R v Reid
[2021] ACTSC 72
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Reid |
Citation: | [2021] ACTSC 72 |
Hearing Date: | 1 February 2021, 27 April 2021 |
DecisionDate: | 28 April 2021 |
Before: | Elkaim J |
Decision: | See [37] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – receiving stolen property – theft – burglary – trespass – Intensive Corrections Order |
Legislation Cited: | Crimes (Sentencing) Act2005 (ACT) ss 6, 7, 10, 33, 36 |
Cases Cited: | The Queen v Ngata [2015] ACTSC 356 |
Parties: | The Queen (Crown) Jason Adam Reid (Offender) |
Representation: | Counsel T Hickey (Crown) T Taylor (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Offender) | |
File Number: | SCC 196 of 2020 |
ELKAIM J:
On 28 August 2020 the offender pleaded guilty to the following eight charges in the Magistrates Court:
(a)Receiving stolen property (CC5933/2020), contrary to section 313 of the Criminal Code 2002 (ACT). The maximum penalty is 10 years’ imprisonment, a fine of $160,000 or both.
(b)Attempt minor theft (CC8609/2020), contrary to section 44 of the Criminal Code. The maximum penalty is 6 months’ imprisonment, a fine of $8000 or both.
(c)Three counts of trespass (CC8610/2020, CC 6154/2020 and CC6206/2020), contrary to section 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth). The maximum penalty is a fine of $2,100.
(d)Two counts of theft (CC6153/2020 and CC6205/2020) contrary to section 308 of the Criminal Code. The maximum penalty is 10 years’ imprisonment, a fine of $160,000 or both.
(e)Burglary (CC8613/2020), contrary to section 311 of the Criminal Code. The maximum penalty is 14 years’ imprisonment, a fine of $224,000 or both.
The above charges were committed to the Supreme Court for sentence.
The offender is entitled to a discount for his plea of guilty. Consistent with the submissions of the parties, this discount should be 25%.
The matter initially came before me on 1 February 2021. The sentence hearing was adjourned so that an Intensive Corrections Order Assessment (ICO) could be obtained.
Consequently a report was produced and is dated 22 April 2021. The report says that the offender is suitable for an ICO. It suggests that supervision would be targeted to deal with drug and alcohol problems and mental health issues.
The offences are described in detail in the Statement of Facts. The following is a summary.
Count 1: In the early hours of 7 April 2020 there was a break-in at a construction site in Whitlam in the ACT. A trailer was amongst the material stolen. On 14 May 2020 the police stopped the offender while driving a utility which was pulling the stolen trailer. This is the receiving charge.
Counts 2 and 3: On 4 May 2020 the offender and another man tried to enter premises, again at a construction site. They failed and left.
Counts 4 and 5: On 8 May 2020 the offender again went to a building site. He took a bobcat from the site and drove it to a nearby paddock. He later, with the assistance of a friend, took the bobcat back to his own premises.
Following his arrest the offender apparently proposed telling the police where the bobcat was located. He did not know that his sister had already disclosed its location to the police. It was submitted that I should take the offender’s intention is an indication of a preparedness to assist the authorities and therefore be a factor in his sentencing.
Counts 6, 7 and 8: In the early hours of 12 May 2020 the offender went to commercial premises where he went through a vehicle shed. He tried to enter a Toyota land cruiser. He failed. He then tried a Ford utility. He was finally able to get into another Ford utility and he searched through the vehicle.
Later on the same day the offender returned to the same premises with a Mr Vecchi. They went through the premises, presumably looking for articles to steal. They took a bobcat which had cost about $45,000 when new. It had only been used for about two weeks. They also took a number of tools.
Mr Vecchi was sentenced for his role in the theft of the bobcat on 15 April 2021. Mr Vecchi did not have a criminal record. This offender does have a criminal record. He has committed a variety of crimes.
The offender was born in 1986. He is the eldest of four children. He had a supportive upbringing. His relationship with his family, quite appropriately, has been affected by his criminal behaviour. He has been in two lengthy relationships which have produced five children. He currently resides with his parents. He hopes to move to Queensland in the future.
The offender completed Year 12. He has had a number of jobs in retail, security and construction work. He has been self-employed for a number of years doing weed spraying and landscaping. His business suffered a downturn caused by the drought and bushfires and then the pandemic. These factors, he says, induced him to commit the offences.
The offender is currently operating a new business which carries on “fencing, weeding, concreting and landscaping”. He has five employees.
The offender is apparently a binge drinker. His intoxication has sometimes led to physical altercations. He says he doesn’t drink much anymore. The offender also has a history of taking drugs, often associated with the use of alcohol.
The offender has had many hobbies, usually of an outdoor variety including hunting and fishing.
There is a psychological assessment from Ms Morris, a forensic psychologist. She says that he is at a low to moderate risk of reoffending mostly because of his substance abuse and marital issues. She notes however “his willingness to engage with rehabilitative interventions and shame regarding his substance use are protective factors”.
Ms Morris thinks that there may be a degree of cognitive impairment arising from alcohol and drug abuse. She observes that while he is able to run a business he does not seem to be able to do so successfully. She believes he probably suffers from an Attention Deficit Disorder.
