R v Po'oi
[2021] ACTSC 151
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Po’oi |
Citation: | [2021] ACTSC 151 |
Hearing Date: | 5 February 2021 |
DecisionDate: | 8 February 2021 |
Before: | Refshauge AJ |
Decision: |
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Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – residential premises or building site – burglary – dishonestly taking a motor vehicle without the owner’s consent - dishonestly driving a motor vehicle without the owner’s consent – possessing a knife without reasonable excuse – Pre-sentence custody – Conditional liberty – Plea of guilty – list of Additional Offences – Pre-Sentence Custody - Drug and Alcohol Treatment Order - Rehabilitation. |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 85 Crimes (Sentencing) Act 2005 (ACT) ss 46J, 12A, 63(2), 63(4), 63(5), 7, 33(1)(za), 80W, 80Y, Pt 4.4, Table 46J Supreme Court Act 1933 (ACT) Pt 8 |
Cases Cited: | Auld v The Queen [2013] ACTCA 21 Boney v The Queen [2015] NSWCCA 291 The Queen v Blundell [2015] ACTSC 383 |
Parties: | The Queen (Crown) Daniel Ronald Po’oi (Offender) |
Representation: | Counsel C Muthurajah (Crown) T Kelliher (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 276 of 2020 SCC 277 of 2020 |
REFSHAUGE AJ:
Introduction
The use of alcohol and other drugs has the capacity to encourage or precipitate the commission of crimes, some very serious, that disturb the community, including disturbing the feeling of peace and safety that should characterise a civilised society.
Sentencing is the community's response to crime, of course, only after an alleged perpetrator of crime has been found guilty. That may occur after an inquiry into the events so that a court can determine, on the basis of admissible evidence, that a crime has been committed and whether the alleged perpetrator is the offender, or by the offender admitting to having committed the offence by the public expression of this admission by making a plea of guilty.
I must now sentence Daniel Ronald Po'oi, who has pleaded guilty to five offences. In order to fix a just and appropriate sentence, I must identify the facts, assess the seriousness of the offences, have regard to Mr Po'oi's personal circumstances and apply the various principles of law and legislative requirements that are required of sentencing courts.
The following material was tendered and subject to some comments, detailed below, when either challenged on tender, or as to their contents. The documents were, in the first place, the Crown Tender Bundle, which included:
(a) the Statement of Facts;
(b) Mr Po'oi's Criminal History;
(c) a Drug and Alcohol Sentencing List Assessment Report of Canberra Health Services dated 20 January 2021 and a Drug and Alcohol Treatment Assessment of ACT Corrective Services dated 22 January 2021, these latter two documents being the Drug and Alcohol Treatment Assessments (the Suitability Assessments) referred to in s 46J of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act);
(d) a Compensation Schedule which, however, was withdrawn by the Crown, which it did not rely on and of which I take no notice,
(e) a notice of the cancellation of Mr Po'oi's parole on 21 April 2020; and
(f) the consequent warrant of imprisonment following the order of the Sentence Administration Board of that day.
In addition, I have the Eligibility Assessment Report (as to which see R v McHughes [2021] ACTSC 92 at [7] for the explanation of this report) and the Forensic Health Drug and Alcohol Sentencing List (DASL) Initial Assessment Form, both of Canberra Health Services and dated 4 December 2020, and a letter from Ebony Batten, Team Leader of the Solaris Therapeutic Community, dated 3 December 2020.
Mr T Kelliher, counsel for Mr Po'oi, drew my attention to the following matters in the Suitably Assessment of Canberra Health Services. It is suggested in it that Mr Po'oi, ‘would like to attend the residential rehab at Newcastle’, but Mr Kelliher explained that he was completely prepared to enter a residential drug rehabilitation facility in Canberra, as indeed he had made enquiries with, and had been accepted to attend, the Canberra Recovery Services facility in Fyshwick.
It was then noted in the same report that, ‘Mr Po'oi advised that he last used [methamphetamine drugs] approximately two months ago’. A result of miscommunication meant that this statement appears to represent that Mr Po'oi actually said, at a time when he was feeling mentally challenged, that he had used methamphetamines two months after he entered the Alexander Maconochie Centre. He had, Mr Kelliher advised, ceased using any methamphetamines since then. The same error of communication was made later in the report.
Finally, a typographical error stated that Mr Po'oi had been admitted to the Canberra Recovery Services and would commence the Residential Rehabilitation Program from ‘8 February 2020’, when it clearly was intended to be 8 February 2021. These amendments were accepted by the Crown. I will read the document accordingly.
From these documents I make the following findings.
The Facts
On 20 November 2019, Mr Po'oi was driving along Cantor Crescent, Higgins, when police intercepted him. He submitted to an alcohol screening test, which returned a negative result to alcohol, and then to a drug screening test, which returned a positive result to drugs. He then provided a sample of his oral fluid, which was tested and showed the presence of a prescribed drug. These events constituted the offence of driving with a prescribed drug in his oral fluid.
On 3 December 2019, Mr Po'oi drove out of the carpark at the Calwell Shopping Centre and turned into Casey Crescent, Calwell. A marked police vehicle noticed the Mr Po'oi’s vehicle and followed it; it stopped shortly after, despite no signal to do so from the police. He then suddenly accelerated and turned into Roope Close.
Police followed Mr Po’oi’s vehicle and activated the siren and lights attached to their vehicle, but Mr Po'oi continued driving away, braking heavily, which caused the wheels to lock. He then turned left at the end of Roope Close, through two bollards along a footpath, across a green belt into Were Street and left the area. These facts were the basis of the charge of failing to stop when directed by police.
On 25 February 2020, at about 2:30 am, Mr Po'oi and a co-offender entered a building site where a residence was under construction in Holt, ACT. They forced the front door, splitting the doorframe and knocking the latch out from the frame. A part of the doorframe was inside. The residence was apparently at the lockup stage but still unoccupied. Construction fencing was erected around it. There was no evidence and no other charge to suggest that any items were stolen from the premises.
