R v Slattery
[2021] ACTSC 154
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Slattery |
Citation: | [2021] ACTSC 154 |
Hearing Dates: | 22 January 2021, 5 February 2021 |
DecisionDate: | 9 February 2021 |
Before: | Refshauge AJ |
Decision: |
|
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – burglary – dishonestly drive without owner’s consent – obtain property by deception – theft – possess drug of dependence – drive whilst disqualified – consideration of additional offences taken into account – Drug and Alcohol Treatment Order – Rehabilitation |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 12A(5), 27, 33(1)(za), 33(1)(t), 35, 59(3), 63(1), 63(2), 80W, 80Y, 85, 116(1)(b), 118 Crimes (Sentencing Procedures) Act 1999 (NSW) Supreme Court Act 1933 (ACT) |
Cases Cited: | Barbaro v The Queen [2014] ACTCA 2; 253 CLR 58 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Wong v The Queen [2001] HCA 64; 207 CLR 584 |
Parties: | The Queen ( Crown) Joshua William Slattery ( Offender) |
Representation: | Counsel S McFarland ( Crown) M Jones ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) | |
File Numbers: | SCC 124 of 2020 SCC 125 of 2020 |
REFSHAUGE AJ
Introduction
As I explained in Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 at 299-300; [1]-[7], the current complexity of sentencing with statutory requirements has, over the years, increased the difficulty of the task of a sentencing Court, though sentencing is always difficult for a Judge. Nevertheless, as I also pointed out there, that complexity has still left room for common law principles and, indeed, the overarching obligations of the Judge is to take all of the relevant factors into consideration and to use the approach mandated by the High Court in Wong v The Queen [2001] HCA 64; 207 CLR 584 at 611; [75] of an instinctive synthesis to craft the appropriate sentence.
Combined with the well-known principle that there is no one correct sentence for the particular crime committed by the particular offender (Henry v The Queen [2019] ACTCA 5 at [31]), this produces a reliance on the judicial sentencer; his or her own subjective assessment of all the relevant circumstances. Pure subjectivity is avoided by various requirements that include having particular regard to the legislative maximum penalties (Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 372; [30]) to ensure that the sentence is proportionate to the gravity of the offence (Veen v The Queen (No 2) (1988) 164 CLR 465 at 480; [30]), and the statutory mandated requirement to have regard to sentencing practice (s 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act)), which exposes the sentencer to the “collective wisdom of the judges” (R v Oliver (1980) 7 A Crim R 174 at 177) to use as a yardstick and to give understanding of the range of appropriate sentences (Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at 73; [41], R v Kilic [2016] HCA 48; 259 CLR 256 at [22]), as explained in R v Mathews [2020] ACTSC 364 at [44]-[48].
In the context of the Drug and Alcohol Sentencing List, this raises another issue of importance for the Sentencing Act, which makes provision for the welcome reform for sentencing of persons who are dependent on illicit drugs or alcohol, but only if the appropriate sentence is between one and four years imprisonment and, under s 12A(5) of the Sentencing Act, the Court is required not to “impose a lesser sentence of imprisonment only to allow the court to make a treatment order”. Hence, my practice has been to separate the imposition of sentence from the making of a Drug and Alcohol Treatment Order (a Treatment Order) and complete that sentencing prior to the making of the Treatment Order, so as to make clear to both parties that the latter is a consequence of the former and that the former has not been improperly influenced by the latter: see, for example, R v Peadon (No 1) [2020] ACTSC 343 at [18]-[63] and [64]-[68].
Thus, I have to sentence Joshua William Slattery for 20 offences committed by him between 27 August and 13 September 2019. He has also asked me to take into account a further 18 offences also committed over that time. The offences for which sentences are to be imposed are the following: nine offences of burglary, five offences of dishonestly driving a motor vehicle without the owner's consent, two offences of obtaining property by deception, one offence of theft, two offences of driving whilst disqualified and one offence of possessing a drug of dependence, namely methylamphetamine. The further offences which I have been asked to take into account are one offence of theft, nine offences of minor theft, three offences of property damage, two offences of driving a motor vehicle with an affixed number plate issued to another vehicle, one offence of failing to stop when directed by police, one offence of possessing a knife without reasonable excuse and one offence of trespass.
