R v Parker

[2018] ACTSC 55

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Parker

Citation:

[2018] ACTSC 55

Hearing Date:

8 February 2018

DecisionDate:

14 February 2018

Before:

Mossop J

Decision:

See [49]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – joint commission burglary – joint commission theft – burglary – theft – robbery – property damage – offences committed over short period – general and specific deterrence – custodial sentence – reparation order declined

Legislation Cited:

Crimes Act 1900 (ACT), s 116(3)

Crimes (Sentence Administration) Act 2005 (ACT), s 116ZQ

Criminal Code 2002 (ACT), ss 308, 309, 311

Parties:

The Queen (Crown)

Beau Parker (Offender)

Representation:

Counsel

S Saikal-Skea (Crown)

R Davies (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Offender)

File Numbers:

SCC 155 of 2017

SCC 315 of 2017

SCC 337 of 2017

SCC 338 of 2017

MOSSOP J:

Introduction

1. The offender, Beau Parker, has pleaded guilty to 16 charges.  They are, in chronological order, as follows:

(a)9 February 2017: joint commission burglary (CC2017/8620) and joint commission theft (CC2017/8619);

(b)21 February 2017: three counts of theft (CC2017/6791, CC2017/6792, CC2017/6793) and one count of burglary (CC2017/6378);

(c)27 February 2017: burglary (CC2017/11142), theft (CC2017/11301) and property damage (CC2017/12129)

(d)1 March 2017: burglary (CC2017/4495) and theft (CC2017/5799);

(e)2 March 2017: burglary (CC2017/4441) and theft (CC2017/4744);

(f)5 March 2017: robbery (XO2017/31243); and

(g)6 March 2017: burglary (CC2017/3543) and theft (CC2017/3544).

1. The maximum periods of imprisonment available for these charges are as follows:

(a)robbery (Criminal Code 2002 (ACT), s 309), 14 years;

(b)burglary (Criminal Code, s 311), 14 years;

(c)theft (Criminal Code, s 308), 10 years; and

(d)property damage (CrimesAct 1900 (ACT), s 116(3)), two years.

Facts

1. The facts relevant to the offences will be described by reference to the date upon which those offences occurred.

9 February 2017

1. The charges for this date relate to a burglary of a house in Chisholm.  One of the owners returned home from work to find the rear glass sliding door and laundry door were wide open.  The handle of the sliding glass door had been damaged and a fly screen had been removed and damaged.  The house had been ransacked.  Many items had been stolen.  The items stolen included a white wedding dress, various items of electronic equipment, jewellery, passports, gift cards and birth certificates.  The value of the stolen items was $19,748.  Every room on the premises had been extensively searched.  Fingerprints from the damaged fly screen matched those of the offender.  The burglary was committed in conjunction with another offender, a Natasha Smith.  The versions of events given by
   Ms Smith and the offender to police differed substantially.  The offender will be sentenced on the basis that each offence was jointly committed. He made admissions to police, namely that Ms Smith asked him to help break into the property.  He removed the rear fly screen on the back of the house.  He then returned to Ms Smith’s house, which was about four minutes away, to care for her children.  Ms Smith then returned with a wedding dress and documents in a blue folder.  She subsequently brought back a safe from the house to her house.

1. Police subsequently found a wedding dress, a counterfeit drivers licence document and a diary including personal information about one of the owners of the burgled house.

1. A reparation order is sought in the sum of $1100.  That was the excess under the insurance policy held by the owner of the house.  The documentary evidence establishes that that excess was incurred.

21 February 2017

1. The charges for this date relate to a burglary of a house in Isaacs.  The owner found that the residence had been ransacked and was no longer secure.  She identified a glass sliding door accessible from the backyard as being a possible point of entry.  Fingerprints towards the top of the glass sliding door’s exterior matched the offender’s.  On
   23 February 2017, police recovered a stolen motor vehicle on Northbourne Avenue.  The main controls of the vehicle were subject to forensic analysis and DNA matching that of the offender was located on the controls.  Certain items found within the vehicle matched property stolen from the Isaacs house.