As they were coming out of the premises, Mr Po'oi and the co-offender were disturbed by three male neighbours who had heard a noise from the site, possibly generated by Mr Po'oi and the co-offender breaking the door.
The neighbours asked the offenders what they were doing, and the offenders swore at them, telling them that it was none of their business, and walked towards what appeared to be their car, which was unoccupied and parked across the driveway to the premises.
The neighbours told them to wait while they called the police, but Mr Po'oi ran away from the car and was chased by one of the neighbours, who caught him. Mr Po'oi had a screwdriver in his hand and the neighbour took it from him and held him down. A fourth male neighbour then arrived from another residence and assisted to detain Mr Po'oi by putting a piece of timber across his chest to hold him down until police arrived.
By the time the police arrived, Mr Po'oi had fallen asleep. A Police officer woke him and searched him, located some tools on him and found a black-handled folding knife with a silver serrated edge. Mr Po'oi provided no explanation for having the knife. He was later taken into custody but was considered too intoxicated by illicit drugs to be able to be interviewed.
While this was happening, the co-offender had run to the vehicle and the two other neighbours had tried to prevent him, resulting in a violent scuffle. The males attempted to take the keys from the ignition of the vehicle, but the co offender managed to start the motor vehicle and drove away.
One of the neighbours was still holding on through the open door of the vehicle as it was being driven away. It hit the kerb and threw the neighbour out on the road. The ACT Ambulance Service attended and the neighbour was taken to hospital with a suspected broken leg, though I had no evidence of what, if any, actual injuries he suffered. The co-offender has not been identified by police.
From these incidents, Police charged Mr Po'oi with aggravated burglary, the circumstance of aggravation being that he was in company with an unidentified person and being in possession of a knife without reasonable excuse.
After his arrest for the charge of possessing a knife without reasonable excuse, Mr Po'oi was granted bail on 25 February 2020, though he was arrested on 5 March 2020 for a breach of bail, but his bail was not revoked until 18 April 2020.
Then, on 2 April 2020, he entered the garage attached to a residence in Weston, ACT. The garage had two roller doors, only one of which was open at the time, and a Mazda motor vehicle, visible from the street, was parked there. He got into the Mazda motor vehicle but was unable to start it. So he used a remote control from the Mazda vehicle, found behind the sun visor, to open the other roller door, behind which an Audi motor vehicle was parked.
He got into this vehicle, the keys of which were in the central control. He started the Audi vehicle and backed it out of the garage and into the street, where he parked it alongside a Toyota Corolla motor vehicle.
The owner of the premises entered the garage a few minutes later, saw the Audi vehicle had gone and walked up the driveway, when he saw Mr Po'oi transferring property from the Toyota vehicle into the Audi vehicle. The owner yelled at Mr Po'oi, but Mr Po'oi got into the driver's seat of the Audi vehicle.
The owner approached him and yelled to, ‘Get the fuck out of my car’. Mr Po'oi did not reply but indicated that he was not going to do so. The owner grabbed Mr Po'oi's shirt, but he broke free, shut the driver's door, disengaged the handbrake and drove away at speed.
The owner tried to find the Audi vehicle and the next day received a notification that his vehicle was at a service station in Kambah, ACT. He notified police and attended the service station. The police went there later. The attendant at the service station recalled Mr Po'oi and showed the vehicle owner the CCTV footage, which clearly showed Mr Po'oi at the service station some time shortly before 10:00 am.
Police sent out a notification of the stolen vehicle and, on the following day, 4 April 2020, located it abandoned in Braddon, ACT, in an undamaged state.
These facts form the basis of the charges of burglary, dishonestly taking a motor vehicle without the owner's consent and dishonestly driving a motor vehicle without the owner's consent.
The Proceedings
The proceedings are a little difficult to trace from the material I had but, doing the best I can, the course of the proceedings are as follows.
As mentioned above (at [21]), on 25 February 2020, Mr Po'oi was arrested and appeared in the ACT Magistrates Court later that day. He was charged with the possession of a knife without reasonable excuse and entered a plea of not guilty. He was granted bail to appear on 5 May 2020 for mention. On 5 March 2020, however, he was arrested on a breach of bail, but bail was not revoked and his bail continued.
The remand was broken on 18 April 2020, however, when he was charged with the additional offences of burglary at Weston, dishonestly taking a motor vehicle without the owner’s consent and dishonestly driving a motor vehicle without the owner's consent. He was remanded in custody. As noted above (at [4]), his parole was cancelled on 21 April 2020 and he was placed in custody until 31 December 2020.
On 5 May 2020, he indicated a plea of guilty to the charge of dishonestly driving the motor vehicle without the owner's consent, and the proceedings were further adjourned to 18 May 2020 and he remained in custody.
On 18 May 2020, the prosecution delivered its Brief of Evidence. In addition, Mr Po'oi was charged with the offence of aggravated burglary and the proceedings were later adjourned to 29 June 2020 for a Pre-Hearing Mention.
The defence then sought a further adjournment to make representations, which were sent out that afternoon. A response was received, however, only on 21 July 2020, and, since Mr Po'oi was still in custody, it was necessary for further consultation with him. Mr Po'oi did indicate a plea of guilty to the charge of driving with a drug in his oral fluid on 22 July 2020. Further charges were laid and the prosecution withdrew some other charges. Some of those charges are not currently before me.
There were further adjournments for further representations and, on 19 August 2020, Mr Po'oi indicated or entered pleas of guilty to the burglary charge, the charge of dishonestly taking a motor vehicle without the owner’s consent and that of dishonestly driving a motor vehicle without the owner's consent. After CCTV was provided to the defence on 6 August 2020, he pleaded guilty to the charge of fail to stop when directed by police.
The outstanding matters were listed for hearing on 26 October 2020, but on 21 October 2020 Mr Po'oi instructed his lawyers to indicate a plea of guilty to them, which was formally entered on 26 October 2020. A replacement charge was then withdrawn.
