R v McLaws
[2017] ACTSC 355
•13 November 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v McLaws |
Citation: | [2017] ACTSC 355 |
Hearing Date: | 10 November 2017 |
DecisionDate: | 13 November 2017 |
Before: | Mossop J |
Decision: | See [17] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – aggravated burglary – transfer charge to be taken into account for sentencing – minor theft – late guilty plea in the face of a strong prosecution case – low range of objective seriousness – previous offending – specific deterrence |
Legislation Cited: | Crimes Act 1900 (ACT), s 309 Crimes (Sentence Administration) Act 2005 (ACT) Criminal Code 2002 (ACT), ss 312, 321 |
Cases Cited: | R v Campbell [2010] ACTCA 20 |
Parties: | The Queen (Crown) Christopher Todd McLaws (Offender) |
Representation: | Counsel C Wanigaratne (Crown) T Pasipanodya (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Prudential Legal Solutions (Offender) | |
File Numbers: | SCC 61 of 2017 and SCC 62 of 2017 |
MOSSOP J:
Introduction
Christopher McLaws has pleaded guilty to one count of aggravated burglary and a transferred charge of minor theft which is to be taken into account in the sentencing for aggravated burglary pursuant to pt 4.4 of the Crimes (Sentencing) Act 2005 (ACT).
The maximum penalty for the offence of aggravated burglary under s 312 of the Criminal Code 2002 (ACT) is imprisonment for 20 years or a fine of $300,000 or both.
The maximum penalty for minor theft under s 321 of the Criminal Code is imprisonment for six months or a fine of $7,500 or both.
Facts
On 18 October 2016 Mr McLaws and his co-offender Mr Fleet drove to a residence in O’Connor which was fenced off in preparation for demolition. It was under the control of a building company that had not given permission to Mr McLaws or Mr Fleet to enter or remove any items from it. It was a house which was the subject of the “Mr Fluffy” buyback and demolition program. They cut one of the chain links of the padlocked chain that was used to secure the fencing around the property. They got into the backyard of the residence. Mr Fleet began to pull copper piping off the back wall of the residence. Mr McLaws tried to open the back door. Mr McLaws then broke into the area underneath the house by removing an access door. While Mr Fleet continued to remove copper piping from the wall of the residence Mr McLaws searched the underground area of the residence. While at the residence Mr McLaws and Mr Fleet removed approximately 7 kilograms of copper pipe which they placed in one of the three bags that they had brought with them. Police had been called to the residence as a result of a report by a neighbour who had observed Mr McLaws and Mr Fleet as they approached the house. Two police officers arrived at the premises and ultimately arrested both Mr McLaws and Mr Fleet for burglary. Mr Fleet admitted that he owned a bag containing some battery-operated tools, a screw driver, drill bits, nail removal-pliers, an angle grinder and a small socket set. Mr McLaws admitted that he owned a bag containing a number of items suitable for removing items such as copper pipe from premises.
Mr McLaws made admissions to the police about what was occurring and his involvement.
Plea of Guilty
The offender was first before the court on 27 October 2016. The plea of not guilty was entered on the fourth appearance. The proceedings were committed for trial on 15 March 2017. He pleaded guilty on 21 July 2017 to the aggravated burglary count in full satisfaction of the indictment that had been filed. The plea of guilty was late and in the face of a strong prosecution case, I will allow a discount of approximately 10 per cent on the sentence I would otherwise have imposed by reason of the plea of guilty.
Objective seriousness
The burglary was an aggravated burglary because the offender was in company. The property was not occupied. The premises were due to be demolished. The offences occurred during the day. It was however planned in that the offender was well‑prepared with equipment to enter the premises. It is in the low range of objective seriousness for this offence.
Similarly the minor theft which I must take into account is in the low range of objective seriousness having regard to the value of the items stolen and the fact that the material was stolen from a property which was going to be the subject of demolition and in relation to which there is no evidence that the copper would have been otherwise salvaged or recycled.
