R v Saunders
[2020] ACTSC 359
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Saunders |
| Citation: | [2020] ACTSC 359 |
| Hearing Dates: | 20 November, 21 December 2020 |
| Decision Date: | 21 December 2020 |
| Before: | Murrell CJ |
| Decision: | Sentenced to imprisonment and placed on a drug and alcohol |
| treatment order. Reparation orders made. See [63]–[69]. | |
| Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND |
| PROCEDURE – Judgment and Punishment – Sentence – Aggravated burglary – Recklessly damage property – Theft – | |
| Drug and alcohol treatment order | |
| Legislation Cited: | Crimes Act 2002 (ACT) ss 45A, 308, 312, 403 Crimes (Sentencing) Act 2005 (ACT) ss 19(3), 35, 46J |
| Parties: | The Queen (Crown) Alexander Ian Saunders (Offender) |
| Representation: | Counsel |
| V Conliffe and M Dyason (Crown) J Sabharwal (Offender) | |
| Solicitors | |
| ACT Director of Public Prosecutions (Crown) | |
| Sharman Robertson (Offender) | |
| File Number(s): | SCC 154 of 2020 |
| MURRELL CJ: | |
| Introduction |
1. The offender is to be sentenced for the following offences.
(a) Aggravated burglary in company with two unknown persons and with offensive weapons, with intent to commit theft, contrary to s 312 of the Criminal Code 2002 (ACT) (Criminal Code). The maximum penalty is a fine of $320,000, 20 years’ imprisonment or both.
(b)
Recklessly damage property by joint commission (a glass sliding door, a television and internal walls), contrary to ss 403 and 45A of the Criminal Code.
The maximum penalty is a fine of $160,000, 10 years’ imprisonment or both.
(c) Aggravated burglary in company with an unknown person and with offensive weapons, with intent to commit theft, contrary to s 312 of the Criminal Code. The maximum penalty is a fine of $320,000, 20 years’ imprisonment or both.
(d) Theft by joint commission (a passport and watch), contrary to ss 308 and 45A of the Criminal Code. The maximum penalty is a fine of $160,000, 10 years’ imprisonment or both.
2. The offender has been in custody since his arrest on 5 June 2020.
3. On 24 July 2020, when the matter was mentioned for the fifth time in the Magistrates Court and before a full brief of evidence was prepared, he pleaded guilty to each charge. The matters were committed to the Supreme Court for sentence.
4. Although the pleas were not entered at the earliest reasonable opportunity, they were entered at a very early time. Despite the strength of the Crown case, under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), in recognition of the utilitarian value of the pleas, the offender will receive a discount of 25 per cent on the sentences that would otherwise have been imposed.
Facts
5. At about 11:28 PM on 30 May 2020, the offender and two unknown males arrived at a two-storey unit on Flemington Road, Harrison. The offenders were dressed in dark clothing and wore dark face masks. The four residents (NS, LC, KH and FH) were present in the unit.
First aggravated burglary
6. The offender and co-offenders smashed open the rear glass sliding door that led to a small courtyard and entered the unit. One of the co-offenders was armed with a hammer and another was carrying a baseball bat. The offender was unarmed.
7. When the offenders entered the unit, they confronted NS. One of the unknown co- offenders used either the hammer or the baseball bat to strike NS on the left side of his face near his forehead, resulting in a laceration.
Damage property
8. The offenders searched the unit, damaging the television and using the bat and hammer to damage the internal walls of the unit.
9. The offender was attempting to gain entry to the downstairs bedroom that was occupied
by FH when LC called out that “someone's mum is in that room” (referring to FH). As
a result, the offender appeared to calm down. He apologised to FH and did not pursue
his attempt to enter her bedroom.10. Soon afterwards, the offenders left the unit.
11. Police were called at about 11:39 PM. They observed that NS was bleeding from the forehead. He was transported to Calvary Hospital, where he received treatment and stitches for the laceration to his forehead.