On 1 December 2020, upon Mr Po’oi’s pleas of guilty, all matters were committed to this Court under s 90A of the Magistrates Court Act 1930 (ACT), or transferred, under s 90B of that Act, to be dealt with under Pt 8 of the Supreme Court Act 1933 (ACT). It was anticipated that the matter would be heard in the Drug and Alcohol Sentencing List, and accordingly, Eligibility Assessments for Suitability Assessments were ordered.
When the matter was first heard in this Court, the Eligibility Assessments proved favourable and Suitability Assessments were themselves ordered and the matter was listed for sentence, noting that, until at least 31 December 2020, Mr Po'oi would not be eligible for a Drug and Alcohol Treatment Order (a Treatment Order) under s 12A(1)(c) of the Sentencing Act as he would still be serving a sentence.
There was an issue about the period during which Mr Po'oi was in custody in relation to these offences. This is, in part, because of the terms of s 63(2) of the Sentencing Act which requires me, if I propose to backdate the sentence, to take into account the period of custody in relation to that offence.
The issue arises because Mr Po'oi was required to appear before the Sentence Administration Board for breach of a Parole Order. He was arrested on a warrant issued by the Board and appeared in Court on that warrant on 18 April 2020. He was remanded in custody. At the same time, however, further charges were laid and he was remanded in custody on those charges as well.
The bench sheets recording those further charges and the pending charges that had been laid all clearly show that, on those charges, he was remanded in custody in relation to them. That meets squarely the words of s 63(2) of the Sentencing Act.
Such an interpretation is partly reinforced by ss 63(4) and (5) of the Sentencing Act, which require such time in custody to be included, notwithstanding that remand in custody for earlier sentences are included for the purposes of this calculation. This is so even if the arrests and remands are made at different times, and all those periods are counted, even if the offender is not convicted or found guilty of any of those earlier offences, and even including the first in time for the remand for which the offender was finally remanded for a period of continuous custody. This does not, of course, fit this situation, for this warrant relates not to an offence, but an inquiry by the Sentence Administration Board.
Accordingly, my present view is that the period from Mr Po'oi's arrest on 18 April 2020, to the hearing of the Sentence Administration Board on 21 April 2021, counts towards the period to be calculated under s 63(2) of the Sentencing Act, not because of anything in relation to the Board, but because of the remand in relation to those additional offences.
The period after the Board hearing, which required Mr Po’oi to serve the balance of his sentence, is in a different category, as he was then being held as a sentenced prisoner, and while, at a literal level, the remands to which I have referred would arguably continue during that period of time, it seems to me that serving a sentence in custody following cancellation of parole is in a different category and does not count for calculation of pre-sentence custody for other offences, even if concurrently on remand for those other offences in that period. Thus, Mr Po'oi has been custody on these charges now for 46 days.
The Offences
Many authorities make the point that it is important to have regard to the maximum penalties made in the various statutes by the legislature. As explained in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 133 [31], the maximum penalty ‘serves as an indication of the relative seriousness of the offence’.
Thus, the offence of aggravated robbery proscribed by s 312(a) of the Criminal Code 2002 (ACT) is a very serious offence, though by no means the most serious offence, as it attracts a maximum penalty of 20 years imprisonment, or a fine of $320,000, or both.
It, of course, shares many similarities with the offence of burglary, and many of the factors that aggravate or mitigate a particular rendition of the offence are similar or identical for the two offences.
It is often said that the targeting of residential premises, as the object of burglaries or aggravated burglaries, is more serious than the targeting of commercial premises: Heard v The Queen [2015] ACTCA 6 at [33]. That is, of course, because of their situation and not merely because of their classification. It is not simply a matter of identifying a category of premises and applying the sentence. We are fortunate not to have such grim sentencing mandated.
While these premises were strictly residential premises, though in the making, the following reasons why residences are so serious as the objects of burglaries are not really applicable. Thus, a home is a place of security and safety. People are entitled to feel safe in their own homes, and burglaries, even when the occupants are not present, violate that feeling. See The Queen v Blundell [2015] ACTSC 383 at [76].
There is often a likelihood that the offender will enter the premises when one of the occupants is there and, being a residence, that may be a vulnerable person, old or young, disabled or ill, disoriented if aroused from sleep. The home is also a repository of one's personal possessions, items that often have a sentimental or personal value. They will include private papers and records. They will often include items of adornment or decoration which may also have monetary value.
A burglary puts these at risk of destruction, loss or damage. These can cause real financial disadvantage, inconvenience or irreplaceable dispossession, as well as unhappiness and anxiety. None of this is so with a residence under construction.
Again, the occurrence of burglary has other effects, as was explained by Street CJ in R v Hayes [1984] 1 NSWLR 740 at 742, it has insurance implications, especially if there has been damage or theft. Nevertheless, the occurrence of burglary does influence premiums and the insurability of premises and, of course, the effect on premiums is not just for the victim occupier but for the community. Further, if a claim must be lodged, it will take effort and inconvenience. The insurance implications have some similarity in effect for commercial premises, but are generally more acute with an occupied residence.
None of these factors are really present in the case of an unoccupied residence that is still under construction. Importantly, it is not that it is presently unoccupied, because many burglaries are committed on residences owned and occupied but where the occupants are not present at the time of the burglary. Many of the factors making these burglaries more serious are still present and justify the approach. Rather, an unoccupied or under construction residence is somewhat more like a work site, where the builder is the business owner, and therefore more like a commercial premise.
There may be consequences to a future owner, if the occupant for the premises is already known, if, for example, delays in construction are caused by the burglary. Rather, as an underground carpark in an apartment complex is regarded as not quite in the same category as a residence (R v Forrest (No 2) [2017] ACTSC 83 at [77]), I do not consider that an unoccupied residence in the course of construction, even if at the lockup stage, is deserving of the same seriousness assessment as an occupied residence in the case of burglaries.
Ms Muthurajah for the Crown submitted that the location in a residential neighbourhood is relevant, as is the fact that a number of neighbours, early in the morning, were prepared to investigate what was happening. While all the circumstances of an offence are relevant, I do not think that the facts do justify particularly greater severity of sentence as is appropriate for a burglary at an occupied residence.
