R v Sikounnabouth
[2018] ACTSC 296
•26 October 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Sikounnabouth |
Citation: | [2018] ACTSC 296 |
Hearing Date: | 29 August 2018 |
DecisionDate: | 26 October 2018 |
Before: | Loukas-Karlsson J |
Decision: | See [44]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – burglary – theft – custodial sentence – offences committed whilst on conditional liberty. |
Legislation Cited: | Criminal Code 2002 (ACT) ss 308, 311 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33 |
Cases Cited: | Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Zdravkovic v The Queen [2016] ACTCA |
Parties: | The Queen (Crown) Phouthakone Sikounnabouth (Offender) |
Representation: | Counsel Mr M Howe (Crown) Mr J Sabharwal (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal on London (Offender) | |
File Numbers: | SCC 32 of 2018 |
LOUKAS-KARLSSON J
Introduction
On 25 May 2018, Phouthakone Sikounnabouth (the offender) pleaded guilty to an offence of burglary with intent to commit theft of any property in the building per section 311 of the Criminal Code 2002 (ACT), and an offence of theft per section 308 of the Criminal Code 2002 (ACT).
The maximum penalty for an offence of burglary is 14 years imprisonment, a fine of $210,000, or both. The maximum penalty for an offence of theft is 10 years imprisonment, a fine of $150,000, or both.
Agreed Facts
The agreed facts are set out in the Crown Tender Bundle, which forms Exhibit 1. The facts in summary follow.
At about 2:45pm on 28 June 2017, the victim secured his house in Nicholls, before leaving in his car to pick up his children from school.
At some time between 2:45pm and 3:05pm the offender arrived at the house in a black VT Commodore and parked on the grass verge next door. The offender went to the back of the house and forced entry via a rear glass door. As a result the locking mechanism and metal frame were damaged.
At about 3:05pm, the victim returned with his children. He noticed the black Commodore, and that the car did not have any registration plates and all four windows were down.
The victim parked to the side of the garage, opened the roller door, and entered the house through an internal door. Once inside, the victim’s children told him there were a number of items scattered throughout the front foyer. The victim approached and saw the front door was wide open. At about this time, the victim heard a car outside and after going down the driveway noticed the black car previously parked outside was gone.
The victim contacted police. Whilst awaiting their arrival, the victim scanned his residence and found items scattered throughout the house and a number of items missing. The items taken included money and jewellery, and are particularised on count 2 of the indictment to which the offender has pleaded guilty.
AFP forensics officers attended the residence and assessed numerous items, including glass coffee jars in the study from which a substantial amount of money had been taken. A number of fingerprints were developed from the jars and forensic analysis later confirmed that four of the fingerprints – located on two separate jars – belonged to the offender.
Objective Seriousness
10. Counsel for the offender conceded that the offence was a brazen burglary given the daylight hours, and submitted that the offence would be in the mid-range.
11. The prosecution submitted that the burglary was of a residential premises, which is ordinarily treated more seriously than a burglary of a commercial premises. The prosecution submitted that the entry into the house was forceful and that damage was sustained as a result. Further, the prosecution submitted that there was a significant monetary value to the property that was stolen, including $27,000 of cash, various valuable pieces of technology and a substantial amount of jewellery. The non-cash items stolen had not been quantified but it was submitted that these objects would have been of significant value, and that these were items that “money or compensation or an insurance payout simply can never replace”, including an engagement ring and a wedding band. Finally, it was submitted that there has been no attempt to compensate the victim. The prosecution agreed that the burglary fell into the mid-range, but submitted that the theft was objectively serious given the items taken.
12. I accept the submissions of both the prosecution and the offender and find the offence to be mid-range.
Subjective Circumstances
13. A Court Duty Report and CADAS report were prepared for the sentence hearing. The offender was 21 years old at the time of the offences. He is now 23 years old. The offender was born in Laos and migrated to Australia in 2007 with his family. The offender resides in the ACT with his parents, and described having a good relationship with his parents and three siblings. He reported that he completed Year 11 and has worked in his mother’s restaurant since leaving school, as well as having part time employment as a barber.
14. The CADAS report highlights that the offender first began using methamphetamine at 18 years old, and reported daily use from the beginning of 2017, however the offender was unable to remember the amount used per day. The CADAS report assessed the offender as having a dependence on methamphetamine. The report also notes that the offender has socially used Cocaine and Ecstasy since the age of 18, and that the offender used Cannabis “a little bit” at school. The report also notes the offender’s consumption of alcohol in a “binge fashion”. The offender reported to the author that he had not seen his alcohol intake as ever being a problem. The offender reported attending Directions ACT in the past, but could not remember the details of this intervention. The offender was unable to identify a precipitating factor contributing to his drug use. He reported a supportive upbringing free from abuse, trauma and neglect.