No oral evidence was adduced.
I had, however, in the Crown Sentencing Tender Bundle, a Statement of Facts, Mr Slattery's Criminal History, a Drug and Alcohol List Suitability Assessment Report of ACT Corrective Services, dated 15 January 2021, and a Drug and Alcohol Treatment Assessment Report of Canberra Health Alcohol and Drug Services, also dated 15 January 2021, those reports being Drug and Alcohol Treatment Assessments (Suitability Assessments) under s 46J of the Sentencing Act. I also had seven letters from the Karralika Therapeutic Community Program, dated between 20 January 2020 and 8 January 2021, which confirm Mr Slattery's involvement in the Karralika Therapeutic Community’s “REVERSED” program, the fee receipt for that program, five certificates of completion of various programs within the Karralika Therapeutic Community, a letter, dated 8 January 2021, of completion of a program at Canberra Recovery Services, a character reference from a co-participant in one of the Karralika Therapeutic Community programs and the resident's re-entry manual of the Karralika Therapeutic Community. All these documents were tendered without objection and without challenge to their contents.
I have read them all and, from them, I make the following findings.
The Facts
In brief summary, Mr Slattery, between 27 August and 13 September 2019, entered nine residences in Canberra, took a number of items from them and, on occasion, drove away in motor vehicles belonging to the occupants of the premises. Among the items stolen were credit cards, which Mr Slattery then used to purchase various items. He was arrested on 13 September 2019 and, on search, was found in possession of a machete and some bags of methylamphetamine, as well as a number of the stolen items.
The first offence occurred when Mr Slattery took a 2007 grey Porsche 9114S from the residence of its owner a little after midnight on 27 August 2019. The vehicle was later located in Downer, ACT, on 4 September 2019 and swabs of the steering wheel returned a positive DNA match for Mr Slattery. There was no evidence of how far Mr Slattery had driven the vehicle, nor to what use he had put it. There was no evidence to suggest that the vehicle had been damaged. There was no evidence as to the value of the vehicle. These were the facts that constituted the first offence of dishonestly driving a motor vehicle without the owner's consent.
On 31 August 2019, Mr Slattery entered a house in Hackett at about 10:00 am. The owner was present, saw him and screamed. He grabbed some car and house keys from the kitchen bench and left. The keys were said to be worth $500. While the owner was calling the police, Mr Slattery used the car keys to take a Volkswagen Golf motor vehicle from the premises and drove it away, first to the underground carpark of an apartment building in Watson and then to a service station in Lyneham. Police later located the car in a unit complex in O'Connor on 3 September 2019.
Again, apart from the driving referred to, there was no evidence as to how far the Volkswagen Golf motor vehicle had been driven. Further, there was no evidence to suggest that it had been damaged and there was no evidence of the value of the car. These events were the basis for the charges of burglary, dishonestly driving a motor vehicle without the owner's consent and one of the additional charges of minor theft.
About an hour and a half after this burglary on 31 August 2019, Mr Slattery entered a residence in Watson. The owner was present, then in the shower, and thought it was his partner whom he heard in the house. Mr Slattery then stole the owner's wallet containing a bank credit card. He used it a short time later to make purchases at two service stations, one in Kaleen, worth $115.99, and one in Watson, worth $75.18. He was seen on CCTV footage at the Kaleen service station driving the Volkswagen Golf. It seems an inescapable conclusion that Mr Slattery travelled to the residence in Watson and then to the other service stations in the stolen Volkswagen Golf. These were the facts that led to Mr Slattery being charged with burglary and with obtaining property by deception. The two purchases were included in the one count of obtaining property by deception.