While civic-minded citizens are to be congratulated for coming to the assistance of the builder or future owner and protecting the property, I am not sure that this is a matter that renders the burglary more serious. It is true that such persons may be more likely to have a greater opportunity to render such assistance in a residential neighbourhood. There are, of course, an increasing number of commercial premises being constructed within apartment residential complexes and the residents there may show equal levels of civic-mindedness.
Further, any confrontation between such people and the burglar is likely to be happenstance if they are merely passing, which can equally happen in a commercial situation, but any other confrontation is one that is anticipated by the neighbourhood. That does not demean it or reduce its seriousness, but it does not have the same unexpectedness for an occupant who is the subject of a home invasion.
Neither counsel drew my attention to any authorities on this issue and, in the short time I have had to research the issue, neither have I been able to find any such authorities. In the absence of any authority, I am not prepared to put these premises in the same category as an occupied residence, even if the occupiers are not actually present at the time, where the burglary is still of a more serious kind.
The courts have identified a number of other aggravating or mitigating features. See, for example, R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327 at 337 [48], which was described as containing a useful list of such factors in R v Fusimalohi [2015] ACTSC 220 at [10]. See also R v Ware [2016] ACTSC 264 at [56]-[58], Smith v O'Dell [2016] ACTSC 176 at [32]-[34] and R v Roux (No 2) [2015] ACTSC 361 at [22]-[26].
In this case, some damage was done, which is an aggravating factor. I have no evidence as to Mr Po'oi's motivation, apart from the fact that he was well under the influence of illicit drugs. There is no evidence of any particular planning or premeditation, though Mr Po'oi did have various screwdrivers and tools.
As noted above at [19], the co-offender had a violent interaction with a member of the public, who suffered injury. It was submitted by the Crown that this made the offence more serious. On the other hand, Mr Kelliher submitted that it was not something for which Mr Po'oi could be held responsible. He submitted that the co-offender and Mr Po'oi parted company after they left the premises upon being confronted by the neighbours. He submitted that, were force to have been part of the contemplated offence, then it would have been a robbery and not a burglary. Since there was no theft it would be, at best, an attempted robbery.
Nevertheless, it does seem to me that Mr Kellier’s point is a valid one, and the fact that the co-offender tried to get away in a different direction does seem to me to confirm that what the co-offender did was not part of Mr Po'oi's intentions. It is not known, for example, whether he would have, if he had been in the car, called on the co-offender to let the neighbour leave the car safely. That he was accompanied by a co-offender is an element of the aggravated offence and does not aggravate it further.
Burglary is an offence contrary to s 311 of the Criminal Code which provides a maximum penalty of 14 years imprisonment, or a fine of $224,000, or both. It is thus a serious offence, but not as serious, as would be expected from its very nature, as the offence of aggravated burglary.
Many of the relevant factors are common to both offences and I do not need to repeat what I have already said. This was, however, at a residence where an occupant was present. Mr Po'oi seemed to have some purpose for using the motor vehicle he took to carry away some items that were in another vehicle. The explanation for this is entirely unclear, and I was hardly given any relevant evidence nor any explanation.
Whatever the reason, it is accepted by both counsel that it is consistent with the evidence and common sense that this was an opportunistic crime without any premeditation or planning. Mr Po'oi simply saw the open garage, tried to take the car he saw there, and when he could not, but found a remote control for the garage door and the keys, perhaps a little unfortunately left in the other vehicle, took that other vehicle instead.
The facts suggest that the offence was committed at 2:45 pm, in the mid-afternoon, at which time it is likely that an occupant could have been present as, in fact, was the case. There was, in fact, a confrontation which became violent. This is a matter of some aggravation.
The offence of dishonestly taking a motor vehicle without the owner's consent is an offence under s 318(1) of the Criminal Code and the offence of dishonestly driving a motor vehicle without the owner's consent is an offence under s 318(2) of the Criminal Code, but the maximum penalty for both offences is the same, namely, five years imprisonment, or a fine of $80,000, or both.
The offences have great similarities, though to take a motor vehicle, involving the actual and initial depravation from the owner of a valuable and perhaps, after the home, the most valuable possession, is perhaps somewhat more serious than merely driving it, though not significantly so. See R v Massey (No 1) [2020] ACTSC 256 at [56], R v Crawford (No 1) [2020] ACTSC 245 at [39], R v KN [2019] ACTSC 305 at [4].
The value of the vehicle is relevant, but I have no evidence of this. The period of time and length of driving is important. Here, Mr Po'oi had the car for about two days. During that time he was seen the next morning to drive it to Kambah. I can accept that he drove it to Braddon, where it was abandoned. There is no direct evidence of other driving, but it seems to me that I can find that he did likely do some driving, but I cannot find beyond reasonable doubt the extent to which he did further drive it.
It would not have been difficult for the odometer reading of the vehicle to have been taken but, of course, the owner may not have known what it was at the time when the car was taken. The car was recovered undamaged. This is a relevant factor.
The offence of possessing a knife without a reasonable excuse is contrary to s 382 of the Criminal Code 1900 (ACT), and the legislature prescribes a maximum penalty of six months imprisonment, or a fine of $1,600, or both. A knife, of course, has the potential for very serious consequences, including, indeed, death. Hence, the Courts view their possession and use very seriously. See Law v Ilievski [2016] ACTSC 291 at [125].
In this case, the knife was in a waste bag and not removed, even when Mr Po'oi was being chased. Thus, it is not a particularly serious example of this offence.
Driving with a prescribed drug in oral fluid is prohibited by s 20 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) and attracts a maximum penalty of three months imprisonment, or a fine of $4,000, or both. It also attracts a disqualification from the holding or obtaining of a driver licence for three years unless the court reduces it to not less than six months: s 34 of that Act. This was an unremarkable example of this offence which is, however, a reasonably serious one in view of the risk to other road users posed by affected drivers and the possible serious consequences.
Finally, failing to stop when directed by police is a crime under s 5C of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) and renders Mr Po'oi liable to 12 months imprisonment, or a fine of $1,600, or both. It also attracts an automatic licence disqualification of three months.
