R v McCauley
[2020] ACTSC 12
•31 January 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v McCauley |
Citation: | [2020] ACTSC 12 |
Hearing Date: | 31 January 2020 |
DecisionDate: | 31 January 2020 |
Before: | Mossop J |
Decision: | 1. The offender is sentenced to imprisonment for 27 months from 7 December 2018 until 6 March 2021. 2. The non-parole period commences on 7 December 2018 and ends on 6 April 2020. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – aid and abet aggravated burglary – residential building with occupants inside – sentencing of two co-offenders – offender more culpable than co-offender – poor criminal history – sentence of imprisonment |
Legislation Cited: | Criminal Code 2002 (ACT), ss 45, 312 |
Cases Cited: | R v Tauiliili [2020] ACTSC 11 |
Parties: | The Queen (Crown) Richard McCauley (Offender) |
Representation: | Counsel S Naidu (Crown) J de Bruin (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 114 of 2019 |
MOSSOP J:
Introduction
The offender, Richard William Tureiti McCauley, has pleaded guilty to the following indictable offence: one count of aid and abet aggravated burglary (in company, with intent to cause harm or threatening to cause harm) contrary to ss 312 and 45 of the Criminal Code 2002 (ACT), the maximum penalty being 20 years’ imprisonment, 2000 penalty units or both (SSCAN 2019/158).
His co-offender is Faima Losefo Tauiliili who is being dealt with at the same time: see R v Tauiliili [2020] ACTSC 11 (Tauiliili).
The charge on the indictment alleges that the offender and Mr Tauiliili entered or remained in a building, namely the residence at an address in Bodel Place, Ainslie, as trespassers with the intent to commit an offence that involved causing harm or threatening to cause harm to anyone in the building and were in the company of one another.
In fact, as the agreed facts disclose, the offender did not enter or remain in that residence. The offence is said to arise by reason of s 45 of the Criminal Code because the offender aided or abetted the aggravated burglary. Section 45 has the effect that he “is taken to have committed” the substantive offence by reason of his aiding and abetting. He accepts that he was reckless as to the commission of the burglary by his co-offenders. In particular, he accepts that he was reckless as to the possibility that his co-offenders intended to commit and offence that involved threats of, or causing harm to persons within the building.
Facts
The facts in relation to Mr McCauley’s offending were agreed. I summarised them in my reasons in Tauiliili:
6. During the early hours of 7 December 2019 Mr Tauiliili, his co-offender Mr McCauley and at least two unknown males attended an address in Bodel Place Ainslie, in a white Audi A4 sedan and a silver Toyota Camry. The residence is at the end of a cul de sac, and the vehicles were parked at the entrance of the cul de sac.
7. The residence is occupied by people who I will refer to as Mr XC and his wife Mrs KC. Their adult son TC and great-granddaughter UC were also residing there.
8. Sometime after 2.00am Mr Tauiliili, Mr McCauley and two males entered the backyard of the residence through the closed side gate. Whilst making their way to the back door a second closed side gate was forced open and damaged.
9. The occupants in the house could hear males yelling and trying to force entry into the house by kicking, banging and throwing items from the patio at the backdoor. They heard males scream “Let us in!”.
10. The backdoor consisted of a security screen and a glass sliding door, both of which were locked. The security screen door was ripped off and Mr McCauley kicked the glass sliding door. This shattered the glass and severely cut Mr McCauley’s lower right calf, causing him to bleed heavily.
11. Two males entered the residence and were confronted by Mr XC and his son TC. Mr XC is in his 70s. TC is in his 50s. Mr Tauiliili remained outside and looked on. TC got in a physical altercation with the males, and Mr XC used a billiard cue to hit one of them. The men then retreated back outside the house and joined Mr Tauiliili and Mr McCauley on the rear patio.
12. The men then threw items at Mr XC and TC from the rear patio area. A gas cylinder bottle was thrown at Mr XC’s head, causing him to sustain a laceration above his left eyebrow and bleed heavily. A full Corona brand beer bottle was removed from the outside fridge and thrown at TC’s head. He was struck above his left eyebrow, fell to the ground and was unconscious for a second. He sustained a laceration.
13. Mr XC yelled out to his wife Mrs KC to call the police. She did so with assistance from her great-granddaughter UC.
14. Mr Tauiliili and Mr McCauley exited the backyard via the side gates and went to the front yard. Mr Tauiliili removed his red shirt and used it to hide the lower half of his face.
15. The offenders saw a fully marked police car and began to run towards the entrance of the cul de sac. Mr Tauiliili ran towards the white Audi but it sped off before he could enter. The silver Camry also sped away.
