R v Reid
[2018] ACTSC 368
•14 November 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Reid |
Citation: | [2018] ACTSC 368 |
Hearing Date: | 13 November 2018 |
DecisionDate: | 14 November 2018 |
Before: | Mossop J |
Decision: | See [33] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – two counts of aggravated burglary with a crow bar in company – resisting a territory public official – possess crow bar offence taken into account – poor criminal history – guilty pleas – significant history of alcohol and polysubstance abuse – hopeful factors for rehabilitation – significant support programs available in the community – custodial sentence with shorter than usual non-parole period |
Legislation Cited: | Crimes Act 1900 (ACT), s 380(1) Crimes (Sentencing) Act 2005 (ACT), Pt 4.4 Magistrates Court Act 1930 (ACT), s 90B |
Parties: | The Queen (Crown) Nathan Reid (Offender) |
Representation: | Counsel D Perks (Crown) G Mansfield (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service NSW/ACT (Offender) | |
File Numbers: | SCC 178 of 2018 SCC 179 of 2018 SCC 259 of 2018 |
MOSSOP J:
Introduction
The offender, Mr Nathan Reid, has pleaded guilty to two counts (CC2018/3543, CC2018/3544) of aggravated burglary in company contrary to s 312 of the Criminal Code 2002 (ACT). Aggravated burglary attracts a maximum penalty of 20 years imprisonment or 2000 penalty units or both.
The offender pleaded guilty to a charge transferred pursuant to s 90B of the Magistrates Court Act 1930 (ACT), namely, resisting a territory public official (CC2018/3542) contrary to s 361(1) of the Criminal Code attracting a maximum penalty of 200 penalty units or 2 years imprisonment or both.
The offender has asked the court to take into account the following additional offence in sentencing him, namely:
(1) possessing an offensive weapon (CC2018/11398) contrary to s 380(1) of the Crimes Act 1900 (ACT), which carries a maximum penalty of a fine of $1000, imprisonment for 6 months or both.
The schedule containing this charge refers to two principal offences, that is, both the aggravated burglary charges. Neither party addressed the question of whether or not it was possible under Pt 4.4 of the Crimes (Sentencing) Act 2005 (ACT) to take into account a charge when sentencing for more than one principal offence. I have sentenced him on the basis of the schedule without examining the correctness of the assumption which underlies it. In the circumstances of this case, having regard to the nature of the scheduled charge the issue is not one of significance.
Facts
After 4.30am on 5 March 2018, an employee of Bakers Delight at the Gungahlin Marketplace (‘the marketplace’) called 000 describing two people breaking into the marketplace. The two offenders, Mr Reid and Alexander Dimitrov, had forced entry to the marketplace by smashing the glass automatic doors. The offender was carrying a crow bar. This gives rise to the charge of possess offensive weapon (CC2018/11398) which is to be taken into account. The co-offender, Mr Dimitrov, was carrying a hammer.
Closed-circuit television (CCTV) footage shows the offender jumping over the Boost Juice counter at 4.38am. Shortly thereafter, the co-offender joined Mr Reid in the store where they broke open a number of cupboard doors, and accessed cash register drawers in that store. This gives rise to the first count of burglary (CC2018/3543). Shortly thereafter, Mr Reid used his crow bar to force entry to Creamery and Co causing significant damage to the front security doors to the store. Once in the store, the offenders accessed the cash drawer, which contained the daily float of $500. This gives rise the second aggravated burglary charge (CC2018/3544).
Shortly thereafter, police arrived at the marketplace and saw a white Toyota Corolla parked in the bus stop, adjacent to the main entry doors. The car was on and idling. Police saw the offenders force their way through the automatic doors and run from police. Police directed Mr Reid to “… drop the bar” and the offender was pursued for approximately 30m before police took him to the ground. Mr Reid continued to struggle as he was handcuffed. That gives rise to the charge of resisting a territory public official (CC2018/3542). Police located the crow bar on the road in the vicinity of the front entrance a short time later.
DNA evidence found in the car provided extremely strong support for the proposition that the offender was a contributor to one of the items found in the vehicle.
Objective seriousness
The two aggravated burglaries are in the low to mid range of objective seriousness. They involve commercial premises. They occurred at a time when it would not be expected that other persons were present (although, in fact, at least one person was present). Some damage was done to obtain access to the premises. There is only a minimum level of premeditation that would be required for such burglaries.