As noted above (at [10]), on 2 September 2019, Mr Slattery entered the underground carpark of an apartment complex in Watson as a trespasser. It appears no one was in the carpark at the time, though, occupants were in the apartments. He parked the Volkswagen Golf in front of a Honda Accord vehicle, which had been parked there by the owner, who was a resident in the complex. He smashed the rear driver's side window and rear quarter panel window of the Honda Accord vehicle and took some anti-inflammatory medication and clothing from the central console, valued at $100. The damage activated the car alarm and police were alerted. Mr Slattery went back to the Volkswagen Golf and drove away before police arrived. These were the circumstances that founded a charge of burglary and two additional charges of property damage and minor theft.
Sometime between 31 August and 2 September 2019, Mr Slattery entered the garage of an apartment complex in O'Connor. There is no evidence that there were occupants in the garage. It seems extremely likely that there were occupants in the apartments. He accessed the secure garage there and took some items belonging to a resident of the apartment complex, including the original packaging for several watches, an expired government passport, paperwork of the owner, and some university training material. No value was given to the property, but, at least, it would seem to have had sentimental value and may have been difficult to replace.
On 2 September 2019, Mr Slattery entered a garage attached to a residence in Turner and, after taking the keys from a bag left on the lounge in the garage, took a 2016 208 Peugeot parked there. He drove to a service station in Belconnen and purchased some items there.
Early in the morning of the next day, he drove the Peugeot car to a service station in Lyneham and purchased some further items. Later, he drove the Peugeot car to Watson, but it sustained a flat tyre and he abandoned it on the side of the road, placed the keys on the roof and left quickly. Apart from the flat tyre, there was no evidence of any damage to the vehicle, nor any evidence of its value. At the time of the driving, Mr Slattery was disqualified from obtaining or holding a driver licence until 8 September 2020. The described facts constituted the offences of burglary, dishonestly driving a motor vehicle without the owner's consent and the additional offences of driving whilst disqualified.
Sometime on or prior to 11 September 2019, Mr Slattery accessed a Toyota Yaris motor vehicle at Dickson and, without, on the evidence, apparently damaging the car, took a Canberra Institute of Technology pass and a USB from the centre console and glovebox, with an indeterminate monetary value, but obviously of significant inconvenience. This formed the foundation for an additional charge of minor theft.
Later on 11 September 2019, Mr Slattery entered a residence in Dickson and took the keys of a Holden Commodore car parked in the garage. He then went to the garage. The occupants were there and heard a noise. The car's owner came out because of the noise and confronted Mr Slattery, who, at that stage, was getting into the driver's seat of the Holden Commodore in the garage. They got into a tug of war with the car door, but Mr Slattery managed to slam it shut and drove away, initially getting stuck on some bricks in the driveway, but eventually managing to drive from the residence, hitting the letterbox while doing so. In the Holden vehicle was the handbag of one of the occupants. It contained a wallet, reading glasses, work pass and other personal items, of which there was no evidence of their monetary value, but the loss of which would have caused much inconvenience. The Holden Commodore was later located; there was no evidence of any damage caused to it. These facts were the basis for the offences of burglary, dishonestly driving a motor vehicle without the owner's consent and the additional charges of minor theft (the handbag) and damaging property (the letterbox). It was noted that the motor vehicle was also used to effect other offences.
Very early the next morning, Mr Slattery drove the Holden Commodore to the underground carpark of an apartment complex in Wright. By that time, he had changed the numberplates on the Holden Commodore to those of another vehicle. He left the car and looked through a number of the vehicles parked there before entering a Mercedes C200 Kompressor, which he then drove out of the carpark. The Mercedes was recovered later that day, as noted below (at [22]). These were the events which led to the counts of burglary, dishonestly driving a motor vehicle without the owner's consent and the additional offence of using a vehicle with numberplates for another vehicle.
He then drove the Mercedes motor vehicle to a residence at Kaleen. He entered the property, but does not appear to have entered the residence, though he took a pair of shoes valued at $45. This led to the additional charges of trespass and minor theft being preferred.