16. Mr Tauiliili ran out of Bodel Place and turned right onto Stephens Street. A police officer in full uniform gave chase on foot. He yelled at Mr Tauiliili to stop but he refused. As a result of Mr Tauiliili’s fighting stance and aggressive behaviour, the police officer was required to deploy two bursts of capsicum spray to subdue Mr Tauiliili. He was eventually arrested.
17. He made admissions to police that he was very intoxicated by alcohol (10 out of 10) and that he had a couple of lines of cocaine at his cousin’s house prior to the incident.
18. Meanwhile, Mr McCauley ran out of Bodel Place and turned left on Stephens Street. He hid under some bushes near a fence, where he was eventually found by police. Mr McCauley was arrested, and an ambulance attended to treat the laceration to his leg. Blood droplets from Mr McCauley’s laceration trailed from the residence on Bodel Place to the site of his arrest.
19. After speeding away, the white Audi drove at speed along Limestone Avenue towards Anzac Parade. A short police pursuit ensued but was ultimately terminated by police. At 3.30am the Audi was found abandoned after colliding into a memorial on Anzac Parade. Inside were several items belonging to Mr McCauley, including his New Zealand passport, his Raiders Club membership card, handwritten documents containing his account details, his Asbestos Awareness card and his yellow Raiders jumper.
20. During the sentencing proceeding the Crown accepted as a fact that the occupants of the vehicles that attended the premises, including Mr Tauiliili and Mr McCauley, did not, at the time that they arrived at the premises, have any intention to harm anyone at the premises.
Objective seriousness
Clearly the offence of aggravated burglary is a serious one. It is more serious because it involved the burglary of a residential dwelling at night in circumstances where it is clear that those involved anticipated that there would be persons present. The motivation for the offending is unclear. It was a relatively brief incident, the actual offending taking only a few minutes.
In contrast to his co-offender Mr Tauiliili, the offender is proved by the admitted facts to have taken a very active role in the actions of the group. He was the one who actually broke the door of the premises so as to permit the two unidentified burglars to enter the house and confront the occupants. Breaking the door to the premises was not a simple matter. It involved smashing through a glass door at the rear of the premises. He was not involved in the confrontation with the residents. However, there is nothing to indicate that this was through a lack of intent or moral culpability as the wound that he sustained to his leg in the process of smashing through the glass door provides an alternative reason why he may not have continued into the premises.
Although he was present at the rear of the house when items were thrown at the two male occupants, he is not proved to have been the thrower in either case. For an aggravated burglary this is in the mid-range of objective seriousness. The manner in which he aided and abetted those who entered the premises means that his conduct is clearly significantly more serious than that of Mr Tauiliili, but not quite as serious as his unidentified co-offenders.
Subjective circumstances
The offender is 25 years old. He was born in New Zealand and is of Maori heritage. He reported a close connection with his Maori culture, speaking both fluent Maori and English.
He reported a traumatic childhood, witnessing substance abuse, violence and death from a young age. His mother gave him to his maternal grandparents at birth and they sent him to Australia at age 14, with the intention of preventing him from falling prey to antisocial influences.
The offender then resided in Perth with his maternal aunt. He lived with her until he was 17, when he then became homeless following a relationship breakdown with his aunt. He subsequently moved to New South Wales (NSW) where he connected with his older brother, who is reported to be antisocial.
The offender reported that the rest of his immediate family resides in New Zealand and as a result he does not have a close relationship with them.
In the 12 months prior to being remanded in custody for these offences, the offender moved cities for multiple work opportunities. Beginning in Queensland with his family, he then moved to Sydney for approximately nine months before again relocating to Canberra. In Canberra he resided with work friends in a share house and reported that if sentenced to a community-based order he would return to this arrangement.
The offender has been with his current partner for approximately seven years. He has two children, a seven-year-old daughter from a previous relationship and a four‑year‑old son to his current partner. The offender also refers to his partner’s two daughters from a previous relationship as his daughters. Apart from the offender’s biological daughter, all the children reside in Queensland with his partner in their mother’s house. He reported that his partner is a prosocial influence and motivates him to engage in a prosocial lifestyle.
The offender reported that he did not have success in school, attributing this to his chaotic home environment. He was expelled in Year 8. He has not attended school since, but has obtained his white card, asbestos and construction qualifications.
Prior to being remanded in custody he was employed in the construction industry as a form worker. He earned approximately $2400 fortnightly. He reported that should he be given a community-based order he would resume working for this employer. He has been employed whilst in custody at the Alexander Maconochie Centre.