The charge of resisting a public official is in the low to mid range of objective seriousness. It is more serious because it involves resistance to a uniformed police officer attempting to effect a lawful arrest. On the other hand, there is only limited information in the Agreed Statement of Facts about the nature or duration of his struggle against the arresting officer.
The scheduled offence arises out of possession of the crowbar. It is in the low range of objective seriousness. It is very closely related to the burglary as that was the purpose for which it was carried.
Subjective circumstances
Mr Reid is recorded in the pre-sentence report as being an Aboriginal man of the Wiradjuri people and is 33 years old. He described a difficult upbringing and childhood. He is one of four siblings of his parents’ union. His parents separated when he was 13. His father died suddenly in December 2017. He is still dealing with this. He reported he was well supported by his mother who visits him frequently in custody. Mr Reid has two children from two previous relationships. His oldest child, a daughter aged 15, currently lives with his ex-partner. He reported ongoing contact with that daughter when in the community. His youngest child, a son of 8, is subject to an 18 year Care and Protection Order and lives in a kinship care arrangement with his maternal grandmother. The author of the pre-sentence report notes that, through Barnardos, Mr Reid’s son has visited him in custody. Prior to being remanded, Mr Reid was residing at Room4Change and at least when interviewed by the pre-sentence report author hoped to re-enter that facility upon release.
Mr Reid left school half way through Year 9. He reported completing a Certificate III in Painting and Decorating. He reported a limited employment history as a painter, labourer and trolley pusher. In the month leading up to being remanded in custody, he reported doing part time rendering work for a friend. He stated he would like to return to this employment, however that was unconfirmed. He also reported that he hoped to be supported through the Worldview Program with further employment opportunities. Evidence was given by Mr Anthony Longbottom about the Worldview Program. This program is a pilot program designed to provide support to persons about to leave custody and support following release from custody. It involves 13 weeks pre-release support and following release an opportunity for supported accommodation as well as part-time employment for at least six months. It also is able to accommodate the attendance of releasees at residential rehabilitation.
Mr Reid reported a history of alcohol dependency and polysubstance abuse. Despite a period of abstinence from alcohol use for a number of years, Mr Reid recommenced consuming excessive amounts of alcohol after his father died. He reported consuming 12 to 18 cans of mixed spirits almost every day prior to being remanded. On 5 November 2018, an Alcohol Screening Questionnaire identified his alcohol use over the last 12 months as a high risk, indicating dependence. From the ages of 17 to 23 he reported using heroin which escalated to the point where he was injecting up to 1g per day. He denied using heroin in over 10 years. He reported problematic use of amphetamines and methamphetamines. He reported using the substances every second day prior to the offence and disclosed he was under the influence of illicit substances at the time of the offences. He is currently prescribed methadone. The Drug Abuse Screening Test (DAST-10) indicated that his levels of drug‑related abuse over the last 12 months required assessment.
Mr Reid reported to the author of the pre-sentence report previous suicide attempts with his last attempt after the death of his father. He reported that he has been diagnosed with depression and anxiety and was prescribed an anti-depressant medication which he has taken. Information from ACT Health relating to Mr Reid’s mental health was not available at the time of completing the pre-sentence report.
Mr Reid admitted to having antisocial peers but stated that he planned to surround himself with prosocial supports upon his release. He denied having any outstanding debts and indicated that he intended to rely upon Centrelink payments upon release. He stated he was involved in and plans to return to weekly groups with the Winnunga Nimmityjah Aboriginal Health Centre. Mr Reid’s mother advised she would take him to church with her every Sunday. Mr Reid stated that he was aware that he needed to keep himself occupied so he does not become bored and lapse back into antisocial behaviours.
Mr Reid agreed with the Agreed Statement of Facts with the exception of the obstruct territory official charge which he claimed did not happen. He also initially denied having a weapon but later agreed he had used a crow bar to break in. He acknowledged that the offence was premediated and that he was under the influence of illicit substances. He was able to identify with the victims of his offending and said he would like to apologise to victims and was willing to pay damages. He did not blame anyone else for his offending behaviours.
Mr Reid has been assessed as having a high risk of general reoffending.
The author of the pre-sentence report suggested that if Mr Reid is to address his identified risk areas he would need to engage in interventions in relation to his alcohol and drug use, mental health, lack of prosocial supports (except for his mother) and unemployment.