At about 9.00am on 12 September 2019, Mr Slattery drove to premises in Aranda in the Mercedes motor vehicle. He asked an occupant of the residence if he owned it or the house next of that. The occupant said that he did not and then left. Mr Slattery then opened the carport and used a rock to smash the rear sliding door of the house. I was not told the cost of repairing the smashed window. He took two MacBooks, an Apple watch, a dress watch, an Audi A4 car key, a house key, a leather care kit, two guitars, a Ryobi drill, a Nike gym bag, and various bottles of alcohol. I did not have evidence of the value of these items, but it would appear to have been likely more than, at least, $2000 as, unlike the other thefts, it was not charged as a minor theft, though it is not necessarily required: Schwalm v The Queen [2012] ACTCA 43 at [13]. He also removed the registration plates for the two cars parked there. These events constituted the counts of burglary and theft.
Mr Slattery then drove the Mercedes motor vehicle to an address in Wright where the Holden Commodore had been parked. He left the Mercedes parked there, where it was later recovered by police. He then got into the Holden Commodore and drove away.
Later that afternoon, he was driving the vehicle in Downer. At that time the vehicle bore numberplates for another vehicle on the front and no numberplates were displayed at the back of the vehicle. Police on patrol noticed the vehicle and activated the siren and emergency lights affixed to their vehicle and pursued the Holden Commodore to Northbourne Avenue, where they discontinued the pursuit. These circumstances founded the additional charges of using a motor vehicle with numberplates for another vehicle and failing to stop when directed by police.
That evening, Mr Slattery entered an underground carpark to another apartment complex in Griffith. He looked through various vehicles parked there and removed the number plates from a Mazda sedan. He then picked up a large nitrogen canister and smashed the front passenger window of a Volkswagen Amarok motor vehicle and took a wallet containing a Mastercard, access cards for the owner's workplace, an Adidas gym bag and a Motorcharge fuel card of an unspecified value. Again, the loss of some items would cause significant inconvenience and the loss of a credit card would also expose the owner to unauthorised transactions, for which his bank would suffer loss. Indeed, Mr Slattery then used the Mastercard to purchase drinks, food, a lighter and cigarettes at a service station in Belconnen and a convenience in Giralang, still in possession of the Holden Commodore vehicle. I was not told the cost of repairing the smashed window. These were the basis for the offences of dishonestly obtaining property by deception and the additional offences of two counts of minor theft and one count of damaging property.
Mr Slattery was arrested mid-morning on 13 September 2019 and a search revealed a machete in a bag he had with him and also located three clip-seal bags of methylamphetamine. These led to the additional charges of possessing a knife without reasonable excuse and possessing a drug of dependence. His driving, other than as already charged, led to a further charge of driving whilst disqualified from holding or obtaining a driver licence as a repeat offender.
The Proceedings
As noted above (at [8] and [25]), Mr Slattery was arrested on 13 September 2019 and appeared in Court the next day. The proceedings were adjourned and Mr Slattery was remanded in custody. On 27 September 2019, he entered pleas of not guilty to all the charges then before the Court and the proceedings were listed for further hearing on 8 November 2019.
On 8 November 2019, further charges were laid and the proceedings were adjourned for a week. On 15 November 2019, Mr Slattery pleaded not guilty to those additional charges, but was released on bail from 19 November 2019 to attend the Karralika Therapeutic Community’s Karuna program, an eight-week transition program, before entering the adult residential drug rehabilitation program at the facility.
The proceedings were mentioned in Court on 7 February 2020 and adjourned to 6 March 2020 when the Court was advised that negotiations were occurring between the prosecution and Mr Slattery, but that they had not been successful at that stage.
Finally, on 9 June 2020, the indictable charges were committed to the Supreme Court for trial and the other charges were transferred under s 90B of the Magistrates Court Act 1930 (ACT) to be dealt with under Part 8 of the Supreme Court Act 1933 (ACT).
A Criminal Case Conference was convened on 28 October 2020 and the proceedings were resolved, with Mr Slattery agreeing to plead guilty to an indictment in the present terms, which was presented on 13 November 2020, at which time he adhered to those pleas by formally entering them. He also pleaded guilty to three transferred charges. The other 18 offences were then included in a list of additional offences under Part 4.4 of the Sentencing Act.
