R v McCarthy (No 2)
[2016] ACTSC 375
•12 December 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v McCarthy (No 2) |
Citation: | [2016] ACTSC 375 |
Hearing Date: | 12 December 2016 |
DecisionDate: | 12 December 2016 |
Before: | Murrell CJ |
Decision: | Sentenced to 18 months’ imprisonment, suspended on an 18 month good behaviour order with conditions. Released on a $50.00 Commonwealth recognizance with conditions. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – dishonestly appropriate Commonwealth property – Burglary – drug rehabilitation – continued compliance – sentence imposed |
Legislation Cited: | Crimes Act 1914 (Cth) s 20 Crimes (Sentencing) Act 2005 (ACT) s 12 |
Cases Cited: | R v McCarthy [2016] ACTSC 12 |
Parties: | The Queen (Crown) Damian Paul McCarthy (Offender) |
Representation: | Counsel Mr D Sahu Khan (ACT Crown) Mr T Ellison (Cth Crown) Mr D Volodin (Offender) |
| Solicitors ACT Director of Public Prosecutions (ACT Crown) Commonwealth Director of Public Prosecutions (Cth Crown) ACT Legal Aid (Offender) | |
File Number: | SCC 215 of 2015; SCC 154 of 2016 |
MURRELL CJ:
Commonwealth matter
On 1 November 2014, the offender committed the offence of dishonestly appropriating Commonwealth property. On 29 September 2015, he pleaded guilty.
On 14 December 2015, the offender was admitted to the Karralika Therapeutic Community and commenced full‑time residential rehabilitation.
On 4 February 2016, I indicated the sentence that I would likely impose for that offence and stated my reasons in full: R v McCarthy [2016] ACTSC 12.
I indicated that I would impose a sentence of 18 months. But for the rehabilitation program that he was undertaking, I would have fixed a non-parole period of nine months. However, because the offender’s rehabilitation program was progressing well, I stood the matter over to 3 June, to 2 September and then to today, 12 December 2016.
The offender continues to progress well in rehabilitation. The most recent report states that he commenced the Nexus Program on 22 November 2016. The recommended period in the Program is three to six months, but it depends upon the individual. The program is described as "Nexus and Transition," and it involves reintegration into the community.
Reintegration is a vulnerable period for a recovering addict because they are confronted with many challenges when moving back into the community. The offender indicated from the bar table that his primary motivator to continue rehabilitation is to set his personal life in order, regain relationships, and commit to a pro-social lifestyle in all respects. I am satisfied that it is his internal motivator that is the primary driver for his recovery. It is not necessary to maintain the "sword of Damocles" by continuing to adjourn the matter to monitor his progress.
Consequently, I propose to sentence him in accordance with my reasons of 4 February 2016 to 18 months' imprisonment less six months' imprisonment to account for the 12 months spent at Karralika and then to suspend that sentence for 18 months.
In relation to the Commonwealth matter, the offender is convicted and sentenced to imprisonment for 12 months. Under s 20 of the Crimes Act 1914 (Cth), I order that he be released forthwith upon giving security of $50.00 upon the conditions set out in [13] below.
Fresh burglary charge
In relation to the burglary committed on 30 January 2015, the offender pleaded guilty at an early opportunity and should receive a 25% discount for the utilitarian value of the plea, albeit in the face of a strong Crown case based on forensic matching.
The objective seriousness of the offence is low to mid-range in the sense that the offence was at residential premises—somebody's home—and their privacy was invaded. However, it occurred in the daylight when no-one was at home. On the other hand, there was some ransacking. The property stolen was of minimal value (some drugs), but there was damage, which would have been upsetting to the occupants.
A reparation order is sought and I make a reparation order for $298.63 in favour of ACT Housing.
The offender is sentenced to 18 months' imprisonment to commence on 12 March 2017. I suspend the whole of that sentence upon the offender entering into a good behaviour order for a period of 18 months from 12 March 2017. The sentence and the good behaviour order will run to 11 September 2018.
In relation to both the s 20 of the Crimes Act 1914 (Cth) order and the suspended sentence good behaviour order, I imposed the following conditions:
(a)The offender is to report to ACT Community Corrections, if not in person then by telephone, by 4:00 pm today, 12 December 2016.
(b)The offender is to submit to supervision by ACT Corrective Services and comply with all requests and directions.
(c)The offender is to continue to engage with Karralika Programs, pursuing the Nexus and Transition Program and any other requirement, treatment or rehabilitation measure that is proposed by Karralika Programs.
It is a further condition of the 18-month good behaviour order that he comply with the reparation order that I have made in favour of ACT Housing.
| I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 20 December 2016 |