R v McDowall

[2020] ACTSC 184

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v McDowall

Citation:

[2020] ACTSC 184

Hearing Date:

8 July 2020

DecisionDate:

8 July 2020

Before:

Elkaim J

Decision:

See [19]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –burglary – theft – Intensive Correction Order – reparation orders

Legislation Cited:

Criminal Code 2002 (ACT) ss 45, 308, 311
Crimes (Sentence Administration) Act 2005 (ACT) s 42
Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 19(1), 33

Cases Cited:

R v CA(No 2) [2016] ACTSC 371; 316 FLR 49

Parties:

The Queen (Crown)

Stephen Scott McDowall (Offender)

Representation:

Counsel

M Lucero (Crown)

P Bevan (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Bevan & Co Lawyers (Offender)

File Number:

SCC 286 of 2019

ELKAIM J:

1. On 25 May 2020 the offender pleaded guilty to three counts in an indictment dated the same day. The three offences and their maximum penalties are as follows:

(a)One count of being knowingly concerned with burglary (SCCAN81/2020), contrary to s 311 of the Criminal Code 2002 (ACT) by virtue of s 45 of the Criminal Code. The maximum penalty is 14 years’ imprisonment, a fine of $210,000 or both; and

(b)Two counts of being knowingly concerned with theft (SCCAN82/2020; SCCAN83/2020), contrary to s 308 of the Criminal Code by virtue of s 45 of the Criminal Code. The maximum penalty is 10 years’ imprisonment, a fine of $150,000 or both.

1. The offender was originally charged with the substantive offences of burglary and theft. However, his pleas of guilty were to a fresh indictment of being knowingly concerned in these offences.

1. On 14 April 2017 a residence in Mawson in the Australian Capital Territory was broken into. The first theft count relates to goods stolen from a resident of the house. The second count relates to the property of that resident’s daughter who was visiting at the time.

1. A lot of the property stolen from the resident was jewellery which had a collective value of about $32,000. The property taken from the other victim was more diverse but included a passport and an amount of cash. The total value was about $3,300.

1. As one would expect, and as stated in the Victim Impact Statement by the resident, the offence was very upsetting to the victim who “suffered constant anxiety and severe trauma” when she discovered that her home had been broken into. She also mourns the loss of “personal expensive and sentimental items” and has found coming back home at night a difficult experience.

1. In my view the offences, which fortunately did not involve any personal threat to the occupants of the residence, should be viewed as just below medium objective severity.

1. The offender was born in 1966.  He was brought up in the Mormon faith and has spent a good deal of time in the United States of America. He is one of 11 siblings. He keeps in touch with them. The offender has…