The offender reported that his NSW friends are known to the criminal justice system. Prior to this offending he had formed new relationships with prosocial people in Canberra. Both the offender and his partner confirmed that this is the group of friends who support him to do well, and the offender indicated that he did not wish to associate with his NSW friends, as he understands how easily influenced he is by them.
When in the community the offender was a member of a football club. He spent a lot of time playing rugby and other recreational activities such as hiking and sightseeing.
A psychiatric review by Forensic Mental Health in custody found no evidence of mental illness. However, the offender and his partner advised ACT Corrections that he may benefit from counselling to address his childhood trauma.
The offender has an extensive history of illicit substance abuse. He started using cannabis aged seven and continued regular use for the majority of his life. Whilst he has made attempts to stop this use he has relapsed on multiple occasions. The offender also reported that he has experimented with every illicit substance available. He reported being addicted to methamphetamines at one stage in his life, but stated that he ceased this use.
He also reported issues with alcohol, stating that he would drink every day after work and consume 10 drinks each session on the weekend. The offender reported that in the 12 months prior to his remand in custody he had reduced his drinking to once every two months.
The pre-sentence report does not disclose whether the offender was under the influence of drugs at the time of the offending although the report (using somewhat unfortunate jargon) says “he identified his drug use was the primary contributor to his offence pathways”.
The author of the pre-sentence report was of the opinion that:
[the offender] appears to have few protective factors available to him. His primary criminogenic risks appear to be his drug use, mental health issues and antisocial peer interactions. Unless [the offender] commits to addressing these factors, his risk of reoffending is unlikely to reduce.
The offender was found suitable for a good behaviour order and a community service work condition.
Criminal history
The offender has a number of convictions as an adult. These include convictions in 2013 for failing to appear, possessing a prohibited drug, possession of equipment for administering prohibited drugs, entering enclosed lands without lawful excuse and being carried on a conveyance taken without the consent of the owner. He ultimately received a sentence of imprisonment of three months for this last offence. In 2014 he committed the offence of break and enter and was given a sentence of 18 months’ imprisonment with a non-parole period of six months. In 2014 and 2015 he committed five other minor motor vehicle offences. In 2015 he was sentenced to an aggregate of 6 months’ imprisonment for common assault, assault occasioning actual bodily harm, destroying or damaging property and contravening an apprehended violence order. In 2016 he was sentenced to three years’ imprisonment with a non-parole period of one year and 10 months for the offence of break, enter and steal committed in 2015. He committed the offences of shoplifting and having goods in custody suspected of being stolen in 2018. He committed two further motor vehicle offences in 2018.
Plea of guilty
The offender was initially charged with aggravated burglary, property damage and two assaults upon the occupants. On 8 February 2019 he pleaded not guilty to all charges.
On 13 June 2019 a new indictment was signed charging the offender with one count of aggravated burglary and two counts of assault occasioning actual bodily harm.
On 13 November 2019 the Crown offered to accept a plea of guilty to a charge of aid and abet aggravated burglary and to discontinue the other two counts. On 18 November 2019, the first day of the trial, the offender pleaded guilty to one count of aiding and abetting aggravated burglary on a new indictment dated 18 November 2019.
For the reasons given in Tauiliili I will reduce the sentence that I impose by 10%.
Time in custody
The offender has been in custody since 7 December 2018, a period of 13 months and 24 days prior to today.
Consideration
The offender was involved in an objectively serious home invasion, albeit one which was not planned in advance. He played a significant role in aiding and abetting those who entered the premises. He has, in common with many offenders, had a disrupted upbringing and limited formal education. He has a poor criminal history which reduces the capacity for leniency. The evidence only permits guarded optimism about his future conduct. The positives being employment and family, the negatives being drug use and antisocial associates.
Specific and general deterrence, punishment, denunciation of the offending and protection of the community are all relevant sentencing considerations. So too is recognition of harm done to the victims. The potential for rehabilitation of the offender must also be considered, particularly having regard to his relative youth and the association between his criminal conduct and illicit drug use.
I have taken into account the cases to which I was referred in submissions as indicating current sentencing practice.
Clearly having regard to the nature of the offending, only a sentence of imprisonment is appropriate. The appropriate starting point is a sentence of 30 months’ imprisonment, reduced to 27 months on account of the plea of guilty. The non-parole period will be 16 months which is just under 60% of the head sentence. This gives him the benefit of a shorter period of full-time detention, largely because of his youth and despite his poor criminal history and guarded prognosis for his future conduct. The sentence will be backdated to 7 December 2018.
Orders
The orders of the Court are:
1. The offender is sentenced to imprisonment for 27 months from 7 December 2018 until 6 March 2021.
2. The non-parole period commences on 7 December 2018 and ends on 6 April 2020.
| I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 13 February 2020 |