuggeranong and approached the counter carrying two laptop computers, one black and one silver. The offender exchanged the silver laptops for two receipts, one of which the offender signed and handed back to the cashier. The receipts included the offender’s name, being an account holder at CEX. The second receipt was a ‘test’ receipt provided as proof that the store was holding property that they believed belonged to the offender. The offender then left the store.
At about 5pm the offender returned to CEX and signed a receipt enabling the trade of the silver laptop for a Samsung smartphone and $101 of store credit. He was captured on CCTV conducting these trades.
Count Fifteen: Obtain property by deception (CC2019/10642)
In the evening the offender returned to the Coles Supermarket in Curtin. The offender used the gift card stolen from LA to purchase a number of grocery items. The value of the items totalled $76.17.
Offending on 29 September 2019
Count Sixteen: Obtain property by deception (CC2020/287)
On the morning of 29 September 2019, the offender drove to the Westfield Woden shopping centre and used LA’s credit card to pay the $2 parking fee and purchase food and drink to the value of $7.20.
Count Seventeen: Theft (CC2020/288)
In the afternoon, the offender attended the Caltex Woolworths service station in Calwell. The offender was driving the stolen Kia Sportage. The offender filled the vehicle with petrol valued at $77 before driving away without making any attempt to pay.
Transfer Charge One: Unlicensed Driver (CC2020/289)
The offender was captured by CCTV driving the stolen vehicle on three separate occasions on 26 September 2019. The first was while entering and exiting Dickson carpark. The second was entering the vehicle and driving through the carpark at the front of St John’s College, over a grassed median strip, and proceeding down Daley Road. The third was parking at and subsequently leaving Westfield Woden Shopping centre carpark.
On 29 September the offender was observed by police leaving his Curtin property before they lost sight of the vehicle. Police subsequently located the vehicle in Deakin with the offender nearby.
Transfer charge Two: Possess drug of dependence (CC19/10641)
At about 4:45pm on 29 September, police observed the offender to reverse out of his driveway in the suburb of Curtin. The offender was in the stolen Kia Sportage.
Police followed the offender in the vehicle for some distance, and observed him to drive through Cosgrove Street, Holman Street, Theodore Street before losing sight of the vehicle on Strickland Crescent in the suburb of Deakin.
At about 5:15pm, police located the vehicle parked in the front yard of a property in Deakin. The offender was observed by police to be standing at the passenger side door of the vehicle. The offender was subsequently arrested and searched. Police located the key fob for the Kia and a small clip sealed bad containing a white crystalline substance subsequently confirmed to be 0.008 grams of methylamphetamine. A Samsung smartphone was also located in the offender’s pocket. The offender was transported to the ACT Watch House and remanded in custody. Following the offender’s arrest, the offender’s partner accompanied police to her residence, where the offender also lived. One of the stolen laptops was recovered from the premises.
Transfer charges Three - Four: Unlawful possession of stolen property x2 (CC20/267; CC20/268)
On 30 September 2019, police searched the Kia and found a number of items of stolen property. These items belonged to two people and included passports, credit cards and other identification cards, two laptop computers, and a backpack. A number of the recovered items had been reported as stolen from a residence in Curtin on 25 September 2019. The recovered items were later returned to their owners.
Transfer charge Five: Unlawful possession of stolen property: (CC20/273)
Police also located inside the vehicle transportable Marquees with ANUSA logo on it. The operations manager for ANUSA confirmed that this marquee belongs to the ANUSA and is only rented out to current students of the ANU.
Victim Impact Statement
In evidence before me was a Victim Impact Statement from the victim of the act of indecency offence. At the sentencing hearing, LA read her Victim Impact Statement from the witness box in the courtroom.
LA delivered a powerful and eloquent Victim Impact Statement. It is clear from that statement that the offence had a major impact upon the emotional well-being of both herself and her family. LA has battled with depression and anxiety, and ended her employment and deferred her studies as a result of the offending.
The Court acknowledges the significant impact that the offences have had and continue to have on the victim. Additionally, in this context the Court also acknowledges that the process of sentencing must be just, principled, and objective: See R v FD [2006] NSWCCA 31 at [108]; R v Toumo’ua [2017] ACTCA 9 at [65]; R v UG [2018] ACTCA at [58].