Mr Reid gave evidence at the sentencing hearing. He explained the circumstances in which he had returned to drug use. He identified the courses which he had done whilst in prison. He expressed remorse for his conduct. He expressed his desire to rehabilitate himself so as to be able to lead a healthy life and to have more contact with his son.
There is evidence that there is presently available to him a bed at the Oolong House rehabilitation centre. Such a bed was also available to him in May 2018. The Oolong House residential rehabilitation program is a program which runs for 16 weeks.
Criminal history
The offender has a criminal history in the Australian Capital Territory (ACT) including convictions for offences which fall broadly into the categories of damage property, theft, assault, driving and being unlawfully at large. He has minor offences in New South Wales (NSW). His record includes numerous sentences of full‑time custody. His criminal history is significantly worse than that of his co-offender, Mr Dimitrov. Counsel for the offender recognised that his record did not assist him. He did however point to the offender’s successful completion of parole in relation to a previous sentence and the fact that he remained free of offending for a period of approximately 14 and a half months following the completion of the custodial portion of that previous sentence. He submitted that it was only the death of his father that led him to return to illicit drug use and crime.
Plea of guilty
Mr Reid pleaded guilty on 10 October 2018 to the two counts of aggravated burglary. This was following committal to the Supreme Court but before the trial date had been set. It is appropriate to allow a discount of 15% on account of the utilitarian value of these pleas.
Time in custody
The offender has spent 254 days, or eight months and nine days in custody from 5 March 2018 until yesterday.
Consideration
The offending in the present case is serious. The offender’s criminal history is a poor one. He has a significant history of abuse of illicit substances. There are some signs that give rise to at least a hope that the offender will be able to depart from his previous pattern of offending. First, there is the period prior to his father’s death in which he successfully completed his parole obligations arising from a previous conviction. Second, there is the existence of support in the form of residential rehabilitation, supported accommodation and employment available to him when he leaves custody. Third, there is his age and apparent motivation to change the trajectory of his life both for his own benefit and also for the benefit of his young son.
Obviously, for offending conduct of this nature, general and specific deterrence are significant considerations as is denunciation and punishment. The overall interests of the community will, however, clearly benefit from the long-term rehabilitation of the offender.
It is clear having regard to the nature of the offending and the offender’s criminal history that the only appropriate sentences on the aggravated burglary charges are ones of imprisonment. In my view, having regard to the imposition of a custodial sentence on the aggravated burglary charges, a custodial sentence on the resist public official charge is also the only appropriate sentence.
Notwithstanding that his participation in the offences was effectively the same as his co‑offender, the fact that he is significantly older and has a more extensive criminal history means that a more severe penalty is appropriate as the starting point. In my view, the appropriate starting point is a sentence of two years and four months (that is 28 months). I have taken into account the scheduled offence. With a discount of approximately 15% this gives a sentence of 24 months on each charge. The sentences on the aggravated burglary charges will be cumulative as to two months. On the charge of resisting a public official, he will be sentenced to 25 days imprisonment cumulative upon the other offences. This has been reduced from one month on account of the plea of guilty.
The aggregate sentence is therefore 26 months and 25 days.
It is appropriate that the sentences be backdated to take into account the time that the offender has spent in custody.
I will set a very short non-parole period of nine months. The reason that I will do this is because of the hopeful factors that I have referred to above. A substantial period on parole will permit him to be subject to supervision and also provide a very clear motivation for following through on the good intentions that he has expressed as to his conduct in the future.
I have set a short non-parole period on the basis of the availability of a residential rehabilitation program and the support provided by the Worldview program. If those programs were not available then I would not have made such a short non-parole period and the Sentence Administration Board would need to give careful consideration to whether or not it was appropriate to release him on parole if that structure and support was not available.
Orders
The orders of the Court are:
1. On the charge of aggravated burglary (CC2018/3543) the offender is convicted and sentenced to imprisonment for two years commencing on 5 March 2018 and ending on 4 March 2020.
2. On the second charge of aggravated burglary (CC2018/3544) the offender is convicted and sentenced to imprisonment for two years commencing on 5 May 2018 and ending on 4 May 2020.
3. On the charge of resisting a public official (CC2018/3542) the offender is convicted and sentenced to 25 days imprisonment commencing on 5 May 2020 and ending on 29 May 2020.
4. The non-parole period commences on 5 March 2018 and ends on 4 December 2018.
| I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 25 February 2019 |
3
0
4