R v Robertson (No. 2)
[2016] ACTSC 65
•5 April 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Robertson (No. 2) |
Citation: | [2016] ACTSC 65 |
Hearing Dates: | 18 February, 17 March, 20 April, 21 May, 11 November and 12 November 2015, 24 February and 31 March 2016 |
DecisionDate: | 5 April 2016 |
Before: | Refshauge J |
Decision: | 1. The convictions of Michael John Robertson of four counts of aggravated burglary and theft entered on 1 November 2012 be confirmed. 2. Michael John Robertson is re-sentenced for those offences. 3. For the offence of aggravated burglary on 15 November 2010 (CC 11/9043), Michael John Robertson is sentenced to three years imprisonment to commence on 31 May 2014 to take into account pre-sentence custody. 4. On the charge of theft on 23 January 2011 (CC 11/9289), Michael John Robertson is sentenced to twelve months imprisonment to commence on 1 December 2016, that is to be cumulative as to six months on the sentence for aggravated burglary committed on 15 November 2010. 5. For the offence of aggravated burglary on 6 February 2011 (CC 11/9046), Michael John Robertson is sentenced to three years imprisonment, to commence on 31 January 2016, that is, to be cumulative as to fourteen months on the sentence for theft committed on 23 January 2011. 6. For the offence of aggravated burglary on 26 February 2011 (11/9049), Michael John Robertson is sentenced to three years imprisonment to commence on 31 March 2017, that is to be cumulative as to fourteen months on the sentence for aggravated burglary committed on 6 February 2011. 7. For the offence of aggravated burglary on 26 January 2011 (11/10037), Michael John Robertson is sentenced to three years imprisonment to commence on 31 May 2018, that is to be cumulative as to fourteen months on the sentence for the aggravated burglary committed on 26 February 2011. 8. The sentence is suspended today, 5 April 2016, for three years. 9. Michael John Robertson is required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of three years with the following conditions: a. A probation condition that he be under the supervision of the Director-General or her delegate for 2 years or such lesser period as the person supervising him considers to be appropriate and that he obey all reasonable directions of the person supervising him, especially as to drug and alcohol treatment and counselling and mental health treatment and counselling; b. That he perform 500 hours of community service work within two years. 10. Michael John Robertson report to Eclipse House, London Circuit, Canberra City by 4:00pm today, 5 April 2016. 11. It is recommended, for the consideration of the person supervising Michael John Robertson that, amongst the treatment he may be directed to attend, the following be included: continued counselling with SAMSSA, counselling at Directions, particularly attendance of and completion of the Smart Recovery Program, and continued attendance at Alcoholics Anonymous and Narcotics Anonymous. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentencing – resentencing – aggravated burglary – theft – failure to attend periodic detention – inability to complete periodic detention – referral from the Sentence Administration Board – mental health problems – post traumatic stress disorder – chronic anxiety – depression – drug addiction – rehabilitation – treatment – Good Behaviour Order – community service work |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), ss 57, 58, 60, 68, 75(1)(f), 79(4), 82A, 86, Crimes (Sentencing) Act 2005 (ACT), ss 7, 33, Pt 4.4 Criminal Code 2002 (ACT), ss 308, 312, s 308 |
Cases Cited: | GW v The Queen [2016] ACTCA 9 Heard v The Queen [2015] ACTCA 6 |
Parties: | The Queen (Crown) Michael John Robertson (Defendant) |
Representation: | Counsel Mr D Sahu-Khan (Crown) Mr R Davies (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Defendant) | |
File Numbers: | SCC 53A of 2012 SCC 53B of 2012 |
REFSHAUGE J:
Between 15 November 2010 and 26 January 2011, Michael John Robertson committed four offences of aggravated burglary and one count of theft, for which I sentenced him in 2012.
The circumstances of aggravation of the burglaries were that they were committed in company. In three cases, Mr Robertson and two (in one case three) other persons entered the same Canberra social club and, in the other case, certain commercial premises. Mr Robertson was also charged with theft from automatic pay ticket machines at the ground level car park at Westfield Belconnen.
Mr Robertson was arrested on 26 September 2011 and was refused bail. He remained in custody until he was sentenced on 1 November 2012.
He was committed to this Court for trial on 23 February 2012 and, after trial dates were set for 11 June and 9 December 2013, Mr Robertson, on 28 August 2012, entered pleas of guilty to the abovementioned charges.