The extent of the impact upon LA was made clear by the Victim Impact Statement. The reading of the victim impact statement is important as the offender heard what the victim had to say. Courts know the extremely serious effects of such offences as these. Nevertheless, it is valuable to hear the words of the victim. LA’s statement included the following passages:
All of that pain and trauma is now blooming and it is blossoming into more determination than ever to be the woman that I am proud of being. You did not teach me to be any stronger than I already am.
I knew from the second I leapt out of my bed to wrestle you that my natural instinct is one of fight not flight. I am, to my very core and always be, a fighter. There were many things taken from me that morning that I will never get back again but strength, resilience and courage are not any of them. I was your victim for a day on September the 28th 2019 but I refuse to be your victim forever.
Objective Seriousness
Defence Submissions
Counsel correctly submitted that the act of indecency offence was clearly the most serious of the offences in terms of its objective seriousness (T 33.35-45; T34.1-20). Counsel for the offender submitted that there was nothing about the burglaries or thefts which “takes [them] out of the ordinary” (T33.40-45), noting that these offences carry the highest maximum penalty of the charges.
Counsel submitted that many of the items which had been taken appear to have been taken erratically, and from the common areas of the residential colleges. Only the car keys and the items taken from LA were taken from private bedrooms. It was submitted that the monetary value of the items was not significant, and the more expensive items such as the laptops had been returned after being recovered. It was submitted that the monetary value of the dishonestly obtain offences was similarly minimal (T 34.25-45).
With respect to the act of indecency, counsel noted that the offence had aggravated features: the victim was asleep when the offending began, the offender was a stranger, and he had entered her bedroom where she was entitled to feel safe. The offence was characterised as being an opportunistic one (T36.5-30).
Prosecution Submissions
Counsel for the prosecution made a similar submission in relation to the assessment of the offences. The prosecution as did the defence correctly submitting that the act of indecency was the most objectively serious of the charges. The offender broke into the living quarters of LA while heavily disguised, and while she was asleep and clearly vulnerable. The prosecution submitted that the act itself was ‘skin on skin’ contact and not of a momentary nature. While the offence did not involve the use of weapons or violence, other than the violence inherent in sexual offences, there were contemporaneous threats to return and carry out a more serious sexual offence (T43.25-40). Counsel for the prosecution submitted that this offence was mid-range in terms of objective seriousness (T44.30-31).
The prosecution submitted that all of the property and dishonesty offences, while unsophisticated, were premeditated and brazen. It was submitted that each of these offences were appropriately characterised as being below mid-range (T 44.15-30; 49.20-30).
Conclusion on objective seriousness
The act of indecency is clearly the most serious of all the offences. Additionally, I note that burglary has a higher maximum penalty.
It must be stated that references to low, mid-range and high-range are unlikely to be helpful in this jurisdiction. As has previously been expressed “it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case” (R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua) at [24]). The identifying features of the indecency offence have been outlined above in the prosecution and defence submissions which are broadly aligned. This was a very serious example of an act of indecency. The victim was asleep in her bed. The offender was a stranger in her bedroom where she was entitled to feel safe. There was a level of premeditation conceded by defence in light of the wearing of the ski mask (T49). As to the other offences I agree with the submissions made by the prosecution and defence which again are broadly aligned and accord with my view.
Subjective Circumstances
In evidence before me is a Pre-Sentence Report (PSR) prepared for the offender on 14 August 2020. The offender is currently 39 years of age and was 38 at the time of the offending.
The offender was born in Queensland and relocated with his family frequently due to his father’s employment with the Australian Defence Force. The offender’s mother advised the PSR author that she believed this frequent relocation was disruptive for the offender and his siblings. The offender initially reported a stable safe upbringing without any disruptive factors. He later reported a traumatic childhood incident which had resulted in criminal charges against a female teacher. The offender’s mother advised that she suspects this incident may be a contributing factor to his abuse of illicit substances and subsequent criminal behaviour. The offender acknowledged that this incident may have had a subconscious effect on his drug use and attitudes towards crime.
The offender’s parents currently reside in South Australia and although frustrated and disappointed in his behaviour, remain supportive of their son and speak frequently. The offender has five siblings, one of whom lives in Canberra and continues to provide support for him when required.
