R v Pocock
[2015] ACTSC 77
•20 February 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Pocock |
Citation: | [2015] ACTSC 77 |
Hearing Date: | 20 February 2015 |
DecisionDate: | 20 February 2015 |
Before: | Penfold J |
Decision: | See [13] to [18] below |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – offender to be sentenced for four burglaries and four associated thefts – offences committed to fund longstanding drug abuse – Naltrexone implant – attempt at residential rehabilitation – availability of family placement in residential rehabilitation – pre-sentence rehabilitation efforts justified deferring sentence in 2014 to enable offender to address the drug use contributing to criminal behaviour – successful completion of residential rehabilitation – no further offending – offender sentenced according to 2014 indication of sentence if offender complied with deferred sentence order. |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT), ss 27, 118 |
Parties: | The Queen (Crown) Troy Joseph Pocock (Offender) |
Representation: | Counsel Ms A Jamieson-Williams (Crown) Mr R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 153 of 2013; SCC 217 of 2013 |
In February last year, Troy Pocock appeared before me for sentence on eight charges, being four of burglary and four of associated thefts. The burglaries took place at the Tuggeranong Hyperdome in July 2013. Mr Pocock, who is an air-conditioning installer by trade, gained access through the roof space to a maintenance room, and on three occasions to electronic shops in the Tuggeranong Hyperdome, from which he removed items valued in total at nearly $16,000. Mr Pocock pleaded guilty to all the offences, although his pleas in relation to the burglary at one of the electronics shops was considerably delayed.
At the sentencing hearing there was evidence before me of Mr Pocock’s chaotic upbringing, his significant alcohol and drug abuse, and the fact that the burglaries had been committed to fund his drug use. I also noted that Mr Pocock had a partner and two small children, the younger of whom lived with Mr Pocock and his partner, that Mr Pocock had received a naltrexone implant in December 2012 which appeared to have enabled him to stop using heroin, and that Mr Pocock had recently made a short-lived attempt at residential rehabilitation at Karralika, discharging himself after a few weeks as a result of concerns about the welfare of his family.
At the time of that sentencing hearing, Mr Pocock had been offered a place in a Karralika program aimed at families, including families with children, and he expressed the belief that his chances of succeeding at rehabilitation would be greatly improved if rehabilitation did not involve a separation from his family.
In those circumstances, I decided that it was appropriate to make a deferred sentencing order under s 27 of the Crimes (Sentencing) Act 2005 (ACT) to give Mr Pocock the opportunity to address his criminal behaviour, and anything that had contributed to that behaviour, before final sentence was passed. I therefore deferred Mr Pocock’s final sentencing for 12 months, and granted him bail to enable him to re-enter the Karralika rehabilitation program. As required by the Crimes (Sentencing) Act, I gave Mr Pocock indications of the sentence he was likely to receive if he complied with his bail conditions and avoided re-offending, and the likely sentence if he did not manage that compliance. An extract from my sentencing remarks at that stage is attached.
Mr Pocock was also required to appear before me in May and October last year for check-ups to ensure that his rehabilitation was progressing satisfactorily. At both those points, it appeared that Mr Pocock was doing well at Karralika.
An updated Pre-Sentence Report has now been provided, as well as a letter from a Karralika manager, outlining Mr Pocock’s progress in the last 12 months. He and his family have remained at Karralika. Police have advised that there have been no further incidents or issues involving Mr Pocock during that 12-month period or indeed since the offences I am dealing with.
Mr Pocock’s partner gave birth to their third child, a daughter, in August 2014, and she remains with her parents and one of the older siblings at Karralika. Care and Protection Services staff have advised that they have no concerns about the two children who remain in the care of Mr Pocock and his partner. Mr Pocock is said to have a “pivotal role within the family structure” and to be actively involved in the care of his children. Mr Pocock and his partner have been allocated a Housing ACT property where they will live after leaving Karralika. Mr Pocock is expected to complete the program in March this year.