On 1 November 2012, he appeared before me for sentence. I convicted him of the four counts of aggravated burglary and one count of theft and made a Deferred Sentence Order. See R v Robertson (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, SCC 53A of 2012; 53B of 2012, 1 November 2012) (Robertson 2012).
The Deferred Sentence Order was made to enable Mr Robertson to attend the residential drug rehabilitation program conducted at the Karralika Therapeutic Community to address what I found was a long standing and serious drug addiction that caused or contributed to his criminality in committing these offences.
Mr Robertson returned to court on 25 October 2013, having completed the program. I had, then, a detailed report from the Karralika Therapeutic Community supported by a report from the Court Alcohol and Drug Assessment Service (CADAS), both of which made it clear that Mr Robertson had taken advantage of the opportunity that I had given him.
Indeed, as I noted in my sentencing remarks, the report from Karralika said:
Your Honour, while we can give no guarantees it is the opinion of the Clinical Staff that Mr Robertson has indeed made a remarkable attempt at recovery. He clearly understands what he needs to do and has the networks in place to get support if needed.
Mr Robertson himself said, at the time, that:
Karralika has given [him] the foundation to be a useful and pro-social member of society. [He is] very quickly becoming the man [he aspires] to be, honest, reliable, and caring.
I then imposed a sentence for each of the offences, which was within the range suggested when I had made the deferred sentence order. I also took into account offences that were included in a List of Additional Offences under Pt 4.4 of the Crimes (Sentencing) Act 2005 (ACT). The listed offences were all associated with the other offences, principally the theft of the property from the places where the burglaries had been committed. The sentence that I imposed was a total term of imprisonment for seven years, which was to commence on 25 August 2012 to take into account his pre-sentence custody. I then set a period of two years for the term of imprisonment to be served by periodic detention to commence on 1 November 2013 and suspended the balance of the sentence from 25 October 2015. I made a Good Behaviour Order for 2 years with no conditions other than the core conditions under s 86 of the Crimes (Sentence Administration) Act 2005 (ACT). See R v Robertson (Unreported, Supreme Court of the Australian Capital Territory, Refshauge ACJ, SCC 53A and 53B of 2012, 25 October 2013) (Robertson 2013).
Mr Robertson commenced serving his periodic detention but began to have problems in doing so. He failed to attend on 31 January 2014 but, because that was a result of health problems, he was given approval not to perform periodic detention for that period. That would, of course, require him to serve that period at a later time: ss 57, 58 and 68 of the Crimes (Sentence Administration) Act. [These provisions have since been repealed, however, for the purposes of this judgment references to the Crimes (Sentence Administration) Act will be to the Act as it stood at 31 January 2014]
He failed to attend again, however, on 28 February 2014, but made an application to be permitted not to perform periodic detention on that occasion which was approved by the Chief Executive.
On 11 April 2014, he failed to attend but, again, was given approval not to perform periodic detention for that period on account of his health. He then failed to appear on 6, 13 and 20 June 2014. After considering medical certificates, the Sentence Administration Board granted Mr Robertson approval not to perform periodic detention for those periods.
He subsequently failed to attend on 1 August 2014 and the Board also granted him approval not to perform periodic detention for that period. Mr Robertson again failed to attend also on 8 August 2014 but was subsequently given approval not to perform periodic detention for that period on the grounds of his health. Mr Robertson then failed to attend on 15 August 2014 but the Board resolved to take no further action on that occasion.
Finally, on 12 September 2014, Mr Robertson failed to attend and the Board held a further hearing.
In all, of the 104 periods ordered to be served, Mr Robertson had attended a total of 38. He failed to attend on 13 occasions but most of those were approved, ultimately, or no action was taken.
Including those periods, which were added under ss 57, 58 and 60 of the Crimes (Sentence Administration) Act, he has 66 periods uncompleted. That amounts to about one year and three and a third months uncompleted.
At its meeting on 14 October 2014, the Board considered that Mr Robertson would not be able to serve the balance of his periodic detention due to exceptional circumstances.
Accordingly, the Board resolved, in accordance with s 75(1)(f) of the Crimes (Sentence Administration) Act, to refer Mr Robertson back to this Court to be dealt with under s 82A of that Act.
Reason for non-attendance at periodic detention
As can be seen from the description of Mr Robertson’s attendance at periodic detention, it deteriorated significantly from June 2014.
At its meeting on 14 October 2014, the Sentence Administration Board received medical information, some of which is referred to below, and a request by Mr Robertson that the matter be referred back to this Court.