1. The property stolen from the house was substantial.  Each of the three counts of theft relate to property stolen from one of the residents of the house.  The items stolen included electronic items, jewellery, perfume and cash – with a total value of $22,026 (being $9981, $9375 and $2670 relating to goods of each of the residents respectively).  The property recovered from the vehicle was valued at $2135, therefore the net value of the property lost to the residents of the house was $19,891. 

1. Each of the residents of the house provided a victim impact statement which indicated:

(a)the lack of safety that they felt following the incident;

(b)their mental distress;

(c)the loss of items of personal value to them, including personal and sentimental information on the electronic items; and

(d)the loss of savings.

27 February 2017

1. On 27 February 2017, the offender broke into a house at Heagney Crescent, Gilmore.  He did so by breaking the window into the dining room.  He escaped from the premises as the owner arrived home.  He stole jewellery, passports, personal effects and cash worth approximately $10,000 from the premises.  He was identified by DNA and finger prints left at the scene.

1 March 2017

1. The charges for this date relate to a burglary of a property in Richardson.  Access to the property was obtained via a glass sliding door and security screen.  The metal security screen was bent upwards and away from the frame of the front sliding door.  Property stolen included house and car keys, a laptop, cordless drill, cordless phone, web camera, phone charger, SD card reader and computer keyboard, as well as some coins.  A review of footage from a security camera within the house showed a person which the owner did not recognise.  Bloodstains on both garage door handles were found to contain DNA that match that of the offender.  Fingerprints from the exterior of the front glass sliding door of the house matched the offender’s.

2 March 2017

1. This was a burglary of a property in Bonython.  The offender obtained access to the property by smashing a glass sliding door.  A small amount of blood was found on a wall inside the premises.  DNA in this blood was identified as belonging to the offender.  A substantial amount of property had been stolen from the house, being largely items of jewellery, electronic items, clothing and cash.  The total value of the stolen property was $16,180.

1. A victim impact statement was read which indicated that after the burglary and before the arrest, a family member or friend would stay “on watch” all night.  This had an impact upon the university studies of the son of the owner of the property.  It also caused anxiety for the daughter of the owner who went to stay with a relative for almost a month because she did not feel safe at home.  Financial losses were incurred because of the requirement to pay an excess on the house insurance, as well as the fact that the insurance did not cover all items and, in some cases, covered less than the total value of the items.  Further, the owner incurred expenses installing a security system and additional window and door security.  The theft of car keys resulted in the replacement of car locks which was only partially covered by insurance.  Some of the items stolen were of sentimental value and cannot be replaced.  The owners have suffered ongoing anxiety which continues today.

5 March 2017

1. On 5 March 2017, the victim, a male, was at the Pine Island Nature Reserve on Pine Island Road in Greenway.  It appears, from facts which are not necessary to set out, that he was there with the intention of engaging in a sexual act with another person in the toilet block.  The offender was also there and acted as though he was interested in a sexual encounter.  No such sexual encounter occurred.

1. Having left the toilet block, the offender demanded from the victim his mobile phone.  The victim retrieved his mobile phone from his car and handed it over.  The offender also demanded the case to the mobile phone and threatened: “I’ll smash you and I’ll smash your fucking car as well”.

1. At the victim’s request, he was allowed to keep his driver’s licence and Medicare card.  The offender also demanded a 9ct yellow gold chain which the victim was wearing round his neck.  When asked why, the offender said: “Because I can sell it”.  The offender left.  The victim was shaking and also left.

6 March 2017

1. The next day, 6 March 2017, sometime between 7:30am and 5:25pm, the offender entered, as a trespasser, the house of the person that he had robbed the day before and took the following items of property:

(a)a brown Acer laptop;

(b)a HP laptop;

(c)a Samsung tablet computer;

(d)a 7 inch Pendo computer;

(e)a black iPod in an armband;

(f)house keys to 4 different properties;

(g)a keyless entry device for the victims vehicle;

(h)jewellery; and

(i)coins and rare notes.

1. On 9 March 2017, the offender was intercepted by police at Pine Island.  His vehicle was searched.  The stolen Acer laptop was recovered from his vehicle.