Between February and November 2014, Mr Pocock was subjected to eight urinalyses and returned negative results for all tests. The Pre-Sentence Report said that:
Information obtained from Karralika indicates Mr Pocock had adapted well to the program, is actively engaged and has recently been appointed to the position of House Supervisor. In this role, Mr Pocock is considered the most senior resident at Karralika with responsibility for the day to day management of the therapeutic community.
That report is confirmed by the letter from Karralika which also noted that:
[Mr Pocock] demonstrates a sound understanding of his underlying behavioural issues [and] is able to identify strategies and processes for managing these in a healthful and solution-focused manner.
10. Mr Pocock plans to engage with Narcotics Anonymous and a relapse prevention program upon his release from Karralika.
11. Mr Pocock wrote a letter to the court describing the value of the opportunity that he has been given to break the cycle of his drug addiction and criminal behaviour and to gain a greater understanding of the factors that have led him to that addiction and behaviour.
12. Mr Pocock has made remarkable progress in the past year, and accordingly it is appropriate that I sentence him as foreshadowed last year on the basis that he has succeeded in his rehabilitation.
13. Mr Pocock, please stand. I record convictions on four charges of burglary and four charges of theft.
14. I now sentence you as follows:
(a)for the two JB Hi-Fi burglaries, and for the burglary of the maintenance room, to 22 months imprisonment each, reduced from 30 months for your guilty pleas, and for the associated thefts, to nine months imprisonment each, reduced from 12 months; and
(b)for the Dick Smith burglary, to 24 months imprisonment, reduced from 30 months having regard to your later guilty plea, and for the associated theft, to 10 months imprisonment reduced from 12 months.
15. Each theft sentence will run concurrently with the relevant burglary sentence. The sentences for the second and third burglaries will be accumulated to add four months each to the total sentence, and the last burglary sentence will be accumulated to add six months to the total sentence.
16. That gives the total of three years imprisonment foreshadowed when I deferred your sentence in February last year. The sentence will be backdated to 18 August 2013 to take account of a total of 190 days of pre-sentence custody, and the total period that you have spent at Karralika since 24 February 2014, and so the sentence will run until 17 August 2016.
17. The effect of the backdating is that you have completed the first two theft sentences, and there is just under 18 months of the total sentence left to serve. That remaining period of the sentence will be suspended from today, and I now order you to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for two years.
18. The good behaviour order is subject to conditions:
(a)that for such period not exceeding two years as Corrective Services considers necessary, you accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director General or delegate;
(b)that you undertake such counselling, courses, programs or treatments as directed by your supervising officer;
(c)that you submit to urinalysis as directed by your supervising officer; and
(d)that on or before Tuesday next week, but ideally today, you attend Corrective Services at Eclipse House to arrange your supervision.
You will be given a written copy of the good behaviour order and it will be read to you by the court officials, and you should feel free to ask them or Mr Davies or Mr De Bruin if you have any questions about it but, in short, the good behaviour order means that for the next two years, you need to keep out of trouble, keep in contact with Corrective Services for as long as they require, and do what your Corrections supervisor tells you to do.
20. If you commit another offence during that two years, or if you breach that good behaviour undertaking in some other way, you may find yourself back before this court to be re-sentenced for these offences, and I should say to you, depending on exactly how you might have breached the undertaking, you could find yourself serving some or all of the remaining part of that sentence in full-time custody. I would have to say if you went back to drug use and more burglaries, you might well find that was the result and, as you would realise, there is nearly 18 months left of that sentence.
21. So the prospect of going back to full-time custody I hope will be a real disincentive to you to falling back into drug taking and crime but I hope I’m right in thinking that your family, and especially your responsibility for small children, should be an even better reason for you to maintain what has so far, Mr Pocock, been a very impressive rehabilitation. I congratulate you on that and I wish you luck in building on this success and I hope I don’t see you back here again.