The transcript records:
... the Board finds that for medical reasons Mr Robertson is unlikely to be able to serve the remainder of his periodic detention period by periodic detention having regard particularly to his ill health and therefore refers Mr Robertson to the sentencing court to be dealt with under s 82A of the Crime [sic] (Sentencing Administration) Act.
It has now become clear that he was suffering from depression and chronic anxiety during that period. Indeed, from 5 to 13 August 2014, he was admitted to the Adult Mental Health Unit at The Canberra Hospital.
The genesis of his mental condition seems to be experiences he suffered while in custody in 1989, when he was sexually assaulted and experienced what his current partner described as “some horrific things” that he encountered while in prison.
While undertaking periodic detention, he had, for some time, been treated by his general practitioner for depression, which was described in April 2014 by his general practitioner as “a complicated history with depression and opiate use”.
This condition continued and, in October 2014, his general practitioner confirmed that he was still undergoing treatment for anxiety and depression and that, in particular, that posed a serious problem for his periodic detention.
As noted above (at [23]), it resulted in intervention from the mental health system including his admission to hospital; he was later seen by a clinical psychologist under a mental health plan.
The psychologist confirmed that, on the first occasion he saw Mr Robertson in October 2014, he “appeared anxious and very stressed”, partly through having “set himself an almost impossible task to work, have a family life and to attend many meetings of which was [sic] to improve his personal functioning.”
The treatment included exercises to help him deal with anxiety and, at the second treatment session, Mr Robertson appeared “calm and focussed”.
While the treatment has been somewhat successful, that does not, of itself, determine how to proceed.
Reference from the Sentence Administration Board
Once the Sentence Administration Board has, under s 75(1)(f) of the Crimes (Sentence Administration) Act,referred an offender to the sentencing court, the court has power under s 82A of that Act either to cancel the offender’s periodic detention or to re-sentence the offender.
The effect of cancelling the periodic detention order is to require the offender to serve the remainder of the sentence by full-time detention, at least until the end of the periodic detention period. See s 79(4) of the Crimes (Sentence Administration) Act.
The principles set out in the Crimes (Sentencing) Act 2005 (ACT) apply to any re-sentencing by the court.
There seems to me to be similarities between the situation where an offender is referred back to the court because of exceptional circumstances leading to the inability of the offender to complete periodic detention and the situation where a Good Behaviour Order has been breached. There are some differences, obviously, but some general principles would apply.
I have recently dealt with those considerations in R v Curtis (No 2) [2016] ACTSC 34 at [15]-[19].
In particular, it seems to me that where periodic detention has been imposed, it should not be easily assumed that failure to complete the sentence of imprisonment by periodic detention should not result in service of the term of imprisonment by full-time custody, consequent upon cancellation of the periodic detention order.
Nevertheless, as with a Good Behaviour Order made when a sentence of imprisonment is suspended, the legislation does not evince an intention that it should be presumed necessarily that that will be the result of a breach.
Various factors must come into play, as is clear from GW v The Queen [2016] ACTCA 9.
Accordingly, it seems to me that I need to have regard to Mr Robertson’s subjective circumstances and the objective seriousness of the offence before I can decide whether to cancel the periodic detention order or re-sentence him and, if re-sentencing him, determine the sentence to be imposed.
Subjective circumstances
I set out Mr Robertson’s subjective circumstances in detail in Robertson (2012) and I described his successful completion of the program at the Karralika Therapeutic Community in Robertson (2013).
I do not need to repeat those matters, though a brief summary is useful as I update the position.
Mr Robertson is now aged 44 and, although he had a good relationship with his parents, his father abused alcohol and was violent towards the family, which resulted in Mr Robertson leaving home early. He moved to Queensland to live with an aunt, by which time he was using drugs and, as a result, was unable to return home. He left school after obtaining his Year 10 Certificate, gaining employment as an apprentice boilermaker but became unemployed when the company closed its business. He moved to Canberra in 1990 and, in 1992, commenced a five year relationship with a woman in Canberra with whom he had two children from whom he is now estranged. In 2005, he entered into another relationship in which he and his partner had two daughters. That relationship has also now ended, but he has some contact with both the children of the relationship.
In about 2012, he commenced a relationship with his current partner. Initially, that has been a very positive and supportive relationship and I had a letter from her which was supportive.