The evidence does not show any improper or erratic driving that justified the initial attention of police. Mr Po'oi's departure after police came upon him while he was stopped was quite dangerous, however, as he drove initially through a pedestrian area where pedestrians may have been walking but would not have expected a car to be travelling, especially one travelling at high speed.
Subjective Circumstances
Mr Po'oi was born in Canberra 35 years ago, the son of a Tongan father and an Australian mother. He was the middle child of three boys born to his parents. He had a stable and supportive childhood and he spent a lot of time with his maternal grandmother whom he remembers fondly.
He completed Year 10 education and, through a program for children with behavioural issues, he obtained a Certificate III and IV as a personal trainer and has completed six months of a concreting apprenticeship. He is keen to undertake further study.
He was a significant soccer player in his youth and was awarded a scholarship to participate in training. As a 15-year-old he represented the ACT in the sport. He has, however, had limited employment, with short, sporadic periods of labouring. This was heavily affected by his drug use.
He first started consuming alcohol when he was 12 years old, but his consumption was neither regular nor problematic. Prior to his recent incarceration, he was drinking once a week, about two or three standard drinks on each occasion. He is a regular tobacco smoker with a moderate level of dependence.
He first used cannabis when he was 12 years old as well, regularly using one to two grams daily for the next two years. He started using heroin at age 13, and by 14 he found it replaced cannabis. He would use heroin after soccer training when staying with friends. He progressed to regular daily use from when he was 15 to 16 years old. Initially smoking, he progressed to injecting from one to one and a half, to two to three and a half grams daily. During his offending, he was using two and a half grams each day.
Mr Po'oi first used methamphetamines at the age of 19, becoming a regular user at age 26. He used methamphetamines, together with his daily consumption of heroin, both alone and with friends. While he was offending, he was using about a half to one gram daily. He has not used methamphetamines since about two months after his latest period of incarceration. He began using amphetamines at age 19 and used regularly until about age 26. He has tried MDMA, ecstasy once and GHB once or twice.
He has had a number of attempts at rehabilitation. He has consumed methadone on and off for the past 10 years and was consuming the drug prior to his period of incarceration. He kept running into associates at the clinic and felt he should stop, therefore, attending the clinic and, so, consuming methadone, which he did. He was prescribed Buvidal but used his last dose in October 2020. He is now free of pharmacotherapy and wishes to abstain from it from now on.
Mr Po'oi has had some withdrawal and drug rehabilitation. It first occurred after a period of custody when he was 18 years old. He underwent detoxification in Orange, New South Wales, after release and then entered the Lyndon House of the Lyndon Community at Canowindra, New South Wales. He only stayed for 50 days and then returned to Canberra for Court, but was not permitted to return to the Lyndon community.
In 2006, he spent seven days at The Glen Drug and Alcohol Rehabilitation Centre at Chittaway Point, New South Wales. He transitioned for a period to its halfway house. He has had some counselling with Karralika Therapeutic Community, Canberra, and, in custody, he saw a counsellor from Directions Health Services about once a fortnight for eight sessions.
In July 2020, he entered the Solaris Therapeutic Community Program at the Alexander Maconochie Centre. He graduated on 13 November 2020 and has continued working to ensure that he has the correct supports in place on his release into the community. He is described as having ‘worked exceptionally hard to challenge himself for positive change and growth and to implement new strategies’. He has remained with the Solaris Therapeutic Community after graduation to take advantage of the supportive, stable environment.
Mr Po'oi has a troubling criminal history. [Redacted for legal reasons].
Since he became an adult, he has been found guilty of 31 offences, ranging from traffic offences to aggravated robbery. He has previously committed some of the kind of offences for which he has now pleaded guilty, including two offences of aggravated burglary and aiding and abetting a burglary. He has also committed serious offences, such as aggravated robbery, intentionally inflicting grievous bodily harm and breaching a protection order or equivalent.
He has been in jail for almost all but 18 to 20 months of the last 10 years, which also puts a perspective on the speed with which he must have reoffended, following his release.
He is in good physical and mental health, though he was greatly affected by the death of his maternal grandmother. It occurred while he was in custody, though he was released briefly to spend some time with her. The shock of her death has had a significant impact on him.
He has maintained a good relationship with his parents. They are willing to have him stay in their home following his sentencing and release into the community, though they would prefer that he undertake residential drug rehabilitation first. ACT Corrective Services and ACT Police have no concerns about the residence of his parents. Indeed, it seems to offer a positive environment. He remains on good terms with his brothers, though he is closer to his younger brother.
Mr Po'oi has agreed with the facts alleged by the Crown for these charges. He has, without prompting, displayed insight into the effect of his actions on the victims and the wider community. He has sought to engage in a restorative justice process, and I have already made a referral. He says that while he was offending he was heavily intoxicated with drugs.
Conditional Liberty
Mr Po'oi was committing these offences when he was already subject to a criminal sanction, but he had been released into the community at the time. Thus, when he committed the offences in 2019 and February 2020, he was on parole from a sentence for aggravated robbery, aggravated burglary and intentionally inflicting grievous bodily harm.
Further, on 25 February of 2020, he had appeared in court for some of the current offences and had been granted bail. That bail was revoked on 18 April 2020, as noted above (at [21]). Thus, he was also on bail when he committed the offences in April 2020, as well as being on parole.
It has been held that the fact that an offence is committed while an offender is on conditional liberty is not an aggravating factor that is relevant to the seriousness of the offence: Boney v The Queen [2015] NSWCCA 291 at [18]-[20]. There is no doubt, however, that committing offences while at conditional liberty is an aggravating factor. It has been held so in many cases. See, for example, Auld v The Queen [2013] ACTCA 21 at [9]. It constitutes an abuse of the privilege of being at large in the community when there would, absent good behaviour, be a case for custodial confinement. Nevertheless, it is important not to punish an offender twice for an offence. See R v Carmody [2016] ACTSC 382 at [152]; Kelly v Ashby [2015] ACTSC 346 at [61].