22. ACCUSED: Thank you, your Honour.
23. HER HONOUR: You may sit down.
| I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Date: 13 April 2015 |
Extract from sentencing remarks 21 February 2014
All the burglaries took place at Tuggeranong Hyperdome in July 2013. It seems that Mr Pocock gained access to a maintenance and planning room in the shopping centre, from which he took various items including a portable radio, tools and building maps. From that room he gained access to the roof space, and in turn entered two electronics shops, JB Hi-Fi twice and Dick Smith once. On each occasion he stole items from the shop, including cameras, computers and computer accessories. The value of stolen items was:
- from the maintenance room – just over $4,700;
- from Dick Smith – just under $4,500; and
- from JB Hi-Fi in one of the burglaries – just over $6,700.
The other theft from JB Hi-Fi apparently involved mainly cheap computer accessories, and no value has been provided for that theft.
Mr Pocock was identified by CCTV footage, which recorded his entry into the Dick Smith store and also his departure from the Hyperdome in a vehicle later linked to him. Forensic evidence, including DNA, linked him with the other burglaries.
Mr Pocock was initially charged with the Dick Smith burglary only a couple of days after that burglary. He was subsequently charged with the earlier burglaries and thefts. His pleas of guilty to the three earlier burglaries and thefts came quite quickly, but the pleas of guilty to the Dick Smith burglary and theft were not entered until nearly five months after he was first charged (although still before he was committed to this court). There will be pleas of guilty discounts on all the sentences, but they will reflect the different timing of the pleas of guilty to the Dick Smith offences.
Since he was first charged, Mr Pocock has spent a bit over six months in custody, and his sentence will be backdated accordingly.
These burglaries and thefts were relatively routine, although involving a more sophisticated method of gaining entry to the relevant premises (presumably informed by Mr Pocock’s previous work as an air-conditioning installer) than the average domestic burglary. Defence counsel noted that the burglaries were committed in commercial premises when the risk of running across the occupants of the premises was low, and where there was also little risk of stealing items with sentimental value. He submitted that, even if these were not mitigating factors, they did reduce the severity of the offences to some degree.
Mr Pocock, who is now 30, has a relatively minor criminal history considering his “chaotic” upbringing, a matter to which I shall return. There are driving offences and several contraventions of protection orders from 2004 and 2005, a burglary and associated dishonesty offences from 2007, and several 2011 driving offences, as well as a couple of failures to appear.
Mr Pocock’s background is most usefully described in a CADAS report prepared in September 2013, as follows:
Mr Pocock lives with his de facto partner Alicia Garner and their one year old child in Greenway, ACT. He completed year 10 and is currently unemployed. They also have a three year old boy who currently lives with his aunt in Melbourne. His partner has another two children who live with their grandmother in Theodore, ACT.
Mr Pocock was brought up by his mother ... and step father .... He also has a step sister and step brother. Mr Pocock describes his upbringing as “chaotic” due to drug issues his mother previously experienced. He also reported a history of violence in his childhood. Mr Pocock stated that when he was 13 years old he discovered his step-father ... was not actually his birth father, and that this was very challenging for him at the time. He reported now being close to his step-father.
Mr Pocock reported a number of physical injuries he experienced as a child, teenager and young adult. These included three arm fractures as a child, three broken fingers, a fractured eye socket, dislocated jaw and shoulder, a fractured neck, broken ribs, and having a rock embedded in his eye socket and eye. He stated these injuries occurred due to various reasons including childhood activities, motorbike riding, and fights. He stated that alcohol was “usually” involved in fights.
Mr Pocock reported no mental health disorders beyond anxiety, for which he was prescribed Valium at age 26 by his GP. He is no longer being treated for this, ceasing Valium use when he was incarcerated.
... Mr Pocock stated his mother was diagnosed with a mental illness four to five years ago but he was unsure what it was. Mr Pocock reported a maternal uncle who had committed suicide before Mr Pocock was born, and he stated his grandmother has recently being experiencing symptoms of dementia.