The offender was in a de facto relationship with his ex-partner for approximately eight years, however that relationship broke down upon his return to custody. He remains in an amicable and communicative relationship with his ex-partner. The offender reported helping to raise his ex-partner’s three children since they were young. The offender was residing with his ex-partner prior to his remand in custody. He acknowledged that he is not welcome to return to the home following his release from custody, and has not secured any post-release accommodation at this time.
The offender left school in Year 10 and has had no significant periods of unemployment in the community. The majority of his employment has been in the labouring and retail industries, most recently as an assistant stonemason. In early 2019 he was dismissed from his employment as a maintenance worker at Canberra University following a change of management and criminal history checks. The offender’s mother noted this dismissal as being disappointing and confidence-destroying for the offender, and believes that the offender’s return to illicit drug use was linked to the loss of this employment.
The offender has been employed within the Alexander Maconochie Centre (AMC) as a cleaner and café supervisor. Service records tendered into evidence note a positive engagement with his employment roles. The offender was described in those records as a good worker with a strong work ethic. The offender has completed a number of courses while in the AMC. In evidence were certificates for the successful completion of anger management, harm minimisation, alcohol and drug awareness prevention training, Hepatitis prevention and training, and other courses relating to mental health and well-being. The offender has also completed a certificate in Skills for Work and Vocational Pathways.
The offender acknowledged that many of his friends and associates were involved in illicit substance use or other criminal behaviour. He also advised that he does have some pro-social friends and described a desire to reconnect with these people and avoid those who he viewed as anti-social.
The offender reported non-problematic alcohol use and viewed his experimental use of illicit drugs other than methylamphetamine in his early 20s as non-problematic. His methylamphetamine use began in 2005 and has remained relatively consistent absent some periods of abstinence, most notably between 2016 and 2019. The offender acknowledged the link between his illicit substance use and his offending behaviour. He has spent his time in custody engaging in a number of rehabilitation and educational programs and has indicated that he wishes to engage in further rehabilitation programs when they become available.
The offender had significant financial issues prior to his return to custody, although he indicated to the PSR author that he did not commit the crimes out of financial desperation or to support his drug habit. The offender owes approximately $30,000 in Centrelink debt and reported that he has entered a payment plan to begin repaying that debt.
Remorse
The offender stated to the PSR author that he did not have a clear recollection of his offending. He attributed his memory loss to his intoxication at the time. He stated that he accepted that the events occurred as outlined in the agreed statement of facts. He stated that he could remember the thefts of the laptops, and the attempts to use credit cards and gift cards, but could not recall the majority of the events which occurred at the residential college, including the act of indecency.
The offender gave sworn evidence at sentencing about his remorse for the offences, and directly acknowledged the significant impact that his actions have had on LA. The offender accepted that he was responsible for the offences as they appear in the agreed facts, but maintained that he had no memory of the majority of those events. In cross-examination, the offender stated that he recalled stealing the four laptop computers on 28 September 2019 but denied any recollection of the indecent assault and other contemporaneous offending until the morning of 29 September. The offender expressed a desire to continue engaging in further rehabilitation programs during his time in custody.
The offender has written two letters of apology which were tendered into evidence. One of these letters is addressed to the Court. The other is addressed to LA. The letter to LA was provided to the prosecution and is available for LA to read should she wish to do so.
In his letter to the Court the offender states his remorse for his actions and describes the educational, employments, and rehabilitation programs that he has undertaken since his remand in custody. He also states the following:
Since being in custody, from the very moment I felt some sort of mental normality I felt remorse, shame and regret instantly for what I had done and the situation I had put myself, my parents and my partners and kids in. Upon realising this I decided this is it, I cannot do this any more the life style I was living has to stop.
…
I have reached a point in my life where I have had enough of making these mistakes and hurting other people, myself and my loved ones around me and I am 100% dedicated to changing my ways for the better and obtain normality in my life and I will continue to do so even after being sentenced. If I was ever given the opportunity to apologise and show how remorseful I am to the people I have [affected] for my actions whilst under the influence I would take that chance and whole heartedly apologise sincerely.