This is relevant in every case, but it is necessary in this case to be particularly mindful that Mr Po'oi, as a result of these offences, had his parole cancelled and spent a significant period in prison, albeit being the balance of a sentence already imposed.
It is further a matter of seriousness for the offending Mr Po'oi has committed that the parole was for a sentence which included what was similar offending, namely, aggravated burglary. Nevertheless, this factor must be considered, and due weight given to it, in the construction of a just and adequate sentence.
Plea of Guilty
Mr Po'oi pleaded guilty before the proceedings came to trial in this Court. All pleas were entered in the Magistrates Court. Further, the number of offences for which sentence has to be imposed is less than those originally preferred. Thus, careful consideration shows that there were appropriate reasons for the timing of the plea.
The prosecution Brief of Evidence for the offences was not received until 18 May 2020. It was submitted that, until defence counsel had received the Brief, they could not properly advise Mr Po'oi. That is true. On the other hand, many defendants plead guilty before they receive that Brief. Indeed, an ability to relieve the prosecution and the witnesses from the task of completing statements and completing the Brief is one of the important utilitarian values of an early plea of guilty, which the discount is intended to encourage.
As the Court of Appeal said in Cranfield v The Queen [2018] ACTCA 3 at [37], the discount available for an early plea is a matter of discretion, but the primary consideration of the degree of discount is the utilitarian value, which is largely determined by the plea’s timing. Nevertheless, the Court must be careful not to prejudice offenders who may have a genuine uncertainty about whether their actions are indeed criminal and may require advice, and their advisors may require the full brief before being able to provide such advice.
In this case, I accept that efforts were made to minimise undermining the utilitarian value of the Plea by delay. It must be acknowledged too that the delay was, in part, caused by the prosecution preferring charges on a number of occasions, not just because offences were subsequently committed. The defence did later take steps to advise of a plea before any hearing actually had begun and, for example, witnesses were required to attend Court. Finally, the case was reshaped, as a result of considerations and negotiations, to be somewhat different than that which was originally charged. I consider that a significant discount for the plea of guilty is warranted.
List of Additional Offences
Two of the originally charged offences are set out in a list of additional offences prepared under Pt 4.4 of the Sentencing Act. That provides a convenient method by which an offender can have offences taken into account in the sentencing of other offences. They are not to be the subject of sentences themselves and, though convictions are not recorded, no further proceeding can be taken in respect of the offences.
The Court of Appeal set out in R v Campbell [2010] ACTCA 20 at [47]-[50] how the sentencing court approaches the task of considering such additional offences. In summary, the following principles apply.
·The Court gives greater weight to personal deterrence and the community's need for retribution by the infliction of punishment when sentencing for the offences other than the additional offences.
·This task does not interfere with the requirement for the Court to comply with other sentencing principles, such as totality.
·It is not necessary for the Court, when sentencing, to indicate precisely how it has taken the additional offences into account.
·The taking into account of the additional offences will usually increase the severity of the sentence imposed, but may also alter the nature of it.
·The additional offences will also be taken into account in assessing the character of the offender and the prospects of rehabilitation.
Sentencing Practice
The Court is required under s 33(1)(za) of the Sentencing Act to consider current sentencing practice. While not an easy task, I have set out the process in R v Mathews [2020] ACTSC 364 at [44]-[49], and I will proceed accordingly.
In the case of offences such as burglary or aggravated burglary, there is a range of appropriate sentences. I have considered current sentencing practice as recorded in the ACT sentencing database in cases such as R v Bessant [2020] ACTSC 365 at [37]-[41] and R v Crawford (No 1) at [67]-[73]. I rely on what I there said.
Similarly, I considered the offence of dishonestly driving a motor vehicle without the owner's consent in R v Massey (No 1) and, similarly, I rely on what I there said.
The Crown has referred me to four decisions which might be of assistance. They are: R v McCurley [2020] ACTSC 140; R v Carberry [2020] ACTSC 96; R v Benner; R v Simonds [2020] ACTSC 221; and R v Crawford (No 1).
Mr McCurley committed five counts of aggravated burglary, two counts of attempted aggravated burglary, one count of burglary, three counts of theft, two counts of dishonestly riding in a motor vehicle without the owner's consent, one count of driving a motor vehicle without the owner's consent, one count of dishonestly taking a motor vehicle without the owner's consent and other offences over two days in March 2019.
He entered pleas of guilty in the Magistrates Court. Two of the burglary offences were committed in aged care facilities. The remainder were in commercial premises. Mr McCurley was on parole at the time of the offending. He was 31 years old with some trauma in his childhood and a history of drug use since age 10. He had a significant history of mental health issues. He had an ‘extremely extensive’ criminal history, including a history of similar offences. He had made some successful attempts at drug rehabilitation while on remand.
He was sentenced to between two years and nine months and two years imprisonment for the offences of aggravated burglary, 16 months imprisonment for the burglary offence, and between four and six months imprisonment for offences of dishonestly dealing with motor vehicles without the owner's consent. The total period of imprisonment was six years imprisonment, though it obviously included other sentences. While obviously a more serious sentencing exercise, the individual sentences provide a useful yardstick.
Ms Carberry committed a burglary of a residence while the occupants were at home and, as well as other offences, possessed a knife without reasonable excuse. Ms Carberry was a 41-year-old Aboriginal woman with a disadvantaged childhood and an early introduction to drug and alcohol use. She suffered from depression and had a substantial criminal history. She pleaded guilty in the Magistrates Court. She was sentenced to 18 months imprisonment for the burglary and a Good Behaviour Order for the knife possession offence. There is some comparability in these sentences.
Messrs Bennett and Simonds were charged with two counts of aggravated burglary and some theft and damage property offences. In addition, Mr Bennett was charged with a burglary offence, an offence of dishonestly taking a motor vehicle without the owner's consent and another dishonesty offence, while Mr Simonds was charged also with an offence of dishonestly driving a motor vehicle without consent and other dishonesty offences. The aggravated burglaries were committed on an apartment complex, and the burglary by Mr Bennett on a government depot.