1. The offender’s fingerprint was located on an item in the victim’s living room.

Objective seriousness

1. The burglaries were in the mid-range of objective seriousness.  They were burglaries of residential premises.  None involved any confrontation with an occupant of the premises, although the burglary on 27 February 2017 came close.  Each of them involved a forced entry to the premises.  The exception, in terms of the objective seriousness, is the burglary on 9 February 2017 in relation to which the offender was a subordinate player in the jointly committed offence.  Because of his subordinate role, I would assess this offence as in the low to mid-range of objective seriousness.

1. Each of the thefts were in the mid-range of objective seriousness having regard to the value of items stolen and the fact that the thefts were from residential premises.

1. The robbery was in the low to mid-range of objective seriousness because it involved threats rather than physical violence and the value of items stolen was not that great.

Subjective circumstances

1. The subjective circumstances of the offender are disclosed in the Pre-Sentence Report and various other documents that were tendered.

1. The offender is 34 years old.  He identifies as Aboriginal.  He reported that he experienced a difficult childhood because of his stepfather’s physical and emotional abuse.  He has positive relationships with two of his four siblings.  He had a good relationship with his mother.  He has been in a relationship with his current partner for nine years.  His partner suffers from both physical and mental health issues.

1. He resided in private rental accommodation with his partner and two friends.

1. He completed school until Year 10.  He reported being bullied at school because of his homosexuality.  Since been remanded at the Alexander Maconochie Centre, he has engaged in the tertiary preparation program with good results.  He has also completed other programs there.

1. He has held positions within the hospitality industry for most of his adult life.  Between 2012 and 2015 he was the paid carer for his partner’s mother.  In 2016 he cared for his own mother until she died.  He anticipates being able to get full-time employment as a barista upon release from custody.

1. He commenced using alcohol at the age of 13.  Between the ages of 18 and 21 he would binge drink on weekends.  His use of alcohol has reduced since then.  However, a
   self-reported alcohol use tool assessed his alcohol use in the preceding 12 months as being risky or hazardous.

1. He has a history of poly-substance use, commencing with cannabis at age 11, becoming a regular user by age 17.  He began using amphetamine at 17, increasing up to 2 or 3g weekly.  At age 20, he entered into a residential rehabilitation program in Melbourne for 12 weeks which helped reduce his amphetamine use.  Between the ages of 20 and 25 he experimented with MDMA.  He also occasionally used heroin from the age of 26 years and is on pharmacotherapy while in custody.

1. He claimed to be abstinent from illicit substances from 25 years of age up until the death of his mother in November 2016.  He returned to the use of methamphetamine for four to five months up until the current offences.  His use increased up to 2 to 3g per day.  A self-assessment tool administered in relation to his illicit substance use identified the need for further assessment and intervention.

1. The Pre-Sentence Report discloses, in general terms, a mental health condition for which he is being treated with medication whilst in the Alexander Maconochie Centre, but does not disclose details.  The Court Alcohol and Drug Assessment Service Report identifies that he had been diagnosed with bipolar type 1 and borderline personality disorder, both of which appear to be relatively well managed.

1. He accepted full responsibility for his actions and attributed his offending behaviour to his use of illicit substances and alcohol.

1. He is assessed as being at a medium-risk of general reoffending because of his lack of employment, his substance abuse and his mental health issues.  He is assessed as suitable for community service work.

Criminal history

1. The offender has a limited criminal history.  In 2005, he was fined in Western Australia for driving without a driver’s licence.  In 2007, he was given a non-conviction order in Victoria in relation to charges of burglary, theft, going equipped to steal and possessing cannabis.  In 2008, he was given a non-conviction order in Victoria in relation to an offence which occurred between 2003 and 2006 involving obtaining a financial advantage from a Commonwealth entity.  In 2017, he was convicted in the ACT of possessing cannabis, possessing a knife without reasonable excuse and riding or driving a motor vehicle without consent.  He was also convicted in NSW of two counts of receiving stolen property, damaging property and possessing a prohibited drug.