I accept that the offender is remorseful based on the evidence before me. I further accept that there is potential for rehabilitation, though prospects for rehabilitation in the community remain guarded at this stage. Nevertheless, I accept there is some potential to be noted.
Criminal History
The offender has a criminal history in the ACT, New South Wales, and South Australia. In addition to a number of driving offences he has two previous aggravated burglary convictions, and a previous conviction for an act of indecency without consent.
In 2013 the offender was convicted and sentenced to a term of two years and three months imprisonment by Penfold J for a single count of aggravated burglary, suspended for the remaining 11 months from the date of sentence. In 2015, the offender was sentenced by Burns J for one offence of aggravated burglary and another of theft. The offender was sentenced to 20 months’ imprisonment reduced from 24 months by way of a plea of guilty. A period of 9 months was to be served periodic detention and a 24-month Good Behaviour Order (GBO) was imposed. The offender breached that GBO by way of reoffending, his behaviour was recorded as unsatisfactory due to failure to attend, and positive drug tests.
In July 2016 the offender was sentenced in the Magistrates Court for an act of indecency without consent and received a sentence of two years’ imprisonment with a non-parole period of 12 months. The sentencing remarks of the Magistrate were tendered as a part of the Crown tender bundle.
The offender was released from the AMC in September 2017 to a Parole Order. He complied with the conditions of that order and remained abstinent from illicit substances for a significant period, completing the Order successfully.
The offender returned to the AMC on 22 April 2019 in relation to property damage and possession of methamphetamine offences. He was sentenced to 17 days imprisonment and released with time served on 7 May 2019.
On 29 September 2019, the offender was remanded in custody in relation to the current offences and has remained in custody to date.
Plea of Guilty
Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard. This provision may be compared with the less prescriptive terms of s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Section 22 is focused on the utilitarian value of pleas of guilty: see Toumo’ua at [41]-[48]. Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 noted that the ACT courts have adopted an approach to s 35 discounts that is similar to NSW at [47]. However, the ACT statutory scheme does differ from that of NSW: see Toumo’ua at [50].
In Blundell v The Queen [2019] ACTCA 34 (Blundell), the ACT Court of Appeal stated that the utilitarian value of pleas indicated at criminal case conferencing is such that “a discount in excess of 10%, and almost always within the range of 15 to 20%, is required”: at [12].
The offender entered pleas of guilty at Criminal Case Conferencing and after the full brief of evidence had been provided to the offender by the prosecution. Counsel for the offender submitted that this should entitle the offender to a discount in the range of 15 to 20 per cent (T 39.40-45). Counsel for the prosecution accepted that in the absence of any distinguishing features, that a discount in that range would be appropriate (T 48.5-15).
I therefore allow a 20 per cent discount for the pleas of guilty.
Time in Custody
The offender has spent 391 days in custody from 29 September 2019 solely referable to these offences.
Comparable Cases
Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this court relating to offenders who committed similar offences. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4] that:
[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent
I was referred to a number of somewhat comparable cases by the parties. In addition, the prosecution also supplied a table of sentences for comparable cases for the offences of acts of indecency without consent, and burglary. Those cases were R v NC [2017] ACTSC 206, R v Aroub [2017] ACTSC 187, Singh v R [2017] ACTCA 17, R v Rogers [2017] ACTSC 67, R v SV [2016] ACTSC 211 (R v SV), Gillard v R [2016] ACTCA 50, R v Tamawiwy (No 4) [2015] ACTSC 371, R v NO [2015] ACTSC 308, R v Kim [2015] ACTSC 182, R v Kindl [2015] ACTSC 128, R v SP [2015] ACTC 121, R v Ridley [2014] ACTSC 382, R v Catanzariti [2014] ACTSC 33, R v GJ [2014] ACTSC 186, R v Randhir Singh; R v Ajitpal Singh [2014] ACTSC 250, R v Crawford (No 3) [2017] ACTSC 99, R v McMahon (No 2) [2017] ACTSC 299, R v Coogan [2017] ACTSC 238, R v Dugdale [2017] ACTSC 203, R v Catania [2017] ACTSC 264, R v John (No 2) [2017] ACTSC 186, R v Eluga [2017] ACTSC 140, R v Aleksovski [2017] ACTSC 163, R v Johnson [2017] ACTSC 125, R v Forrest (No 3) [2017] ACTSC 168, R v TI [2017] ACTSC 129, R v NX [2017] ACTSC 72, R v Williams [2017] ACTSC 298, R v Clarkson [2017] ACTSC 9, R v McCarthy (No 2) [2016] ACTSC 375, R v Booth [2016] ACTSC 365, Sampson v De Haan [2016] ACTSC 327, R v Howsan [2016] ACTSC 357, and R v CA [2016] ACTSC 378.