Subjective circumstances
The offender is 44 years old. He was raised by his stepfather and his mother. He got into trouble at an early age, having a number of convictions in the Childrens Court. He had two periods in juvenile detention. He has six children from two partners. He has no contact with the older children from his first partner. The three children with his second partner are all in foster care. He is presently of no fixed address staying with friends or his ex-partner. He moved to the ACT 13 years ago for work. His relationship with his partner is currently “on and off”. He previously worked in labouring jobs. He ran his own glazing business for a short period. He is presently on a disability-support pension due to suffering from depression. He has not worked for four years. In addition to depression, the evidence discloses that he has also at some time had a diagnosis for schizophrenia. He has had admissions to the Adult Mental Health Unit due to psychotic and delusional behaviours. He has been prescribed anti-psychotic medication but has only been taking it on and off. While in custody in 2017 he was given a diagnosis of bipolar disorder type I with psychotic features and substance abuse. His attitudes were described in a psychologists’ report in 2017 as consistent with a diagnosis of antisocial personality disorder. Dr Samuels, a psychiatrist, diagnosed him in 2017 as having bipolar mood disorder. He noted that his symptoms would be adequately controlled if he continued to use olanzapine. He is presently receiving support from the Detention-Exit Community Outreach Program. He has a history of drug use. Most significant is his use of cannabis, which he has used since the age of 16. He is not motivated to change his cannabis use. His use of amphetamines is not disclosed in any detail. He appears to have been suffering from some form of psychosis when assessed under s 309 of the Crimes Act 1900 (ACT) in February 2017.
Criminal history
Mr McLaws has a criminal history which, insofar as is it involves offences in the ACT, goes back to 1989. As an adult he has committed the offences of using an uninsured and unregistered vehicle and driving while suspended. In 2013 and 2014 he was convicted of failing to appear after a bail undertaking. He has also been convicted in 2014 of obstructing or resisting a territory public official and common assault. He was also convicted of failing to appear after a bail undertaking in that year. In 2017 he was convicted of common assault and sentenced to imprisonment for 10 months, suspended after 7 months and 25 days.
In New South Wales he had a number of convictions as a child. From 1990 he has six convictions as an adult for stealing (1991), a conviction for breaking and entering and stealing (1991), a conviction for possess prohibited drug (1992), convictions for five counts of break enter and steal (1992), a conviction for break and enter and steal (1993), a conviction for possess prohibited drug (1993), a conviction for resist police (1993), convictions for seven counts of break enter and steal (1996), a conviction for drive with the licence cancelled, a conviction for unregistered vehicle, uninsured vehicle and possess housebreaking implements (1998), a conviction for possess housebreaking implements (1999), a conviction for drive unregistered and uninsured without a P plate and with number plates on to deceive (1998), a conviction for use uninsured unregistered vehicle, drive while disqualified and use plates calculated to deceive (1999), a conviction for drive while disqualified (2000), a conviction for cultivate prohibited plant and possess prohibited drug (2002), convictions for dangerous driving and speeding (2007), a conviction for common assault (2009) and a conviction for stalking (2009).
In Queensland, he has convictions from 1997 for stealing and assault occasioning actual bodily harm while in company.
He has spent 16 days in custody attributable to this offence.
The offender has a poor criminal history. Although similar offending is a substantial time in the past, the fact that he would engage again in such conduct demonstrates that the deterrent effect of the penalties then imposed is no longer sufficient and there is a need for specific deterrence.
Having regard to the seriousness reflected in the maximum penalty and the criminal history of the offender, I consider that no sentence other than a sentence of imprisonment is appropriate. Balancing the low objective seriousness with the need for specific and general deterrence, I consider the appropriate starting point is a sentence of imprisonment of 12 months. This will be reduced to 11 months on account of the plea of guilty. As to how that is to be served, I do not consider that an Intensive Corrections Order is appropriate having regard to Mr McLaw’s lengthy criminal history and the absence of motivation to address his ongoing cannabis use.
However, given the period of time since his previous offences, I consider that it is appropriate to partially suspend the sentence of imprisonment. This will both punish the offender and provide specific and general deterrence as well as provide a significant incentive to remain free of offending conduct during the period when the sentence is imposed. A period of imprisonment of five months will be sufficient for these purposes. In reaching these conclusions, I have taken into account the minor theft involving the copper pipe in the manner explained in R v Campbell [2010] ACTCA 20 at [46]–[50]. The sentence will be backdated to take into account the 16 days of custody attributable to this offence.
Orders
The orders of the Court are:
1. The offender is convicted of aggravated burglary (CC2016/11312) and sentenced to 11 months’ imprisonment from 28 October 2017 to 27 September 2018.
2. The sentence is to be suspended after serving five months’ imprisonment, from 28 October 2017 to 27 March 2018, upon the offender giving an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months.
| I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 7 December 2017 |
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