Regrettably, the relationship has become a little more rocky in recent times but his partner was present in court during the sentencing proceedings and, despite the tension, the most recent Pre-Sentence Report noted that “they maintain a mostly positive and supportive relationship” which was confirmed by his partner. Part of the stressors on the relationship has come from the uncertainty around the outcome of these proceedings which has made Mr Robertson anxious.
Mr Robertson’s misuse of drugs, including abuse of alcohol, has a long and entrenched history, including most illicit drugs but particularly amphetamines, cannabis and heroin, then later illicit oxycontin. He has also consumed alcohol at hazardous levels.
He had a period of abstinence between 2008 and 2009 and commenced on methadone programs at various times. He commenced a methadone program when he entered the Alexander Maconochie Centre (AMC) in September 2011 but reduced it in order to take up the place at the Karralika Therapeutic Community.
I have referred earlier to his success in the Karralika Therapeutic Community and it clearly was a positive time for him. He says that he has made a determined effort to be abstinent since then.
Unfortunately, he did return positive results on urinalysis for methylamphetamine on 8 April 2015 and 30 April 2015 though this appears to have been related to the difficulties he had with his mental health, clearly triggered by the post traumatic stress disorder he has suffered from the experiences in prison.
The alcohol and drug worker assessing him at CADAS recommended that he engage in methadone or buprenorphine program. The report explained:
Mr Robertson was warned about the risk of fatal overdose, due to his reduced tolerance to depressant type drugs combined with the occasions when he is suicidal. He was advised that opioid replacement therapy is best practice for people with opioid dependence.
Mr Robertson was, however, resistant, and he saw a co-morbid alcohol and drug service psychiatrist, Dr Kankanamange, who did not recommend any medications and found no acute risk for suicide and no clinical indication for pharmacotherapy.
Although Mr Robertson failed to attend a number of appointments with CADAS, it does not appear to me that I should draw a negative inference from that. He did attend in early March 2016 at a time when he was experiencing some difficulties and, on that occasion, his recovery strategies were revisited and practical support was provided. He felt the promotion to him of pharmacotherapy was not helpful and caused some reluctance to engage with CADAS but he did use it as a helpful resource when he was in crisis.
It is also notable that, when he attended CADAS during the remand period, he did not show any signs of intoxication or withdrawal.
The reports from CADAS were helpful but I was particularly assisted by an oral report from Ms Kate Gardiner, who helpfully made herself available at short notice to give testimony in court. She confirmed what I have noted above at ([49]-[52]) and, in particular, the assessment that Mr Robertson was committed to this treatment.
Other than the brief period in April 2015, which I note has resulted in him being charged with an offence of driving with a drug in his saliva, he says that he has not consumed drugs since at least October 2012.
Attempts were made for him to attend the Arcadia House eight week Transition Program. He was admitted and commenced the program but did not complete it. The reasons for that are not entirely clear; one report said that he was unwell, another said that he was confronted with an incompatible resident which made it impossible for him to continue.
He is currently attending Alcoholics Anonymous and Narcotics Anonymous regularly and, although it is not possible to confirm that because of the essential requirement of anonymity in those programs, some references I had seen were confirmatory of his continued attendance.
I have referred above (at [23]-[30]) to Mr Robertson’s mental health. I had a Forensic Psychiatric Report which showed that he had been diagnosed in mid 2015 with an adjustment disorder, a history of post-traumatic stress disorder, alcohol abuse and polysubstance abuse.
The most recent diagnosis, however, is of post-traumatic stress disorder with delayed expression.
This relates back to the experiences in prison to which I have already referred (at [24]).
He has now accessed the agency Service Assisting Male Survivors of Sexual Assault (SAMSSA) where he is a voluntary counselling client.
A report from that agency indicated that he has remained in contact with it and its staff consider that he is motivated to engage in the counselling. He has disclosed good insight as to the value of the counselling to him and his partner and family and his counsellor accepts that he appears to have been honest and open with him. It is expected that he would continue to engage with this service in a positive way and that is clearly a significant step to address the risk factors for any re-offending.
I have also referred above to the progress that his psychologist has indicated that he is making.
I note that Mr Robertson has been making efforts to engage with pro-social companions and his partner, who is a qualified drug and alcohol worker with qualifications in mental health, is clearly likely to be able to encourage and facilitate that.
Mr Robertson has an extensive and very serious criminal history with, apart from the current matters, seventy-eight convictions on his record in twenty-three court appearances and a number of sentences of imprisonment. Included in his record are twenty offences of break, enter and steal or burglary and also a number of other dishonesty offences.