Included in those cases provided by counsel for the offender were R v Punna-Ophasi (ACT Supreme Court, Burns J, 5 October 2012), R v MT [2014] ACTSC 162, R v Taylor [2015] ACTSC 43, R v Buda-kaa [2013] ACTCA 46 (Buda-kaa), R v Sordini [2015] ACTSC 45 (R v Sordini), Henderson v R [2006] ACTCA 17, R v Buckley (ACT Supreme Court, Penfold J, 30 August 2013) and R v Lindsay [2020] ACTCA 25.
These provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54].
Love v The Queen [2012] ACTCA 8 was an appeal by the offender against a sentence of five years imprisonment with a non-parole period of three and a half years imposed for 16 burglary and theft offences. The appeal was upheld on the basis that the sentence was manifestly excessive, and the offender was re-sentenced to 4 years of imprisonment, with a non-parole period of two years and three months.
In R v Steen [2020] ACTSC 222 the offender was sentenced after entering pleas of guilty to 21 burglary offences, 19 theft offences, one offence of going equipped for burglary, two offences of possession of stolen property, and one offence of damaging property. The offender had spent a significant portion of his adult life in custody. His prospects of rehabilitation were described by Burns J at [74] as being bleak, but not non-existent. For each of the burglary charges the offender was sentenced to between three and four years imprisonment, with each sentence reduced by approximately 25 per cent for early guilty pleas. The total aggregate sentence imposed was one of six years and seven months imprisonment, with a non-parole period of four years.
UG v The Queen [2018] ACTCA 64 was an appeal by the prosecution in relation to sentences which had been imposed for the offences of burglary, sexual intercourse without consent, and act of indecency without consent. The offences had taken place in the home of the victim while she was asleep. The Court noted that the offences had a severe impact upon the victim. The offender was 28 years of age with no criminal history, and had otherwise been of excellent character. The offender had expressed remorse, had made significant admissions which had assisted the authorities, and had advanced strong subjective circumstances. The appeal was upheld and the offender re-sentenced to 6 months imprisonment for the indecent assault, and 22 months’ imprisonment for the burglary offence, suspended after 3 months’ upon entering into a good behaviour order.
In R v Sordini the offender had pleaded guilty to the offence of sexual intercourse without consent, a charge which carries a maximum penalty of 12 years imprisonment. The victim had lost consciousness after taking non-prescribed medication and awoke while the sexual assault was taking place. The offence had a significant and ongoing impact upon the victim. The offender was convicted and sentenced to two years and ten months imprisonment, reduced from three years due to his plea of guilty.
In Buda-kaa, the offender had been found guilty by a jury of one offence of sexual intercourse without consent by digital penetration of the victim’s vagina, and two acts of indecency, by touching the victim’s breast, and attempting to touch her vagina. The offender was known to the victim, and entered her home by an unlocked door. He then climbed into the victim’s bed where she was asleep before committing the offences. The offender was sentenced by Burns J to 9 months’ imprisonment for each of the indecency offences and 3 years imprisonment for the sexual intercourse offence. The offender received a non-parole period of 1 year and 6 months. The offender had a significant criminal history, including aggravated burglary and theft offences. The prosecution’s appeal against that sentence was unsuccessful.
In R v SV the offender was sentenced by Robinson AJ after a trial by jury for one offence of sexual intercourse without consent, an act of indecency, and another of common assault. The offender and the victim were husband and wife. The offender entered the victim’s separate bedroom and attempted to initiate sexual intercourse. The victim did not consent, and the offender struck her across the face. The offender continued, lifting the victim’s shirt and touching and licking her breast. The offender then left the bedroom, but returned some time later and engaged in non-consensual penile-vaginal intercourse with her. The offender had no criminal history, but did not express remorse for his actions. The offender was sentenced to 12 months’ imprisonment for the indecent assault, 4 years imprisonment for the sexual intercourse without consent, and 3 months’ imprisonment for the common assault. The offender received a non-parole period of 2 years and 2 months.