The Offences
The sentencing task must start with the consideration of the maximum penalties, which provide a yardstick of the relative seriousness of the offences (Markarian v The Queen). Burglary is an offence against s 311(1) of the Criminal Code 2002 (ACT) and renders the offender liable to a maximum penalty of 14 years imprisonment, or a fine of $210,000, or both.
This offence, as with most offences, can be committed in a variety of ways and the Courts have identified, over the years, a number of circumstances in the commission of such an offence that aggravates or mitigates the seriousness of the offence. Thus, the guideline judgment, under Division 4 of the Crimes (Sentencing Procedures) Act 1999 (NSW), of the New South Wales Court of Criminal Appeal in R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327 at 337; [48], sets out six factors which aggravate the offence of burglary. I note that there are differences between these offences because the New South Wales situation is not in precisely the same terms (R v Nono [2014] ACTSC 259 at [20]). In particular, for instance, the New South Wales offence, unlike the ACT one, includes theft as an element (R v Taylor [2015] ACTSC 122 at [25]). The factors set out in R v Ponfield at [48] have, however, been accepted as relevant in this Territory (Dickson v Johnston & Ors [2013] ACTSC 94 at [142]; R v White [2014] ACTSC 158 at [33]; Smith v O'Dell [2016] ACTSC 176 at [34]). In this case, of course, there were nine burglaries, each of which were somewhat different, though a number were generally similar in the way they were committed and the type of items stolen.
All the burglaries were at residential premises, which is more serious than, for example, at commercial premises (Simonds v The Queen [2013] ACTCA 13 at [54]), though four were in the underground carparks of apartment complexes, which are not strictly residences, but which are not commercial premises and are places where occupants are likely to have access at all times of the day and night (R v Forrest (No 2) [2017] ACTSC 83 at [77]). They do not, however, involve an actual invasion of the residence (R v Roux (No 2) [2015] ACTSC 361 at [74]).
Of the five burglaries which were at houses, four of them occurred while the occupants were present and in two cases there was a confrontation with one of the occupants, though there was no physical contact. They were, in that sense, brazen burglaries to be committed while occupants were present and would create further feelings of insecurity for those persons, especially where there was a confrontation. People should feel safe in their homes. Many victims of burglaries feel violated. These are matters of aggravation (R v Horne [2017] ACTSC 36 at [18]-[22]).
Nevertheless, except in one case, no damage was caused on entry and, for the most part, Mr Slattery entered by open doors. When disturbed, though, in one case, he did persist in taking a motor vehicle, despite the resident's resistance. In none of these cases was there any evidence of premeditation or planning, though it is not clear how Mr Slattery identified the targets of his burglary. These cases were not particularly sophisticated. In three cases there was some damage; in two cases the damage was, in one case, to a car in an underground carpark and, in the other case, to a glass door to gain access to the premises. These were matters of aggravation also, though charges of damaging property have also been preferred. There was no particular evidence as to what Mr Slattery’s motivation was. Mr Slattery's offending related to his drug use.
Finally, in no case were the thefts of property of particularly high monetary value. Much of the losses would have caused considerable inconvenience to their owners. Of course, in each case, charges of theft, or mostly minor theft, were preferred as well. Inconvenience includes removal of access to work premises, lack of access to credit cards and the inconvenience of having to get new ones, the need to make insurance claims and loss of personal items and the like (R v Forrest (No 2) at [73]-[76]).
Mr Slattery committed a number of theft offences. One requires me to impose a sentence. The others were included in the list of additional offences transferred to this Court. Theft is made an offence by s 308 of the Criminal Code, which provides for a maximum penalty of 10 years imprisonment, or a fine of $160,000, or both.