Second aggravated burglary and theft
12. At about 11:50 AM on 31 May 2020, FH, KH, and LC were present at the same unit. The offender and one unknown male attended the unit. They entered the unit through the broken rear glass sliding door. The offender was wearing a black balaclava, a dark blue round-neck jumper, white gloves, dark trousers, and black shoes. The co-offender was similarly attired. Both were armed with baseball bats.
13. Upon entering the unit, the offender and co-offender confronted FH and enquired as to
NS's whereabouts. They told her that they were with the “Comos”, referring to the
Comancheros, a motorcycle gang. FH tried to lock herself in her bedroom.
14. The offenders went upstairs, entered NS's bedroom and began to ransack the room. They opened a safe inside the bedroom and removed personal documents, including NS's passport and a Crenshaw brand watch, valued at approximately $1,600.
15. KH confronted the intruders and asked why they had come to the unit. The offender apologised to KH and went downstairs. Using the baseball bat, the co-offender jabbed KH in his crotch area and struck his left shoulder.
16. The offender and co-offender then left the unit, ran along Flemington Road and entered a grey Toyota Camry vehicle that was located further down the street.
17. Police were called. They obtained mobile phone footage filmed by neighbouring residents who had seen the offenders entering and exiting the unit.
18. On 5 June 2020, police searched a residence in Moncrieff. They seized a baseball bat that matched that used in the incident on 31 May 2020. In the offender's Ford car, they found a pair of track-suit pants. When the offender arrived at the address, his phone was seized.
19. Police noted that the offender resembled one of the intruders depicted in the mobile phone footage obtained, in that he had tattoos under both ears and at the back of his neck which matched tattoos depicted in the footage.
20. The offender participated in a taped record of interview in which he made some admissions regarding his involvement in the second incident on 31 May 2020. During the interview, police observed small cuts to his left hand.
21. Police executed a search warrant at the offender's residence in Fraser, where they located a grey Toyota Camry that matched that in the mobile phone footage. In the vehicle, they located a black balaclava, dark shoes, and a box of white latex gloves. A forensic examination was conducted of the offender, including the taking of a buccal swab, fingerprints, and photographs of his tattoos.
Victim impact
22. No victim impact statement was provided, but the unavoidable inference is that the residents would have been emotionally impacted by the incidents.
Objective seriousness
First aggravated burglary
23. The offender was “in company” with two co-offenders (not just one). There was a second aggravating feature that was also present—that the co-offenders were armed
with offensive weapons. The offender was implicated by reason of joint commission in
the possession of those weapons.24. The offence was planned; the offenders wore disguise and two were in possession of a hammer and a baseball bat. One of those items was used by a co-offender to commit an act of violence against NS. The act of violence caused injury that required NS to attend hospital.
25. The offenders entered a residence at night, at a time when the residents were likely to be at home and, in fact, four residents were at home.
26. The offender's role was less than that of the co-offenders, one of whom attacked NS.
27. The offender apologised for frightening the resident whom he directly confronted.
Damage property
28. The co-offenders used the bat and hammer to gratuitously damage the unit; the offender was liable only by reason of joint commission. The cost of repair was $5,244.
Second aggravated burglary
29. The offenders returned to the same residence, again at a time when residents were likely to be at home (albeit that it was daytime).
30. Two aggravating features were associated with this burglary. The offender was in company and he and the co-offender were in possession of offensive weapons.
31. On this occasion, three residents were at home. The offenders ransacked NS's room.
32. The offender apologised to KH. The co-offender inflicted a jab to another victim using a baseball bat.
Theft
33. The property that was stolen did not have a high value and the passport was replaceable. This offence is of relatively low objective seriousness.
Subjective features
34. The offender is 24 years old. He has no prior criminal record.
35. He is the younger of two sons. His older brother gave evidence at the sentencing hearing.
36. The offender had a stable and positive childhood within a close-knit family that continues to support him, and family members were present to support him in Court. The offender enjoys a pro-social friendship group.