Nevertheless, apart from the drug driving offence to which I have already referred, he has committed no further offences since I sentenced him, as noted in Robertson (2013). While it is not a perfect record and it is not a long time for someone with such an entrenched habit and long criminal history, he is clearly making positive and successful steps to avoid relapse into criminality. For an addicted person, four and a half years without serious offending is a significant milestone.
His criminal record notes two offences dealt with in 2013 but those offences were committed between July and September 2011.
I also had a number of references. One, from a person who had become a friend from their time together at the Karralika Therapeutic Community, described him as “a kind, caring individual, who cares for his family and friends”. He stated that Mr Robertson had “acknowledged his problems and the mistakes he has made, and is working very hard”.
He noted, as must be human experience, that “during difficult times, especially in the early stages of recovery, people slip up and make mistakes”.
He described Mr Robertson as continuing “to grow, work and learn through these problems and mistakes”. The referee had two years sobriety and supported Mr Robertson.
Another friend who met Mr Robertson in prison saw him then as “in the midst of a very serious drug addiction” and described him as not the sort of person with whom he would want to associate. Since then, he has seen him at meetings of Alcoholics Anonymous and “the change was nothing short of amazing”. He described him as “honest, reliable, hard-working, caring” and working passionately with other addicts.
Another referee, who also met Mr Robertson through the Karralika Therapeutic Community, was his sponsor in Alcoholic Anonymous and attested to the work that Mr Robertson has put into his recovery enabling him to “maintain a healthy drug and alcohol free lifestyle”. He confirmed that Mr Robertson attends meetings regularly, participates in service work and “has started to bring about the necessary changes that are required to bring long-term recovery”.
Quite significantly, I also had a reference from his present partner’s daughter who expressed concern when she first learned that her mother was entering a relationship with Mr Robertson, because of her disquiet at his past. She expressed the opinion that, in the two years since she has known him, she “could not be more proud of how far he has come and the man he has become”. She recently gave birth to a son and Mr Robertson has provided help and support to her which is greatly appreciated.
In November 2014, his then employer described him as “a capable and talented formwork carpenter” and someone who would “mentor ... younger employees”. He described him as a person who “accepts responsibility, is a great achiever, works well with other employees” and his efforts are greatly appreciated by his employer.
The evidence about Mr Robertson’s employment was a little difficult to understand completely. It appears that he has been fairly regularly employed since being sentenced in 2012. Initially, he was working six days a week between 7:00 am and 3:00 pm as a form work carpenter and steel fixer. That produced some of the stress that led to his depression and anxiety and perhaps a flaring of the post-traumatic stress disorder.
More recently, he appears to have been working as a fencing contractor, though whether that is full-time or not is a little difficult to ascertain from the evidence. The most recent Pre-Sentence Report stated that he “remains employed on a casual basis” and notes that he is also in receipt of Centrelink payments, which suggests an employment of less than full-time.
Nevertheless, he seems to have the capacity to pay a reasonable fine, if given time to pay.
He is also interested in refurbishing furniture as a hobby and has enrolled in an online diploma of social services.
The author of the most recent Pre-Sentence Report expressed the following opinion:
It would appear Mr Robertson has taken benefit [sic] of this period between court appearances. He has continued to engage with appropriate support services in relation to drug use and personal trauma as well as maintaining steady employment. Should Mr Robertson continue to maintain his current positive approach and progress with targeted interventions, his assessed medium to low risk of general re-offending could decrease.
Objective seriousness
In order to determine the matter, I also need, obviously, to have regard to the objective seriousness of the offences.
I have described the offences in some detail in Robertson 2012. I take into account what I said there. They are serious offences, as is clear from the maximum penalty mandated by the legislature. Aggravated burglary is an offence under s 312 of the Criminal Code 2002 (ACT) and carries a maximum penalty of 2000 penalty units (that is, at the time, a fine of $220,000) and imprisonment for twenty years. Theft is an offence against s 308 of the Criminal Code and carries a maximum penalty of 1000 penalty units (that is, at the time, a fine of $110,000) and imprisonment for ten years.
I have also referred earlier to a number of offences on a List of Additional Offences under Pt 4.4. They should be taken into account as set out in R v Campbell [2010] ACTCA 20 at [46]-[50]. I do not need to detail them. They are set out in Robertson (2012) and I have regard to what I there said.