There are a number of facts that make such an offence more serious. The value of the property stolen is clearly a most important factor. That need not be of purely monetary value, but can encompass sentimental value or the utilitarian value of avoiding the inconvenience suffered by the loss of the items, such as credit cards and work passes (R v John [2017] ACTSC 144 at [44]-[45]).
The offence for which I must impose a sentence involved more property than the other theft and minor theft offences, but there was no evidence of that property’s actual value. I can accept that it was not of a considerable monetary value, but not entirely insignificant, as I have indicated earlier (at [21] and [36]). The property included two guitars, two Macbooks and an Apple watch, which would have been of some reasonably significant value. There was also a drill and some alcohol. The other items might have been valuable, but there was really no evidence that helps me determine that one way or the other.
Section 321 of the Criminal Code criminalises the dishonest obtaining of property by deception and provides for a maximum penalty of 10 years imprisonment, or a fine of $150,000, or both. Such offences commonly involve the dishonest use of someone else's credit card, an offence made easier by the widespread ability to tap a card on a retailer's terminal without the retailer having access to the card or requiring a signature. The value of the property obtained is a key indicator of the seriousness of the offence (Mitchell v The Queen [2006] NSWCCA 72 at [10]). None of the identified factors are relevant to these cases. In each case of the use of the credit card, the amount was relatively small, less than $200, although in one case it was, in effect, a rolled-up plea (as to which, see below at [46]-[47]).
There were five counts of driving a motor vehicle without the owner's consent. That offence is prohibited by s 318(2) of the Criminal Code and attracts a maximum penalty of five years imprisonment, or a fine of $75,000, or both. It is a serious offence, though not as serious as the others (Sampson v De Haan [2016] ACTSC 327 at [43]). The relevant factors were discussed in R v Crawford (No 1) [2020] ACTSC 245 at [38]-[39], where I said:
38.The offence of dishonestly driving a motor vehicle without consent is an offence which has various aspects. Not only does it involve the deprivation of a car from the owner or user which, especially in Canberra, can cause considerable inconvenience, and often significant loss, as it is not infrequently one of the largest purchases of its owner after a residential property, it also can be used to facilitate the commission of other offences because of its mobility and its value as a means of transport of goods (see R v Booth [2017] ACTSC 191 at [11]).
39.It is also relevant to consider the period during which Mr Crawford had the vehicle in his possession. It is, as often happens, not possible to say that Mr Crawford was the person who originally took the vehicle on 18 March 2019, but he certainly had use of it on and between 24 March 2019 and 4 April 2019. The laptop found in it, and its sighting at the University of Canberra, shows that it was used in the commission of at least those burglaries (see R v Eichmann [2019] ACTSC 212 at [23]). Finally, I note that Mr Crawford was the driver and not a passenger. This is seen as a more serious version of the offence (see R v KN [2019] ACTSC 305 at [4]).
In each case it is clear that Mr Slattery took the motor vehicle involved, a matter of seriousness, and was, so far as the evidence shows, the only person who drove it after its theft, which appears to make it more serious than were he merely to have been a passenger (R v Massey (No 1) [2020] ACTSC 256 at [56]). In each case he had use of the vehicle for a relatively short period of time. He had the Porsche for the longest time; it was taken on 27 August 2019 and recovered on 4 September 2019. The shortest time was when he had the Mercedes, which was taken at 12:57am on 12 September 2019 and recovered at 5:30pm on the same day (see R v Massey (No 1) at [57]).
There was no evidence to suggest that any of the cars had been damaged, but, in a number of cases, the motor vehicle was used to commit other offences. That is a matter of aggravation (Williams v Connor [2019] ACTSC 184 at [33]).
Possessing a drug of dependence is an offence against s 169(1) of the Drugs of Dependence Act 1989 (ACT), for which the legislature mandates a maximum penalty of two years imprisonment, or a fine of $8000, or both. In this case, the drug was methylamphetamine, a somewhat more serious drug. The amount involved was .569 of a gram, which was less than a tenth of the trafficable quantity.