I note these cases as yardsticks as referred to in the authorities and I also note that each case must, of course, turn on its own facts.
Statutory and other relevant considerations
The starting point for any discussion of the purposes of punishment must be Veen v The Queen (No 2) (1988) 164 CLR 465 (Veen (No 2)) where Mason CJ, Brennan, Dawson and Toohey JJ said at 476:
… sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.
In R v Engert (1995) 84 A Crim R 67 Gleeson CJ said at 68 after discussing Veen v The Queen (No 2):
It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.
The principle of proportionality operates to guard against the imposition of unduly lenient or unduly harsh sentences. The principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 (R v McNaughton) at [15]; Veen (No 2) at 477; Hoare v The Queen (1989) 167 CLR 348 at 354; R v Dodd (1991) 57 A Crim R 349 at 354 and R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 at [156]-[158].
Prior convictions are relevant to deciding where, within the boundary set by the objective circumstances, a sentence should lie: R v McNaughton at [26].
Prior record is not restricted only to an offender’s claim for leniency: R v McNaughton at [20]; Veen (No 2) at 477. As stated in Veen (No 2) at 477, prior record is also relevant:
… to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.
As Gleeson CJ, McHugh, Gummow and Hayne JJ explained in Weininger v The Queen [2003] HCA 14; 212 CLR 629 at [32]:
…Taking all aspects, both positive and negative, of an offender’s known character and antecedents into account in sentencing for an offence is not to punish the offender again for those earlier matters; it is to take proper account of matters which are relevant to fixing the sentence under consideration.
In sentencing the offender, the court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.
The court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, and recognition of harm to the victim are important sentencing considerations. Also, double counting must be avoided in particular in relation to the burglaries and other offences. Additionally, I note it was a course of conduct over a period of three days.
The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, an alternative to full-time custody is not appropriate in my view taking into account the objective seriousness of the offending and the criminal record, which includes matters of a similar nature, that is, a previous act of indecency in 2016 and previous burglaries.
As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
Childhood disadvantage does not “diminish with the passage of time and repeat offending” but does not have the same “(mitigatory) relevance for all purposes of punishment”: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44].
Drug addiction is a relevant circumstance for the Court to consider but is not, of itself, a mitigating factor: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [193]-[203], [273] and [347]; R v Martin [2007] VSCA 291; 20 VR 14 at [19]-[30].
When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64] (Zdravkovic). The real question is whether the total sentence is “just and appropriate” to reflect the total criminality: Mill v The Queen (1988) 166 CLR 59 (Mill); R v Meyboom [2012] ACTCA 48 at [66]; Zdravkovic at [71].
As stated above, the Court must take into account the principle of totality. That is particularly so where there are several counts representing different episodes. However, it must not be applied so as to suggest the offender is receiving a discount for multiple offending: R v M.A.K; R v M.S.K. [2006] NSWCCA 381; 167 A Crim R 159 at [18].
In R v Lockwood [2018] ACTSC 288 at [51], I noted the following with regard to the offence of burglary:
There is a “significant range of available sentences” for burglary, though they are “generally within the range of imprisonment for from one year to two years and six months”: Fusimalohi v The Queen [2012] ACTCA 49 at [51]; Heard v The Queen [2015] ACTCA 6 at [27]-[32]; Millard v The Queen [2016] ACTCA 14 at [44]-[45].
In relation to concurrency, I refer to the following passage from O’Brien v The Queen [2015] ACTCA 47 at [26], citing Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 4 at [27]:
[W]here offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent.
I take these principles into account on sentence.
I also note that the transfer charge of driving while unlicensed does not carry a term of imprisonment, and that a submission was made that the fine could be worked off at a daily rate throughout the course of the sentence. I further note the defence submission made in relation to concurrency of Counts 13-17 and that the prosecution did not cavil with that proposition (T40).
Sentence
In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offences and the subjective matters.