37. He has been in a relationship for almost 12 months and enjoys the strong support of his partner. Upon his release, the offender may reside with his partner and her family.
38. The offender completed Year 12. He has held labouring jobs and jobs in hospitality. For some months prior to his arrest, he was employed as an apprentice electrician, but because of numeracy and literacy problems that he has, he found that employment to be challenging.
The offender’s brother gave evidence that, when the offender is released from custody,
he will assist the offender to obtain immediate work. The offender would like to work in the electrical industry but wants to undertake work that he finds less stressful than the work of an electrical apprentice in which he was previously engaged.
40. The offender experienced concussions as a result of playing rugby league. The episodes of concussions may have contributed to his neuropsychological picture.
41. The offender has a lifelong history of depression and anxiety. On several occasions, he has attempted suicide. The most recent attempt was made about six months ago.
The offender’s mental health conditions have affected his capacity to socialise and
maintain employment. To date, the offender’s mental health has been managed by his
general practitioner, but he may require the intervention of a specialist.
42. The offender has been a heavy user of benzodiazepines. At the time of the offences, he was heavily intoxicated by benzodiazepines, which he had been accessing illegally, in a misguided attempt to manage his mental health issues. When he was screened before entering the Alexander Maconochie Centre, benzodiazepines were identified. He states that, since his arrest, he has not used drugs illegally.
43. A report by Mr Sutton, a psychologist, identified neuropsychological processing problems of a relatively severe degree. The offender has a mild literacy dyslexia and exceptionally poor ability to comprehend written arithmetic and computational problems. Mr Sutton identified a distinct problem with auditory verbal attentional focus. He thought it possible that the offender was still experiencing withdrawal from the heavy amounts of benzodiazepines that he had been using, impacting on his short-term verbal memory processing. He opined that, although the offender's problems are unlikely to have determined his actions of May 2020, they are very likely linked to poor impulse control and emotional and perceptual dysregulation.
44. The offender has total debts of $10,000 to $20,000. His abuse of substances cost him about $300 per week, impacting on his ability to meet other expenses. He told the author of the pre-sentence report that financial pressure was a significant factor in his decision to commit the offences.
45. The author of the pre-sentence report stated that the offender had shown limited insight into the impact of his behaviour on the victims, but that he had acknowledged the wrongfulness of his conduct. He had said that he did not remember the offences because he had been significantly affected by substances at the time of the offences.
46. Given the offender's neuropsychological issues, I do not place a great deal of weight on the observation that the offender showed limited insight into the impact of his conduct.
47. In custody, the offender has engaged with the religious community, attending a weekly religious gathering where inmates support each other through their faith.
48. The offender has a longstanding interest in physical fitness, which he has maintained while in custody by way of undertaking regular exercise. He has also participated in positive activities, including drawing and cooking for the cohabitants of the prison cottage in which he resides.
49. He has been assessed as suitable for an intensive correction order with medium to low level of intervention by ACT Corrective Services but is not suitable for community service work due to his mental health and substance abuse problems.
Other sentencing considerations
50. Relevant sentencing purposes include general deterrence, accountability, denunciation, and recognition of harm to the victims. Given the offender's relative youth, lack of prior criminal record and the presence of other factors supporting rehabilitation (supportive and pro-social family and friends, and willingness to engage with treatment for mental health and substance abuse), rehabilitation is a very important sentencing consideration.
51. Having regard to the objective seriousness of the offences, I am satisfied that the only appropriate sentences are sentences of imprisonment.
52. The real issue is the way in which those sentences should be served, particularly given the fact that the offender has already served a significant period of full-time imprisonment, which may go at least part of the way to addressing sentencing purposes such as general deterrence and punishment.
Comparable cases
53. While sentencing statistics must be approached cautiously, I note that, for the period to February 2019 (that is, a period that is out of date by almost two years), offences of
aggravated burglary often attracted a sentence of between 18 months’ and three years
six months' imprisonment. Sentences for theft were often in the range of six to 18 months' imprisonment, and sentences for damaging property were often in the range of six to 12 months' imprisonment.