Finally, driving whilst disqualified from obtaining or holding a driver licence is contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) and is, as a repeat offender, punishable by a maximum penalty of one years imprisonment, or a fine of $16,000, or both. I have considered that offence in some detail in Cotter v Corvisy at [33]-[35]. Questions such as the purpose of the driving and whether it was associated with other offending are matters of aggravation and both are present here. There is, however, no evidence that Mr Slattery flouted other traffic laws. It does seem to me, too, that this is an example of contumacious driving.
Rolled Up Counts
All but one of the offences of dishonestly driving a motor vehicle without the owner's consent and both of the offences of dishonestly obtaining property by deception are rolled up counts. These have been defined in R v Jones [2004] VSCA 68 at [13] as, “a collection of offences bundled together into a single count”. Thus, for example, Mr Slattery used the stolen credit cards to obtain property from two retail outlets, each of which would have constituted an offence, but are charged in the one count to make the sentencing process more manageable.
I have summarised the approach to be taken to such counts in R v John at [107] as follows:
I have discussed such charges and the appropriate approach to sentencing for them in R v Forrest (No 2). The approach may be summarised as follows:
· for sentencing purposes, the rolled up count is one charge and the sentence may not exceed the maximum penalty for the offence charged;
· nevertheless, the criminality encompassed within the count is greater than were the count to be constituted by only one offence;
· the sentence is not necessarily, and perhaps not usually, the sum of the sentences that would be imposed for the offences comprising the count, though in an appropriate case it may be; and
· the fact that the count is a rolled up count may have a bearing on the application of the relevant principles as to accumulation or concurrency.
Subjective Circumstances
Mr Slattery was born 31 years ago in Canberra, one of six children. He was neither the eldest nor the youngest. His father was a chronic alcoholic and engaged in domestic violence, which Mr Slattery witnessed. His father left the home when Mr Slattery was aged 10 and he and his siblings lived in a domestic violence refuge with his mother. He was left without a male role model and was raised by a single mother in financial hardship.
He attended high school in Canberra but left in Year 9, having been suspended and later expelled for truancy and smoking cannabis. He does not appear to have engaged in any further formal education.
His eldest brother soon succumbed to alcohol dependence and is described as having ‘behaved wildly’. Mr Slattery followed in his brother's footsteps. [Redacted for legal reasons]. He was sentenced to prison first when he was 18 years old. He spent much of his early adult years in prison.
He had a serious relationship with a girlfriend from age 16 and the relationship seems to have had a beneficial effect on him. But, when it was experiencing difficulties, his drug use escalated. He was heartbroken when the relationship ended after 10 years.
He worked as a carpentry apprentice for a while and then as a labourer engaged in fencing and concreting. He also worked in his brother's business, but his work periods tended to last for only six months before his drug use adversely affected his attendance or he was arrested.
His mother died in 2016, while he was in custody, and he was unable to process his grief. He currently has a good relationship with all of his siblings, though his eldest brother still remains in active drug dependency. His father addressed his alcohol dependency and has become sober. The two have reconciled, but his father's health has declined.
Mr Slattery has a long and depressing criminal history. [Redacted for legal reasons]. As an adult, he has been dealt with by the Courts for 65 offences. Although there were a few early offences of violence, his offending has largely been, and is now exclusively, dishonesty offences and traffic offences. He has, however, a history of offending of the type for which he now must be sentenced, having recorded 6 earlier offences of burglary, including an aggravated burglary, 11 earlier offences of theft, the majority of which are minor theft, 10 earlier offences of dishonestly driving a motor vehicle without the owner's consent, 3 earlier offences of damaging property, 2 earlier offences of obtaining property by deception and 9 earlier offences of driving without a licence, in one of the various forms of that breach of traffic regulation. He can be seen as having a disregard for other people's property and houses, a commitment to taking other people's cars and a significant disregard for traffic licensing. His criminal record denies him leniency and the continued commission of similar offences requires a stern response.
As noted above (at [50]), Mr Slattery was introduced to drug use through his eldest brother, who was something of a role model in the absence of his father. He first drank alcohol at the early age of 12 or 13 and, within a couple of years, was drinking three to four days a week to the point of intoxication. Given the home environment he experienced, this was entirely understandable.