It must be recognised and underlined by the Court that the offences committed against the victim of the indecency offence have had a serious and significant impact upon her. Both the short and long-term consequences of being the victim of this offence must be acknowledged, and I do so. The victims of the property offences are also acknowledged by the Court.
Charges on indictment
Count 1: The appropriate sentence for the offence of burglary (CC2020/269) is 16 months reduced to 1 year and 24 days on account of the discount for the plea of guilty.
Count 2: The appropriate sentence for the offence of theft (CC2020/270) is 6 months reduced to 4 months and 22 days on account of the plea of guilty.
Count 3: The appropriate sentence for the offence of take motor vehicle without consent (SCCAN78/2020) is 10 months reduced to 8 months on account of the plea of guilty.
Count 4: The appropriate sentence for the offence of burglary (SCCAN79/2020) is 18 months reduced to 1 year, 2 months, and 12 days on account of the plea of guilty.
Count 5: The appropriate sentence for the offence of theft (CC2020/277) is 3 months reduced to 2 months and 12 days on account of the plea of guilty.
Count 6: The appropriate sentence for the offence of theft (CC2020/279) is 5 months reduced to 4 months on account of the plea of guilty.
Count 7: The appropriate sentence for the offence of theft (CC2020/280) is 5 months reduced to 4 months on account of the plea of guilty.
Count 8: The appropriate sentence for the offence of theft (CC2020/281) is 5 months reduced to 4 months on account of the plea of guilty.
Count 9: The appropriate sentence for the offence of theft (CC2020/282) is 5 months reduced to 4 months on account of the plea of guilty.
Count 10: The appropriate sentence for the offence of burglary (CC2019/10637) is 20 months reduced to 16 months on account of the plea of guilty.
Count 11: The appropriate sentence for the offence of act of indecency without consent (CC2019/10644) is 2 years and 6 months reduced to 2 years on account of the plea of guilty.
Count 12: The appropriate sentence for the offence of theft (CC2019/10638) is 6 months reduced to 4 months and 22 days on account of the plea of guilty.
Count 13: The appropriate sentence for the offence of obtain property by deception (CC2019/10643) is 5 months reduced to 4 months on account of the plea of guilty.
Count 14: The appropriate sentence for the offence of obtain financial advantage by deception (CC2020/284) is 5 months reduced to 4 months on account of the plea of guilty.
Count 15: The appropriate sentence for the offence of obtain property by deception (CC2019/10642) is 5 months reduced to 4 months on account of the plea of guilty.
Count 16: The appropriate sentence for the offence of obtain property by deception (CC2020/287) is 5 months reduced to 4 months on account of the plea of guilty.
Count 17: The appropriate sentence for the offence of theft (CC2020/288) is 5 months reduced to 4 months on account of the plea of guilty.
Transfer charges
Transfer Charge One: The appropriate sentence for the offence of driving while unlicensed (CC2020/289) is 4 penalty units ($640). I allow no time to pay.
Transfer Charge Two: The appropriate sentence for the offence of possession of a drug of dependence (CC19/10641) is 5 weeks reduced to 4 weeks on account of the plea of guilty.
Transfer Charge Three: The appropriate sentence for the offence of unlawful possession of stolen property (CC20/267) is 4 months reduced to 3 months 6 days on account of the plea of guilty.
Transfer Charge Four: The appropriate sentence for the offence of unlawful possession of stolen property (CC20/268) is 4 months reduced to 3 months 6 days on account of the plea of guilty.
Transfer Charge Five: The appropriate sentence for the offence of unlawful possession of stolen property (CC20/273) is 2 months reduced to 1 month 18 days on account of the plea of guilty.
Orders
I make the following orders:
(a)I record convictions in relation to the offences.
(b)In respect of the offence of burglary (CC2020/269), the offender is sentenced to a term of 1 year and 24 days of imprisonment, commencing on 29 September 2019 and ending on 22 October 2020.
(c)In respect of the offence of theft (CC2020/270) the offender is sentenced to a term of 4 months and 24 days of imprisonment, commencing on 29 September 2019 and ending on 21 February 2020.
(d)In respect of the offence of take motor vehicle without consent (SCCAN78/2020) the offender is sentenced to a term of 8 months of imprisonment, commencing on 22 May 2020 and ending on 21 January 2021.