Proceedings on 20 November 2020
54. The offender's circumstances may make him an excellent candidate for supported rehabilitation through the Drug and Alcohol Sentencing List.
55. I indicate the following notional sentences, which will be revisited after the offender has been assessed by the Drug and Alcohol Sentencing List team.
(a) Count 1: Aggravated burglary—18 months’ imprisonment (reduced by 25 per cent from two years' imprisonment), from 19 June 2020 to 18 December 2021.
(b) Count 2: Recklessly damage property—three months’ imprisonment (reduced by 25 per cent from four months' imprisonment), from 5 June 2020 to 4
September 2020.(c) Count 3: Aggravated burglary—22 months’ imprisonment (reduced by 25 per cent from two years and six months’ imprisonment), from 19 March 2021 to 18 January 2023.
(d) Count 4: Theft—four months’ imprisonment (reduced by 25 per cent from six months' imprisonment), from 5 October 2022 to 4 February 2023.
56. The total sentence would be two years and eight months' imprisonment.
57. I order that the offender undergo eligibility and suitability assessments for a drug and alcohol treatment order.
58. The offender is granted bail on the following conditions:
(a) To reside at (an address in Moncrieff); (b) Not to leave the residence between 9 PM and 6 AM; (c) To report to ACT Health by 4 PM on 20 November 2020; (d) To report to ACT Community Corrections by 4 PM on 20 November 2020; (e)
Not to consume alcohol or drugs unless prescribed by his regular medical practitioner;
(f) To report to Gungahlin Police Station each Saturday between 2 PM and 6 PM; (g) Not to contact NS, KH, FH or LC directly or indirectly; and (h) Not to enter the suburb of Harrison.
Proceedings on 21 December 2020
59. The offender has been assessed as suitable for a drug and alcohol treatment order.
60. I am satisfied of the matters in s 12A of the Sentencing Act and I consider it appropriate to make a drug and alcohol treatment order. I will impose the indicated sentences with two alterations.
61. First, because of the one month that the offender has spent on bail, the sentences should start one month later and finish one month later than indicated.
62. Second, under the statutory provisions, it may not be possible to commence a sentence and backdate it where a drug and alcohol treatment order is to be imposed. That means that, rather than backdating sentences, they need to start from 21 December 2020.
Sentence
63. I impose the following sentences.
(a) Count 1: Aggravated burglary—12 months and 29 days’ imprisonment, from 21 December 2020 to 18 January 2022.
(b) Count 2: Recklessly damage property—three months’ imprisonment, from 5 June 2020 to 4 September 2020.
(c) Count 3: Aggravated burglary—22 months’ imprisonment, from 19 April 2021 to 18 February 2023.
(d) Count 4: Theft—four months’ imprisonment, from 5 November 2022 to 4 March 2023.
64. I impose a drug and alcohol treatment order pursuant to s 12A of the Sentencing Act. I fully suspend the sentences on Counts 1, 3 and 4 on the condition that the offender agrees to complete a treatment program.
65. I note that the primary offence is Count 1 and that the order is extended to Counts 3 and 4 as associated offences.
66. In addition to the core conditions, the offender is to comply with such treatment program conditions as are set by the Drug and Alcohol Sentencing List judge from time to time.
67. The treatment and supervision part of the order is for a period of 15 months, from 21 December 2020 to 20 March 2022.
68. I impose a good behaviour order commencing the day after the treatment and supervision part of the order ends and ending on 4 March 2023. The good behaviour order is subject to the condition that the offender accepts the supervision of Community Corrections for such period as it deems necessary.
69. Pursuant to s 19(3) of the Sentencing Act, I make a reparation order requiring the offender to make reparation to NS by way of payment of money in the sum of $5,244.
I certify that the preceding sixty-nine [69] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.
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