15. The offender is currently undertaking the Solaris Therapeutic program in the Alexander Maconochie Centre (AMC). The CADAS report notes that this is the most suitable treatment plan for the offender at this stage. The offender is considering engaging in the Karralika residential program when back in the community. The offender has abstained from illicit substances since entering custody.
Forensic Psychology Report
A psychology report was prepared in relation to the offender under the hand of Ms Morris, forensic psychologist. The offender was assessed in relation to his psychological condition as having a severe stimulant use disorder relating to amphetamine-type substance that was in early remission in a controlled environment. The author stated that the offender was unable to give reasons or express remorse for his life choices, largely as a result of his passivity. The author assessed the offender as at low to moderate risk of recidivism because of his lack of experience living as an adult in society without substance use. The offender reports abstaining from methamphetamine use since entering custody in November 2017 and reports that he does not “miss it now”.
17. The offender stated that at the time of the offence, he did not know what happened because he was “high”. He had no recollection of being in the victim’s house, or of having additional money. The offender believes that his family is “disappointed in him”. He would like to return to his family upon release and “try to give as much support as I can [to them] and that will give me time to support myself too”. His mother has visited him every fortnight and his father and siblings have been to visit him at the AMC. The offender expressed to the author of the report that he aims to go back to work in his family’s restaurant upon release, and to buy his own barbershop.
18. When asked if he would say anything to the victim if he saw him, the offender would have said “that I’m sorry for what I did”. When asked about whose opinion he valued most, the offender said “dad; he works hard, loves all his kids, and always provides for them”. The offender stated that he was “pretty proud of being clean of substances”. He has reportedly engaged well with a custodial substance use recovery program and has produced clean urinalyses.
19. The report concludes that the offender will likely require strong and direct support from his family to ensure he remains active and engaged with his life goals to avoid substance use, and that with such measures in place, the author of the report repeated that the offender would be considered low to moderate risk of reoffending in the future.
Criminal History
20. The offender has a number of previous convictions in the ACT, including failing to appear, possessing drugs of dependence, driving offences, and two assaults occasioning actual bodily harm. The offender also has a number of convictions for driving offences in New South Wales. The offender does not have a history of dishonesty offences.
21. At the time of the offences, the offender was on two good behaviour orders, each with a suspended sentence attached. Those sentences are as follows:
(a)CC 2015/8797 (assault occasioning actual bodily harm) – on 28 January 2016 the offender was convicted and sentenced to three months imprisonment fully suspended upon entering into a good behaviour order for two years; and
(b)CC 2015/6244 (assault occasioning actual bodily harm) – on 28 January 2016 the offender was convicted and sentenced to two months imprisonment suspended after serving one month upon entering into a good behaviour order for two years.
22. The offender committed other offences in addition to those currently before the court during this period of conditional liberty. As a result, the offender was resentenced and the terms of imprisonment previously suspended were imposed. Those matters have been finalised and the Court is not required to engage in any resentencing.
23. The fact that the offender was on conditional liberty at the time of the offence is an aggravating factor on sentence. I take the conditional liberty into account as an aggravating factor. I note, however, that conditional liberty is not relevant to assessing the objective seriousness of an offence: see R v Bandy [2018] ACTSC 261 at [27] – [30]; Veen v The Queen(No 2) (1988) 164 CLR 465 at 472; Muldrock v The Queen [2011] HCA 39; 244 CLR 120; Smith v The Queen [2011] NSWCCA 163.
Plea of Guilty
24. The offender pleaded guilty on 25 May 2018 to the charges now before the ACT Supreme Court. The plea was entered after the matter had been committed for trial on 1 March 2018.
25. Counsel for the offender conceded that it was not an early plea of guilty, and submitted that the percentage discount would be in the range of 15 – 20%. I will allow a discount of approximately 15%.
Time in Custody
26. The offender has spent 159 days between 22 May 2018 and 26 October 2018 in custody solely attributable to these offences.
Cases
27. The prosecution referred to the following cases in their submissions.
28. In R v Parker [2018] ACTSC 55, the offender pleaded guilty to 16 offences, including 5 counts of burglary, one count of joint commission burglary, one count of joint commission theft, seven counts of theft, one count of robbery and one count of property damage. The offences took place over a number of weeks between 9 February and 6 March 2017. The offender was 34 years old and identified as Aboriginal. The offender also had a history of poly-substance use and mental health issues, and had a limited criminal history. The offender was sentenced to a total sentence of five years, nine months and eight days of imprisonment, with a non-parole period of three years.