The offences were clearly planned, which is an aggravating feature, and involved destruction of property in order to gain entry. It is said in Simondsv The Queen [2013] ACTCA 13 at [54] that the burglary of commercial premises is less serious than the burglary of residential premises. See also Heard v The Queen [2015] ACTCA 6 at [33]. The premises the subject of these aggravated burglaries were all commercial premises, as were the premises on which the theft was committed.
The operation in each case was reasonably sophisticated, requiring tools which the offenders brought with them to gain entry into poker machines and cash changing machines. They also attempted to conceal their identities by covering their faces with clothing.
The amount stolen was substantial, a total of $50,721.58, which is particularly relevant as the thefts form part of the List of Additional Offences. Somewhat more problematic in terms of how it affects the sentence, but nevertheless relevant, is that, in the burglaries, a total of $292,571.69 damage was done.
All in all, they were serious versions of the relevant offences.
Consideration
It seems to me that the progress Mr Robertson has made justifies me in re-sentencing him rather than cancelling the periodic detention and requiring him to serve a little over fifteen months imprisonment.
Although the progress he has made has not been uniformly positive, I pointed out in Saga v Reid [2010] ACTSC 59 at [89], that drug addiction is so pernicious it can take a number of failed attempts at rehabilitation before it is successful. I there said:
It is hard work and there is no short cut or quick fix. It can take some time, and some failures, before an offender addict manages to break through the barriers to reach even more effective rehabilitation.
It seems to me that this accurately describes Mr Robertson. He maintains his commitment; apart from a failure in April 2015, he has managed to remain crime free and, so far as the evidence is concerned, to remain drug free.
Importantly, he has employment and a relationship which, though he and his partner have more recently experienced some difficulties in it, they seem to be overcoming, and often that will strengthen such a relationship.
For an offender with such a significant, serious and appalling criminal record, the steps Mr Robertson is making are clearly in the interests of the community. Apart from the driving offence, he has committed no offences since 2011 and the driving offence is, although somewhat related as it evidences drug use, much less serious than the offences for which I have sentenced him.
I note that in GW v The Queen the Court of Appeal has held that, in appropriate circumstances, it is proper to re-sentence a person who is unable to complete a sentence of periodic detention to a Good Behaviour Order with a community service work condition when the sentence of imprisonment is suspended.
Re-sentencing
I have regard to the purposes for which sentencing may be imposed set out in s 7 of the Crimes (Sentencing) Act. In this case, elements of general deterrence must be significant, although not so significant as to require, in all the circumstances, a sentence of full-time imprisonment.
It seems to me, also, that rehabilitation plays a significant part in this sentencing. The benefit to the community and its security and safety in the reform of a serious criminal offender, as Mr Robertson was, is undoubted.
I have regard to the matters set out in s 33 of the Crimes (Sentencing) Act so far as I know them. They are set out in these remarks earlier as well as in what I said in Robertson (2012) and Robertson (2013).
I have regard to the Mr Robertson’s plea of guilty. It was not made at the earliest opportunity but it was, in the circumstances, reasonably significantly before the commencement of the trial and, taken with the actions of Mr Robertson subsequently, there is clear evidence of remorse and his willingness to facilitate the course of justice.
I have regard to his subjective circumstances and the efforts he has made in rehabilitation. He should be extremely proud of the success he made in the Karralika Therapeutic Community but the real test of that will be whether he is able to continue to avoid criminality and manage his drug addiction.
I am aware of the objective seriousness of the offences and the need for that to be represented clearly in the sentence imposed.
I note that Mr Robertson served 400 days in custody prior to being sentenced. Since then, he has spent a further 9 days in custody through bail breaches. I note that he has also completed 38 periods of detention which have discharged, for each period, one week of his imprisonment. This can be taken into account in accordance with the principles I set out in R v Kekalainen (No 2) [2015] ACTSC 369 at [48]. I shall take all those periods into account.
Because there are multiple sentences to be imposed, I have carefully considered the length of each of the sentences to be imposed for each of the offences and ensured that Mr Robertson is not punished twice.
I have also considered whether the sentences should be partly or wholly concurrent because, for example, they are part of the same enterprise or otherwise. I have then reviewed the length of the term of imprisonment arrived at to ensure that the principle of totality is respected and that the total sentence is adequate to reflect the criminality of the offence committed, 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 Robertson to achieve his goals in the community. Where necessary, I have adjusted the accumulation or concurrency of the individual sentences to achieve that.