Mr Bennett was subject to a suspended sentence of six months at the time of his offending. He was 38 years old, with a lengthy criminal history. He had a happy childhood but had behavioural problems at school. He experienced tragedy when his partner died in his arms of a heroin overdose and his son died later in a drowning incident. He commenced drug use at an early age, but at the time of the offence had been performing well at drug rehabilitation.
Mr Simonds was 38 years old, with an Indigenous background. He also had a lengthy criminal history, poor employment history and a history of illicit drug use which started at age 12. He had undertaken some rehabilitation. He had a history of bipolar disorder and expressed remorse for his offending.
Mr Bennett was sentenced to five years imprisonment, which included two years imprisonment for the burglary offence, and 35 months and 19 months for each of the aggravated burglary offences. Mr Simonds was sentenced to three years and six months imprisonment, with only 23 months and nine days imprisonment for the first aggravated burglary and 19 months imprisonment for the second. He was sentenced to six months imprisonment for dishonestly taking a motor vehicle without consent. These are useful comparable sentences.
Mr Crawford faced court for aggravated robbery, three counts of aggravated burglary, two counts of burglary and five associated counts of theft, one count of dishonestly driving a motor vehicle without consent and some other offences. All but one burglary was committed on commercial premises.
Mr Crawford was a single Aboriginal man of 37 years of age. He had a difficult childhood, which the principles outlined in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 attracted, and he had mental health issues. He had suffered from foetal alcohol syndrome. He had difficulties at school and had little employment. He commenced using drugs at an early age.
Mr Crawford showed remorse. He was sentenced to a total term of imprisonment of four years, including three years and four months for each of the aggravated burglary offences, 15 months for the burglary offences and nine months imprisonment for the dishonestly driving a motor vehicle without consent. This is a reasonably comparable case with some useful comparative sentences against which to measure these sentences.
Consideration
The purposes of sentencing are set out in s 7 of the Sentencing Act and a sentencing court must have regard to them, as I do. In this case, punishment is, for the reasons earlier mentioned, the nature of the offences and their effect on the community, a relevant consideration, as is general deterrence.
The fact of continuing criminality and the repetition of similar offences requires some consideration of specific deterrence. On the other hand, Mr Po'oi's desire for, and steps towards, rehabilitation are important. While I did not have Victim Impact Statements, I am appreciative of the effects of the crimes on the victims and I must have regard to that, as I do, for the safety of the community. For these crimes, denunciation is also relevant.
I have regard to the seriousness of the offences, as I have earlier described them, as well to Mr Po'oi's personal circumstances, which I have also described. I shall take into account the additional offences and the fact that Mr Po'oi was on conditional liberty at the time of the offending. I also give proper allowance for his pleas of guilty.
Mr Po'oi has expressed remorse and agreed to participate in restorative justice and drug rehabilitation, which is overt evidence of the remorse he has expressed. I give attention to this. I take into account all the matters which I have referred to earlier.
I note that Mr Po'oi is drug dependent. Such drug dependency does not mitigate his offending, but the fact that it commenced at a very early age is a matter that does moderate his culpability. I consider that no other sentence than a sentence of imprisonment is adequate for this offending.
There are, of course, five offences for which I must sentence Mr Po'oi. This is a matter of some complexity in a sentencing exercise. Thus, I have carefully considered the length of each sentence to ensure that Mr Po'oi is not punished twice, especially where there are common elements. To some extent, common elements are present here as the burglary was directed towards the dishonestly taking of the motor vehicle without the owner's consent.
I do not consider that the various sets of offences are so related as to form a course of conduct, but the offences in April 2020 were so related. Nevertheless, I have then reviewed the length of the total sentence arrived at to ensure that the principle of totality is respected and that the total sentence is adequate to reflect the criminality of the offences, but not more than that, and that the total sentence is not excessive but will leave open the realistic prospect of reform and hope for Mr Po'oi to achieve his goals when he is released into the community.
I note that Mr Po'oi has spent 46 days in pre-sentence custody, and I will deal with that in accordance with s 63 of the Sentencing Act.
Sentence
His Honour then spoke directly to the accused:
Mr Po'oi, please stand.
I convict you of aggravated burglary on 25 February 2020 and sentence you to two years imprisonment to commence on 25 December 2020, to take into account pre-sentence custody, and end on 24 December 2022. Had you not pleaded guilty, I would have sentenced you to two years and six months imprisonment.
I convict you of burglary on 2 April 2020 and sentence you to 14 months imprisonment to commence on 25 July 2022 and end on 24 September 2023. That is to be cumulative as to nine months on the sentence for aggravated burglary. Had you not pleaded guilty, I would have sentenced you to 18 months imprisonment.
I convict you of dishonestly taking a motor vehicle without the owner's consent on 2 April 2020 and sentence you to nine months imprisonment to commence on 25 March 2023 and end on 24 December 2023. That is to be cumulative as to three months on the sentence for burglary. Had you not pleaded guilty, I would have sentenced you to 12 months imprisonment.
I convict you of dishonestly driving a motor vehicle without the owner's consent on 2 and 3 April 2020 and sentence you to six months imprisonment to commence on 25 August 2023 and end on 24 February 2024. That is to be cumulative as to two months on the sentence for dishonestly taking a motor vehicle without the owner's consent. If you had not pleaded guilty, I would have sentenced you to eight months imprisonment.
I convict you of possessing a knife without reasonable excuse on 25 February 2020 and sentence you to one month imprisonment to commence on 25 February 2024 and end on 24 March 2024. That is to be wholly cumulative on the sentence for the dishonestly driving a motor vehicle without the owner's consent. Had you not pleaded guilty, I would have sentenced you to six months imprisonment.
Mr Po'oi, you may be seated.
I have now sentenced Mr Po'oi to two years imprisonment for the offence of aggravated burglary and a total sentence, for all offences, of 39 months imprisonment. As he is not subject to any other sentencing order within the meaning of s 12A of the Sentencing Act and as he will live in the ACT for the duration of the sentence were he released into the community, he is eligible for a Treatment Order under that section and I have been asked to consider making such an Order.