29. In R v Coogan [2017] ACTSC 238, the offender pleaded guilty to six offences, including one offence of burglary with intent to steal, two offences of theft, one offence of common assault, one offence of unlawfully confining a person, and one offence of using a carriage service to menace, harass or offend. The offences arose from two separate incidents in 2016, the first of which related to the offence of burglary and the two offences of theft. The offender broke into a house, which he then ransacked and stole property belonging to the occupants valued around $25,000 in total. The offender was a 31 year old male and had an extensive criminal history and had a history of drug abuse. The offender was sentenced to a total of two years and seven months of imprisonment, including specific sentences of 2 years of imprisonment for the offence of burglary (reduced to 18 months of imprisonment on account of the early plea of guilty), and two concurrent sentences of 16 months and 8 months of imprisonment for the two offences of theft (reduced to 12 months and 6 months of imprisonment respectively on account of the early plea of guilty). The sentence for the offence of burglary was wholly concurrent with the sentences for the theft offences. The non-parole period set was 15 months, which the sentencing judge acknowledged was “relatively low” given the offender’s criminal history. The low non-parole period recognised the offender’s wish to engage in “residential rehabilitation” after his release.
30. In R v Booth [2016] ACTSC 365, the offender pleaded guilty to one offence of burglary, and one offence of theft. The total value of the theft was $60,620. The stolen property was varied, ranging from a safe, food and wine, jewellery, a medal, and three atlases each of significant value. The sentencing judge considered the offences to be of medium objective severity. The offender was a 40 year old man of aboriginal heritage, who had a “very disturbed and unfortunate upbringing”. The offender had a significant criminal record and a history of substance abuse issues. The offender was sentenced to concurrent sentences of 16 months of imprisonment for the charge of theft (reduced to 11 months and 30 days on account of the early plea of guilty), and 12 months of imprisonment for the count of burglary (reduced to 9 months on account of the early plea of guilty). There was no non-parole period set.
Statutory and Other Considerations
31. In sentencing the offender, the Court is required to take into account those matters under s 33 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) that are known and relevant. I have referred to the relevant matters above.
32. The court sentences in the context of the objects of the Sentencing Act in s 6, and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, and recognition of harm to the victim are important sentencing considerations. Rehabilitation is also an important consideration having regard to the offender’s youth.
33. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, an alternative to full-time custody is not appropriate in my view.
34. As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
35. In R v Lockwood [2018] ACTSC 288 at [51], I noted the following with regard to the offence of burglary:
There is a “significant range of available sentences” for burglary, though they are “generally within the range of imprisonment for from one year to two years and six months”: Fusimalohi v The Queen [2012] ACTCA 49 at [51]; Heard v The Queen [2015] ACTCA 6 at [27]-[32]; Millard v The Queen [2016] ACTCA 14 at [44]-[45].
36. Drug addiction is a relevant circumstance for the Court to consider but is not, of itself, a mitigating factor: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [193]-[203], [273] and [347]; R v Martin [2017] VSCA 291; 20 VR 14 at [19]-[30].
37. When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64] (Zdravkovic).
38. The real question is whether the total sentence is “just and appropriate” to reflect the total criminality: Mill v The Queen (1988) 166 CLR 59 (Mill); R v Meyboom [2012] ACTCA 48 at [66]; Zdravkovic at [71].
Sentence
39. It must be recognised by the Court that the burglary has had a significant impact upon the victim and his family. Both the short and long-term consequences of being the victim of such a crime must be acknowledged. Many of the items taken cannot be replaced. Burglary and theft, in this context, are a violation of the sanctity of the home. It must also be recognised that no sentence that the court imposes can rectify the consequences of what has occurred to the victim in the commission of the offence by the offender.
40. Both parties accept that the offender must receive a sentence of imprisonment to be served by way of full-time imprisonment.
41. In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offence, subjective matters and totality.
42. The appropriate sentence for the offence of burglary (CC17/12807) is 24 months of imprisonment, reduced to 20 months of imprisonment on account of the discount for the plea of guilty. The appropriate sentence for the offence of theft (CC17/13131) is (24) months of imprisonment, reduced to 20 months of imprisonment on account of discount for the plea of guilty.
43. Further, taking into account the fact that these offences formed part of the one episode, the sentences will be concurrent as I acknowledge the need, where the offences are part of one episode, to avoid the double counting of punishment and take this into account.
Order
I make the following orders:
(a)In respect of the offence of burglary (CC17/12807), the offender is sentenced to 20 months of imprisonment, commencing 22 May 2018 and ending 21 January 2020.
(b)In respect of the offence of theft (CC17/13131), the offender is sentenced to 20 months of imprisonment, commencing 22 May 2018 and ending 21 January 2020.
(c)I set a non-parole period of 14 months, commencing 22 May 2018 and ending 21 July 2019.
| I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson. Associate: Date: 26 October 2018 |
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