I note that the most recent updated Pre-Sentence Report confirms an earlier assessment that Mr Robertson is suitable for a community service work condition of a Good Behaviour Order.
Mr Robertson, please stand:
12. I confirm the convictions of four counts of aggravated burglary and theft which I entered on 1 November 2012.
13. I have decided to re-sentence you for these offences.
14. For the offence of aggravated burglary on 15 November 2010, I sentence you to three years imprisonment to commence on 31 May 2014 to take into account pre-sentence custody. Had you not pleaded guilty I would have sentenced you to four years imprisonment.
15. On the charge of theft on 23 January 2011, I sentence you to twelve months imprisonment to commence on 1 December 2016, that is to be cumulative as to six months on the sentence for aggravated burglary committed on 15 November 2010. Had you not pleaded guilty, I would have sentenced you to sixteen months imprisonment.
16. For the offence of aggravated burglary on 6 February 2011, I sentence you to three years imprisonment, to commence on 31 January 2016, that is, to be cumulative as to fourteen months on the sentence for theft committed on 23 January 2011. Had you not pleaded guilty, I would have sentenced you to four years imprisonment.
17. For the offence of aggravated burglary on 26 February 2011, I sentence you to three years imprisonment to commence on 31 March 2017, that is to be cumulative as to fourteen months on the sentence for aggravated burglary committed on 6 February 2011. Had you not pleaded guilty, I would have sentenced you to four years imprisonment.
18. For the offence of aggravated burglary on 26 January 2011, I sentence you to three years imprisonment to commence on 31 May 2018, that is to be cumulative as to fourteen months on the sentence for the aggravated burglary committed on 26 February 2011. Had you not pleaded guilty, I would have sentenced you to four years imprisonment.
19. That is a total of seven years imprisonment.
20. I suspend the sentence today for three years.
21. I direct that you sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of three years with the following conditions:
(a) a probation condition that you be under the supervision of the Director-General or her delegate for 2 years or such lesser period as the person supervising you considers to be appropriate and that you obey all reasonable directions of the person supervising you, especially as to drug and alcohol treatment and counselling and mental health treatment and counselling;
(b) I direct that you perform 500 hours of community service work within two years.
22. I recommend for the consideration of the person supervising you that, amongst the treatment you may be directed to attend, the following be included: continued counselling with SAMSSA, counselling at Directions, particularly attendance of and completion of the Smart Recovery Program and continued attendance at Alcoholics Anonymous and Narcotics Anonymous.
23. I direct that you attend at ACT Corrective Services, Eclipse House, London Circuit, Canberra City, ACT, by 4:00 pm today for arrangements to be made about probation and community service work.
[His Honour then spoke directly to Mr Robertson]
Mr Robertson, that is the formal order I have made and I briefly explained it to you on the last occasion but, in effect, I have re-sentenced you to the same period of imprisonment so I do not think that has changed in any sense, but I have backdated it to take into account the time you spent in custody before going to Karralika, the time in custody for your breaches of bail and your periodic detention. I have suspended it today for three years because I think that is a reasonable time. I could suspend it for a further period of time but, really, I think that is a reasonable time.
I have made a Good Behaviour Order which is required to be for the same period, namely for three years. I have made two conditions to that. I did not make a probation condition on the last occasion because I was starry eyed about your success at Karralika, but I think a probation condition is necessary and it is also desirable in the context of the community service order.
A probation officer has two roles really, as I see them. One is a degree of control, so that they can supervise you and make sure that you stay on the straight and narrow, but, also, the person is there as a resource, as an independent, relatively objective person who has access to information about agencies and possibilities that can assist you when things go wrong.
I have not added CADAS to the order but I am sure that you can access CADAS also, if necessary, when in crisis but, if you cannot work out your relationship with Directions, which I hope you will establish, no doubt you can still use Karralika if necessary. It is important to identify when you are in crisis and your partner, if things are going well and that proves to be a long term situation, can help you to go off and get help before things go wrong because, otherwise, you will be back here and, as I frankly said, I retire in May next year. After that, who knows whether a judge who understands what you are doing will be available or not.
Finally, I have said that there must be some formal punishment to recognise the period of unserved periodic detention and I have made an order that you undertake 500 hours of community service work. That has to be completed within two years.
| I certify that the preceding one hundred and seven [107] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 26 April 2016 |
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