I have carefully read the comprehensive and helpful Suitability Assessments referred to above (at [4]). I have also carefully considered them and the recommendations that they make that Mr Po'oi is suitable for a Treatment Order. I am satisfied, on the balance of probabilities, that Mr Po'oi is dependent on illicit drugs and that his drug dependency substantially contributed to his offending behaviour.
I have not identified any indicators as to unsuitability for a Treatment Order, as mentioned in table 46J of the Sentencing Act. I also note that Mr Po'oi has indicated his consent to making such an order. Accordingly, I am satisfied that Mr Po'oi is suitable for a Treatment Order and that such an order should be made. In the circumstances, it should be made for 24 months.
I note that the total sentence I have made commences on 25 December 2020, and that the period from then until today has already been served. If I make a Treatment Order, the sentence must then be suspended from today for the remaining balance of the sentence for the offence of aggravated burglary: s 12A(2) of the Sentencing Act.
Despite that Mr Po’oi has served part of the imprisonment, then suspended on sentence, I am satisfied, for the reasons set out in R v Crawford (No 1) at [91]-[111], that this does not prevent the making of a Treatment Order in respect of Mr Po'oi.
Drug and Alcohol Treatment Order
His Honour then spoke directly to the accused again:
Mr Po'oi, please stand.
I make a Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) for two years from today, 8 February 2021, until 7 February 2023, for the offence of aggravated burglary committed on 25 February 2020 as the primary offence.
I extend the Drug and Alcohol Treatment Order for the offences of burglary, dishonestly taking a motor vehicle without the owner's consent, dishonestly driving a motor vehicle without the owner's consent and possessing a knife without reasonable excuse, which are associated offences.
I note that I have entered convictions for the primary offence and the associated offences and imposed sentences for them, which convictions and sentences are hereby incorporated into the Drug and Alcohol Treatment Order for the custodial part of the Order.
I suspend the total sentence of 39 months under s 80W of the Crimes (Sentencing) Act 2005 (ACT) until 24 March 2024.
I require you to sign an undertaking to comply with the offender's good behaviour order obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for the period from 8 February 2023 until 25 March 2024, with a probation condition that you accept supervision of the Commissioner of ACT Corrective Services or his delegate for the period of the Good Behaviour Order, or such lesser period as the person supervising you considers appropriate, and that you obey all reasonable directions of the person supervising you.
For the treatment and supervision part of the Drug and Alcohol Treatment Order, I require you to comply with the core conditions under s 80Y of the Crimes (Sentencing) Act 2005 (ACT) for the period of the order with the conditions set out in the following orders.
I direct that you admit yourself today, 8 February 2021, to the Canberra Recovery Services in Fyshwick by 1:00 pm and remain at that facility until you have completed the residential drug rehabilitation program and obey all rules of the facility and all directions of the person in charge of the facility.
If you leave or are discharged from the Canberra Recovery Services before completion of the program there without the approval of the Court, I direct you to report to ACT Corrective Services by 4:00 pm on the next business day with a view to having the Drug and Alcohol Treatment Order reviewed.
I direct that you comply with any directions of a member of the Treatment Order Team or any order of the Court about contact with them, case management, attendance at urinalysis, counselling or treatment, or participation in programs.
I direct that you comply with any directions of the Court from time to time about appearance in Court in person, or by electronic means.
I direct that you not drive, or be in the driver's seat of a motor vehicle, between today, 8 February 2021, and 7 May 2022 without the Court's approval.
I direct that you appear in Court on 19 February 2021 at 12:30 pm, if necessary by electronic means.
Mr Po'oi, that is a lot of legal stuff. You have been around the courts, so you probably know some of what I have said, but the bottom line is that the offences of which I have convicted you are worth 39 months imprisonment. You have already served a short part of that period of time, but I do not require you to serve any further period of time as I have made a Treatment Order.
That Order is one that is designed to help you in your desire to become abstinent and to be able to manage your dependency. That is going to be hard and there will be some bumps along the way, but this Court will support you, if you are committed to that and really intending to do so.
As you have agreed, the first step is to go to Canberra Recovery Services, and you will go there straightaway, and you will remain there until you complete that program. At the end of that program, because it will not last for the whole period of the Treatment Order, you will then be required to have ongoing case management and supervision within the Court for a period.
That is designed to support you, but also to punish you if you step out of line, and hopefully that punishment is designed not to send you back to prison. We try to avoid that if we can, although it is necessary sometimes to redirect your efforts so that you remain directed and committed to drug rehabilitation.
You will come and see me, at least in the initial stages, once a week. You will not see me until the 19 February 2021, two weeks, but thereafter once a week. If there are difficulties, raise them with me. If they cannot be resolved, well they cannot be resolved, but we can talk them through. If they can be resolved, I will do my best to resolve them, because difficulties are best got out of the way so that you can concentrate on your rehabilitation.
If things get difficult, however, the worst thing you can do is leave the program. No, that is not true. It is a bad thing to do, but the worst thing you can do is not come back to Court and own up to leaving the program, but just run away. You go back to ACT Corrective Services. They will bring you back here at an appropriate time and we will review the situation.
Sometimes I have no alternative but to cancel the Order and send you back to jail to serve the balance of the 39 months, and the time spent in the community under this Treatment Order does not automatically translate into time reducing that period. But if you do not come back then it is almost inevitable. There would then have to be really exceptional circumstances why I would not cancel the Order. So, we can try, and we may be able to prevent cancellation, and put you back on the straight and narrow.
Two things are really important: compliance with the program, and that means keeping appointments, talking to people, attending counselling, doing your best; but the other thing that is really important is honesty. Honesty is fundamental to the success of rehabilitation from drug dependency.
Keep those things in mind. I hope that this will be successful. It is a journey we will take together. I am looking forward to helping you, insofar as I can, and insofar as the Court can, and there will be many people who will be supporting you in the Treatment Order Team.
Good luck. I will see you on the 19 February 2021. You may be seated.
| I certify that the preceding one hundred and sixty [160] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge. Associate: A Spencer Date: 20 August 2021 |
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