Other evidence

1. The offender tendered a letter from the drug rehabilitation centre called Arcadia House indicating that the offender has a bed available in a 12 week transition program commencing on 5 March 2018.  This comprises eight weeks of a residential program, followed by four weeks of a daily programme.

1. He also tended evidence from a former employer, dated 19 March 2017, who had employed him at a cafe in 2010 and 2011.  The reference contrasts the outlook of the offender at that time with the situation in which he found himself prior to Christmas 2016.  It describes him as a “very kind, caring, considerate & decent man”.

1. He tendered a letter to the Court written by himself which described the courses and programs that he has done whilst in custody, including a tertiary preparation program through the University of Southern Queensland.  He indicates that he believes he has learned his lesson and “addressed all of my problems and issues”, including his childhood trauma and the grief of losing his mother.  He described himself as being stable on medication.  He indicates that when released he has stable accommodation in Canberra with his partner’s mother and full-time work at the cafe where he had worked in 2010 and 2011.  He says that he takes full responsibility for his actions and attributes going “off the rails” as a result of losing his grandparents and then his mother.  He said that he believed that he is ready to be released back into the community, that he is confident that he will never reoffend again and that he has learnt his lesson.

Time in custody

1. The offender has been in custody since 9 March 2017, a period of 11 months and five days prior to today.  Taking this time into account gives an appropriate backdate date for a custodial sentence of 9 March 2017.

Pleas of guilty

1. The offender pleaded guilty to all of the charges, except those occurring on
   5 and 6 March 2017, at an early stage.  While, having regard to the admissions made and the DNA and finger print evidence, the Crown cases were relatively strong, I will reduce the sentences that I would otherwise have imposed for the offences other than those on 5 and 6 March 2017 by 25 per cent.  That is because the pleas have significant utilitarian value and are consistent with an acceptance of responsibility, which is in turn a positive indicator for the potential for rehabilitation. So far as the charges relating to
   5 and 6 March 2017 are concerned, these pleas were not entered at an early stage, but did result from some negotiation with the Crown over the charges to be pleaded to and the facts to be admitted.  In relation to these charges, I will reduce the sentence by
   15 per cent.

Consideration

1. The offences which the offender has committed are clearly serious ones.  There are lots of them.  The burglary and theft offences involved scouring residential houses for saleable items.  Large numbers of items of significant value were stolen.  Very few of the items were recovered by police and no attempt has been made by the offender to compensate the victims for their losses.  The burglaries have had, and will have, a significant impact upon the victims.  In addition to the immediate losses, the burglaries are likely to have long-term impacts upon those affected, reducing their sense of security in their own homes. 

1. The offender has a criminal history, although not one which would deny him any leniency in relation to the current offences.  The current offences occurred over a relatively confined period and appear to have been associated with a need to finance a methamphetamine habit.  They therefore do not represent an ongoing pattern of behaviour on the part of the offender, but rather a temporary departure from a life that was lead in a reasonably law-abiding manner.

1. I have taken into account the personal circumstances of the offender, including his unsatisfactory upbringing and history of drug use, as well as his current mental health conditions.

1. The principal sentencing considerations are general and specific deterrence.  There is some prospect that the offender’s methamphetamine use will be disrupted by the time he must spend in custody and that he will not return to that use upon release.  Clearly the robustness of his rehabilitation is significant and it is for that reason that he has proposed undertaking rehabilitation at Arcadia House. 

1. Having regard to the gravity of the offences and the offender’s criminal history, no sentence other than sentences of imprisonment are appropriate.  Having regard to the number of offences, as well as their gravity and the offender’s criminal history, the custodial sentence must be served by full-time detention.

1. I do not consider that a deferred sentence order combined with an obligation to undertake a rehabilitation program will be an appropriate sentence.  That is because the gravity of the offences is such that, even with a longer rehabilitation program than that which has been proposed, it would be necessary for the offender to serve an additional period in custody and hence the usual incentives associated with a deferred sentence would not present.

1. So far as the individual occasions of offending are concerned, there must be a substantial degree of concurrency in relation to the offences.  However, as between different occasions they must be largely cumulative, although, recognising that the concentrated crime spree occurred over a defined and limited period and the totality of the overall sentence, a degree of concurrency has been introduced as between the offences occurring on different dates.

