R v McInnes (No 2)

[2020] ACTSC 110

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v McInnes (No 2)

Citation:

[2020] ACTSC 110

Hearing Dates:

15 October 2019; 13 December 2019; 2 March 2020; 4 May 2020

DecisionDate:

4 May 2020

Before:

Elkaim J

Decision:

See [14]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – unlawful possession of stolen property – attempt theft – breach of Good Behaviour Orders

Legislation Cited:

Bail Act 1992 (ACT) s 49
Crimes (Sentence Administration) Act 2005 (ACT) s 42
Criminal Code 2002 (ACT) ss 308, 324

Cases Cited:

R v McInnes [2017] ACTSC 207

Parties:

The Queen (Crown)

Joseph Paul McInnes (Offender)

Representation:

Counsel

L Sutton (Crown)

T Trotter (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Offender)

File Numbers:

SCC 241 of 2019; SCC 271 of 2019

ELKAIM J:

1. On 16 September 2019 the offender entered pleas of guilty to three charges in the ACT Magistrates Court. The charges and their maximum penalties are:

a) One charge of attempted theft (CC2019/8113), contrary to s 308 of the Criminal Code 2002 (ACT). The maximum penalty is 10 years’ imprisonment, a fine of $160,000 or both; and

b) Two charges of unlawful possession of stolen property (CC2019/8114; CC2019/8115), contrary to s 324 of the Criminal Code. The maximum penalty is 6 months’ imprisonment, a fine of $8,000 or both. 

1. The matters were committed to the Supreme Court for sentence. When the matter came on before me on 15 October 2019, I referred the offender for an Intensive Correction Order (ICO) assessment. The author of the ICO report dated 22 November 2019 assessed the offender as not suitable.

1. The details of the offences can be found in the Statement of Facts. In summary the offences were committed on 17 July 2019. The offender happened upon a parked and unlocked vehicle. He rummaged through the vehicle and located some coins which he put into his pocket. The owner of the vehicle came along and surprised him. There was a struggle. The police were called.

1. During the struggle coins and bankcards fell from the offender’s pockets. The bankcards were stolen property. Some of the coins had previously been located in the motor vehicle.

1. These are petty offences. But for the breaches of Good Behaviour Orders they would no doubt have been dealt with in the Magistrates Court. Their objective severity is limited.

1. On 13 December 2019 the offender was to be sentenced by me but failed to appear. A warrant for his arrest was issued under s 49(2) of the Bail Act 1992 (ACT) for his non‑appearance but it was later revoked that day as it was discovered that he had not been notified of this court date. On 28 January 2020, the offender failed to appear and a warrant was issued. On 21 February 2020 the warrant was executed and, no application for bail being made, the offender was remanded in custody.

1. On 2 March 2020 an updated ICO assessment was ordered by me. This time, the author of the ICO report has found the offender to be “suitable”.

1. This is the third time the offender has come before me for sentence. Conviction for these offences will place him in breach of three suspended sentences and Good Behaviour Orders that I previously imposed on 4 August 2017, and again on 15 August 2018.

1. On 4 August 2017 I imposed the following orders:

a)     Aggravated robbery (CC2017/785) – 18 months’ imprisonment suspended immediately on condition of entering into a Good Behaviour Order for 2 years.

b)     Minor theft (CC2017/786) – 3 months’ imprisonment suspended immediately on condition of entering into a Good Behaviour Order for 2 years.

c)     Aggravated robbery (CC2017/784) – 18 months’ imprisonment suspended immediately on condition of entering into a Good Behaviour Order for 2 years.

d)     Aggravated robbery (CC2017/783) – 18 months’ imprisonment suspended immediately on condition of entering into a Good Behaviour Order for 2 years.

e)     Obtain property by deception (CC2017/1374) – 1 month’s imprisonment suspended immediately on condition of entering into a Good Behaviour Order for 2 years.

1. On 15 August 2018, by which time the only outstanding sentences were for the three aggravated robberies, I cancelled the Good Behaviour Orders imposed in respect of each offence and re-sentenced the offender to 18 months’ imprisonment on each charge, suspended from 24 December 2018 on condition of entering into a Good Behaviour Order for 2 years.

1. As of today the offender has 13 months and 21 days left of his previously suspended sentences.

1. The offender’s background can be found in my sentencing remarks on 4 August 2017
   (R v McInnes [2017] ACTSC 207). The only significant update to the history is that the offender now seems to be in a current and supportive relationship.

1. Another development is that the offender has been accepted into a residential rehabilitation program in Sydney with an estimated commencement date of June 2020. I do not know if this date will be affected by the COVID-19 emergency. The offender is presently undertaking the SOLARIS therapeutic program while in custody. He does seem to be making a real effort at rehabilitation. This is no doubt why the most recent assessment for an ICO is favourable to the offender. This may be his last chance to put his life in order and avoid lengthy future prison terms.

1. I make the following orders:

(a)Fresh offences:

(i)For the offence of attempted theft (CC2019/8113), the offender is sentenced to 67 days’ imprisonment commencing on 28 February 2020 and ending today.

(ii)For the offence of unlawful possession of stolen property (CC2019/8114), the offender is sentenced to 67 days’ imprisonment commencing on 28 February 2020 and ending today.

(iii)For the offence of unlawful possession of stolen property (CC2019/8115), the offender is sentenced to 67 days’ imprisonment commencing on 28 February 2020 and ending today.

(b)Breach offences:

(i)For the offence of aggravated robbery (CC2017/785), the offender is sentenced to 15 months’ imprisonment commencing today and ending on 3 August 2021.

(ii)For the offence of aggravated robbery (CC2017/784), the offender is sentenced to 15 months’ imprisonment commencing today and ending on 3 August 2021.

(iii)For the offence of aggravated robbery (CC2017/783), the offender is sentenced to 15 months’ imprisonment commencing today and ending on 3 August 2021.

I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: 4 May 2020

(iv)Each of the above sentences for aggravated robbery is to be served by way of an Intensive Correction Order. The offender is to accept the supervision of ACT Corrective Services and comply with the core conditions specified in s 42 of the Crimes (Sentence Administration) Act 2005 (ACT).