The Pre-Sentence Report provided other relevant information:
Although he has experienced periods of unemployment and underemployment, Mr Pocock’s education and work history is considered a strength for him.
After obtaining his Secondary School Certificate, Mr Pocock has been employed predominantly in the building industry. In recent years he has operated his own airconditioning installation company although he was not working at the time of the current offences.
Mr Pocock has applied to undertake employment during the custodial period, however no work has been available to him. He is confirmed to be participating in Conservation and Land Management and Indigenous Art classes at the AMC.
Despite intermittent employment and self-employment, Mr Pocock has been reliant on Centrelink payments while in the community. His past and present property offending are indicative of his attempts to finance his illicit drug use.
10. Mr Pocock’s current problems are closely related to alcohol and drug abuse. The CADAS report mentions excessive use of alcohol, and regular and high‑level use of cannabis and methamphetamines by Mr Pocock until he was remanded in custody in June last year. Mr Pocock has also been a heroin user, but seems not to have used heroin since receiving a Naltrexone implant in December 2012.
11. The Pre-Sentence Report included information about Mr Pocock’s motivation for the current offences as follows:
[Mr Pocock] accepted responsibility for his offending behaviour, stating all of the offences were motivated by his need to support his drug use. He expressed a great deal of disappointment in himself for having returned to custody and stated he was “deeply sorry I did all of it”. Mr Pocock stated he wanted to apologise to the owners of the shops and everyone affected, because they have apparently “suffered this several times now”.
Mr Pocock also described the impact of his current offences in terms of his own freedom and his family. He stated, “None of this would matter so much if it was just me, but I have the responsibility of a family”.
12. Mr Pocock claims to have abstained from drug use during his recent periods in custody, but has not been drug tested. The Pre-Sentence Report outlined a recent rehabilitation attempt:
Mr Pocock was released on bail by the ACT Supreme Court to enter the Karralika drug and alcohol residential rehabilitation centre on 5 November 2013.
On 7 December 2013, Mr Pocock re-entered custody at the AMC, after discharging himself early from the Karralika program.
Mr Pocock reported he remained at Karralika for approximately two weeks before he left after hearing his three year old child had been involved in a motor vehicle collision. Karralika staff did not confirm the date Mr Pocock exited the program, however staff did confirm Mr Pocock was reassessed for the program on 25 November 2013 and was subsequently found suitable to enter the rehabilitation unit.
Mr Pocock stated he still has a strong motivation to undertake and complete a long term residential rehabilitation program. He intends to re-enter the program, in company with his partner, at the earliest opportunity. Mr Pocock stated he should not have left the program without discussing it first with Karralika staff, and he acknowledged he should have attended the Court as soon as he could. He reported his priorities were with his partner and child at the time he made his decision to exit Karralika but he would not make the same mistake again.
13. The CADAS report provides a different explanation for Mr Pocock’s departure from Karralika, but it also related to family needs rather than a relapse into drug use.
14. The CADAS report indicates that another rehabilitation opportunity is now available.
CADAS confirmed with Karralika Programs Inc on 30 January 2014 that Mr Pocock and his partner have been approved for their program and are on the waiting list to be offered a place. CADAS supports Mr Pocock’s attempt to complete the Karralika Child and Family Services Program. This program is likely to benefit both him and his family.
15. This was confirmed by a letter from Renee Cox at Karralika, reporting that a bed will be available from Monday, 24 February 2014.
16. Mr Pocock wrote a letter to the court explaining his struggles to pursue residential rehabilitation without his partner and family and his hope for a second chance at rehabilitation. A letter of support was provided by his partner’s mother, and also by David Naden of the Winnunga Nimmityjah Aboriginal Health Service.
17. I note the importance of general deterrence in relation to offences of this kind, as well as the need for personal deterrence of Mr Pocock, and that no sentence other than imprisonment would be appropriate for these offences.
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