1. A non-parole period of just over 50 per cent of the head sentence will be imposed.  The reason for the shorter than usual non-parole period is that the offender’s criminal behaviour has been largely driven by a drug addiction.  There appears to be reasonable motivation and, hence, reasonable prospects for rehabilitation that would permit him to not fall back into drug use when returning to the community.  As a consequence, it is appropriate that he benefit from a shorter than usual non-parole period and that a significant portion of his sentence be served on parole where his drug use and hence, criminogenic risks, can be assessed.

1. Having regard to the sentence that I will impose, I do not consider that it is appropriate to make a reparation order in relation to the offence occurring on 9 February 2017. The usual manner in which such an order is rendered enforceable is by making it a condition of a good behaviour order. No such order will be made in the present case. It might be possible for the beneficiary of the order to enter into a reparation order agreement under s 116ZQ of the Crimes (Sentence Administration) Act 2005 (ACT), which would allow the order to be enforced as a fine. Notwithstanding the mechanisms available in relation to enforcement of fines under that Act, it is unlikely that, having regard to the sentences of imprisonment that I have imposed, the beneficiary of the order would ultimately receive anything. There is no evidence that the offender presently has the means to pay the amount sought. Rather, the evidence in the Pre-Sentence Report is to the contrary. Therefore, as a matter of discretion, I decline to make a reparation order.

Orders

1. The orders that I make are:

(1)For CC2017/8620, charge of joint commission burglary, I impose a sentence of six months commencing from 9 March 2017 and expiring on
8 September 2017.

(2)For CC2017/8619, charge of joint commission theft, I impose a sentence of six months commencing from 9 March 2017 and expiring on 8 September 2017.

(3)For CC2017/6378, charge of burglary, I impose a sentence of 11 months and seven days commencing from 9 June 2017 and expiring on 15 May 2018.

(4)For CC2017/6791, charge of theft, I impose a sentence of nine months commencing from 9 June 2017 and expiring on 8 March2018.

(5)For CC2017/6792, charge of theft, I impose a sentence of nine months commencing from 24 July 2017 and expiring on 23 April 2018.

(6)For CC2017/6793, charge of theft, I impose a sentence of nine months commencing from 9 September 2017 and expiring on 8 June 2018.

(7)For CC2017/11142, charge of burglary, I impose a sentence of one year, one month and 15 days commencing from 9 March 2018 and expiring on
23 April 2019.

(8)For CC2017/11301, charge of theft, I impose a sentence of one year, one month and 15 days commencing from 9 March 2018 and expiring on
23 April 2019.

(9)For CC2017/12129, charge of property damage, I impose a sentence of three months commencing from 9 March 2018 and expiring on 8 June 2018.

(10)For CC2017/4495, charge of burglary, I impose a sentence of one year, one month and 14 days commencing from 23 January 2019 and expiring on
7 March 2020.

(11)For CC2017/5799, charge of theft, I impose a sentence of 11 months and seven days commencing from 23 January 2019 and expiring on
29 December 2019.

(12)For CC2017/4441, charge of burglary, I impose a sentence of one year, one month and 15 days commencing from 8 December 2019 and expiring on
22 January 2021.

(13)For CC2017/4744, charge of theft, I impose a sentence of one year, one month and 15 days commencing from 8 December 2019 and expiring on
22 January 2021.

(14)For XO2017/31243, charge of robbery, I impose a sentence of one year, one month and 15 days commencing from 23 October 2020 and expiring on
7 December 2021.

(15)For CC2017/3543, charge of burglary, I impose a sentence of one year, three months and nine days commencing from 8 September 2021 and expiring on
16 December 2022.

(16)For CC2017/3544, charge of theft, I impose a sentence of one year, three months and nine days commencing from 8 September 2021 and expiring on
16 December 2022.

(17)The overall sentence I impose consists of a non-parole period of three years commencing from 9 March 2017 and a term of sentence of five years, nine months and eight days.  The offender will become eligible to be released on parole on 8 March 2020.

I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.

Associate:

Date: 29 March 2018