The offender submitted that the nature of the offences, in particular the paucity and incompetence of planning, suggested that they must have been influenced by the offender’s drug use. In effect the submission was “the planning was so bad that he must have been on drugs”. The Crown said that this submission was not open, although conceded that drugs may have formed a background to the offences. I agree with the Crown but note that the offender was using a lot of expensive drugs at the time which may well have influenced his decisions.
Ms Morris says that the offender would benefit from psychiatric review to confirm her diagnosis and that he would be assisted by psychological intervention “to assist him with managing emotional and sensory overwhelm and stress/anger management strategies”.
Ms Morris notes that the offender seems to have done well with rehabilitation programs while in custody. She thinks it would benefit him to continue to have appropriate counselling.
The offender has been custody for 80 days. He is entitled to a discount for his pleas of guilty and it is important to ensure a degree of concurrency in order to avoid an overly long head sentence.
I have referred above to the discount for the early pleas of guilty. The offender submitted that the discount should be increased by 5% (up to 30%) because of assistance offered by the offender to the authorities, which he said, fell within the scope of s 36 of the Crimes (Sentencing) Act2005 (ACT).
The submission arose from an email, which is included in Exhibit 1, in which the offender’s solicitor wrote to the Crown informing it that the offender was “willing to assist law enforcement authorities in recovering the outstanding bobcat”. When the offer was made, unbeknown to the offender, the bobcat had already been recovered. Nevertheless, consistent with the principles set out in The Queen v Ngata [2015] ACTSC 356, at [57], the offender was entitled to the discount.
The Crown disagreed, submitting that s 36 required an undertaking to assist which was to be distinguished from a willingness to assist. The Crown did however concede that the offer could be taken into account as an indication of remorse on the part of the offender.
Notwithstanding my view that the Crown’s approach borders more on the pedantic than the substance, I think the safer approach is simply to take the offer into account.
The offences include three charges of trespass. These are Commonwealth crimes. I think the appropriate way to deal with these offences, as suggested by the Crown, is to impose a fine for each of them.
As I have already mentioned the matter was adjourned to obtain an ICO assessment. Notwithstanding the positive assessment, the offender, through his lawyer, changed his target result to be a suspended sentence. Specifically it was submitted that the sentence should be suspended after the service of the 80 days that the offender has already been in custody.
The change of tack seems to have arisen from the sentencing of Mr Vecchi. On one approach this is a valid suggestion having regard to principles of parity. The Crown however pointed out the significant distinctions in both subjective features and the comparative extent of criminality.
Although in this case, from a practical point of view, there may be little difference between a Good Behaviour Order attached to a suspended sentence and an ICO, the Crown said that the latter was the more ‘severe’ sentence.
The Crown submitted that general deterrence was a prime objective for sentencing in this matter. This would not be achieved through a suspended sentence. I agree with the Crown. General deterrence is important here and while I have decided to impose an ICO, the offender should know that he was on the very cusp of receiving further full-time imprisonment.
Besides general deterrence, it is also important for me to take into account the provisions of the Crimes (Sentencing) Act2005 in particular ss 6,7 and 33. I think I have already covered the provisions of s 10.
In relation to the objective seriousness of the thefts of the two bobcats they are obviously the more serious crimes. They had a combined value of about $100,000, and although they were returned undamaged, they represented a theft of significant assets. In addition there is a degree of planning, although as observed above, at a far from sophisticated level. I assess the theft of the bobcats as being just below medium objective seriousness.
As to the balance of the offences I do not think they rise much above minor objective seriousness.
Orders:
I make the following orders:
(i)Receiving stolen property (CC5933/2020): imprisonment for 9 months (reduced from 12 months) to commence today and end on 27 January 2022.
(ii)Attempt minor theft (CC8609/2020): imprisonment for 4 months (reduced from 6 months) to commence today and end on 27 August 2021.
(iii)Three counts of trespass (CC8610/2020, CC6154/2020 and CC6206/2020): a fine of $750 for each offence (making a total of $2,250) to be paid within 12 months of today.
(iv)Theft (CC6153/2020): imprisonment for 2 years (reduced from 2 years and 6 months) to commence on 27 November 2021 and end on 26 November 2023.
(v)Theft (CC6205/2020): imprisonment for 2 years (reduced from 2 years and 6 months) to commence on 27 November 2022 and end on 26 November 2024.
(vi)Burglary (CC8613/2020): imprisonment for 6 months (reduced from 7.5 months) to commence 28 July 2024 and end on 27 January 2025.
(vii)The total period of imprisonment is 3 years and 9 months to commence on 28 April 2021 and end on 27 January 2025.
(viii)The above imprisonment is to be served by way of an Intensive Corrections Order.
(ix)It is a condition of the Intensive Corrections Order that the offender submit to assessment by a psychiatrist to ascertain the nature of any psychiatric condition from which he suffers and thereafter to follow any recommendations as to treatment and/or counselling.
(x)It is an additional condition of the Intensive Corrections Order that the offender engage in substance use and mental health treatment as directed.
| I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Elkaim. Associate: Date: 28 April 2021 |
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