(e)In respect of the offence of burglary (SCCAN79/2020) the offender is sentenced to a term of 1 year 2 months and 12 days of imprisonment, commencing on 22 November 2020 and ending on 2 February 2022.
(f)In respect of the offence of theft (CC2020/277) the offender is sentenced to a term of 2 months and 12 days of imprisonment, commencing on 22 November 2020 and ending on 2 February 2021.
(g)In respect of the offence of theft (CC2020/279) the offender is sentenced to a term of 4 months of imprisonment, commencing on 2 December 2021 and ending on 1 April 2022.
(h)In respect of the offence of theft (CC2020/280) the offender is sentenced to a term of 4 months of imprisonment, commencing on 2 December 2021 and ending on 1 April 2022.
(i)In respect of the offence of theft (CC2020/281) the offender is sentenced to a term of 4 months of imprisonment, commencing on 2 December 2021 and ending on 1 April 2022.
(j)In respect of the offence of theft (CC2020/282) the offender is sentenced to a term of 4 months of imprisonment, commencing on 2 December 2021 and ending on 1 April 2022.
(k)In respect of the offence of burglary (CC2019/10637) the offender is sentenced to a term of 1 year and 4 months of imprisonment, commencing on 2 January 2022 and ending on 1 May 2023.
(l)In respect of the offence of act of indecency without consent (CC2019/10644) the offender is sentenced to a term of 2 years of imprisonment, commencing on 2 April 2023 and ending on 1 April 2025.
(m)In respect of the offence of theft (CC2019/10638) the offender is sentenced to a term of 4 months and 24 days of imprisonment, commencing on 8 January 2025 and ending on 31 May 2025.
(n)In respect of the offence of obtain property by deception (CC2019/10643) the offender is sentenced to a term of 4 months of imprisonment, commencing on 2 February 2025 and ending on 1 June 2025.
(o)In respect of the offence of obtain financial advantage by deception (CC2020/284) the offender is sentenced to a term of 4 months of imprisonment, commencing on 2 February 2025 and ending on 1 June 2025.
(p)In respect of the offence of obtain property by deception (CC2019/10642) the offender is sentenced to a term of 4 months of imprisonment, commencing on 2 February 2025 and ending on 1 June 2025.
(q)In respect of the offence of obtain property by deception (CC2020/287) the offender is sentenced to a term of 4 months of imprisonment, commencing on 2 February 2025 and ending on 1 June 2025.
(r)In respect of the offence of theft (CC2020/288) the offender is sentenced to a term of 4 months of imprisonment, commencing on 2 February 2025 and ending on 1 June 2025.
(s)In respect of the offence of driving while unlicensed (CC2020/289) the offender is sentenced to a fine of $640. I allow no time to pay.
(t)In respect of the offence of possession of a drug of dependence (CC19/10641) the offender is sentenced to a term of 28 days of imprisonment, commencing on 23 March and ending on 19 April 2025.
(u)In respect of the offence of unlawful possession of stolen property (CC20/267) the offender is sentenced to a term of 3 months and 6 days of imprisonment, commencing on 23 March 2025 and ending on 28 June 2025.
(v)In respect of the offence of unlawful possession of stolen property (CC20/268) the offender is sentenced to a term of 3 months and 6 days of imprisonment, commencing on 23 March 2025 and ending on 28 June 2025.
(w)In respect of the offence of unlawful possession of stolen property (CC20/273) the offender is sentenced to a term of 1 month and 18 days of imprisonment, commencing on 23 March 2025 and ending 10 May 2025.
(x)In respect of the offence of unlicenced driver / rider (CAN290/2020) the charge is dismissed.
(y)In respect of the offence of unlicenced driver / rider (CAN10640/2019) the charge is dismissed.
(z)The total aggregate sentence imposed is a term of 5 years and 9 months of imprisonment, commencing on 29 September 2019 and ending on 28 June 2025.
(aa)I set a non-parole period of approximately 60 per cent of that head sentence, being 3 years and 5 months, commencing 29 September 2019 and ending on 27 February 2023.
| I certify that the preceding one hundred and eighteen [118] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson Associate: Date: |
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