The use of alcohol was signalling something of a ‘gateway drug’, reducing his inhibition and leading to the use of other drugs. He commenced using methylamphetamines when he was 21 years old and this reduced his alcohol consumption, on which he only relied when he was ‘trying to level out from the methamphetamine use’.
He started smoking cannabis at about age 14 until he was smoking daily, up to four grams a day. He stopped, however, when he was about 19 years old.
He used speed (amphetamine) from about age 18 and combined it with alcohol, but it appears he ceased use when he graduated to methamphetamine.
He has tried cocaine once or twice, but he does not consume it, nor heroin. It is clear that, as assessed by the Canberra Health Services’ Alcohol and Drug Service, Mr Slattery has a ‘likelihood of severe substance use disorder’. He certainly, as he attested to have, committed his crimes in relation to his drug use.
Mr Slattery has made significant efforts at rehabilitation. He briefly attended Arcadia House for withdrawal in 2015. He also completed the Solaris Therapeutic Community Program in the Alexander Maconochie Centre while in custody. He appears to have sought access to the Nexus program at the Karralika Therapeutic Community in 2017, but I have no evidence as to whether he entered it or not and, if so, whether he completed it. In April 2018, he entered a rehabilitation program at Canberra Recovery Services, graduating in November 2018. He was described as having ‘utilised his time to benefit from the program’ and to have ‘gained valuable insight into the underlying behavioural issues that maintain his addiction and displays increasing honesty, humility and willingness to change his behaviour’. He ‘demonstrated a commitment to change’.
Unfortunately, this success did not last a year, as these offences were then committed in late August, early September, the next year.
Nevertheless, he did appear to maintain a commitment to change after his arrest. He sought bail to attend the drug rehabilitation program at the Karralika Therapeutic Community.
He progressed through its Karuna program, an eight-week program required before a participant transitions to the adult residential drug rehabilitation program. Progress reports show his continuous commitment and willingness to address his drug and related issues. He expressed motivation and enthusiasm to maintain positive change. He was described as showing ‘a significant positive shift in his attitudes to rehabilitation’. By November 2020, he had reached the re-entry phase, to be followed by the transition part of the program, which is for 12 to 18 months. He is currently enrolled in an eight-week Karralika program, the “REVERSED” program.
Mr Slattery will remain in the Karralika Therapeutic Community transition program for about 12 months. He is commencing an application for property housing thereafter.
Sentencing Practice
Under s 33(1)(za) of the Sentencing Act, a court, in deciding how to sentence an offender, must consider sentencing practice.
This can be a problematic issue. Clearly, statistics can provide some generalised view of sentencing practice, but it is in the absence of important context of the relevant factors, other than a few, such as plea of guilty or age and, of course, the Court in which the sentence is imposed.
I have discussed the approach to this in R v Mathews at [44]-[49] and I propose to adopt that. In short, the information from previous decisions is valuable as they ‘result from the application of the accumulated experience and wisdom of first instance judges and appellate courts’: per Simpson J in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 1 at 71; [303], cited with approval in Hili v The Queen [2010] HCA 45; 242 CLR 520 at 537; [54].
What is important is that, while no sentence is a precedent (Director of Public Prosecutions (Vic) v Dalgliesh (Pseudonym) [2017] HCA 41; 262 CLR 428) and does not set boundaries for the sentencing discretion of the future (Hili v The Queen at 537; [54]), prior sentences do provide ‘a yardstick against which to examine a proposed sentence’ (Director of Public Prosecutions (Cth) v De La Rosa at 71; [307], quoted with approval in Hili v The Queen at 537; [54]).
Turning to the events of burglary, the Court of Appeal said in Fusimalohi v The Queen [2012] ACTCA 49 at [15], per Burns and Lander JJ, that ‘there is no single correct sentence for the offence of burglary or aggravated burglary’. That, of course, is not the end of the inquiry into sentencing practice, but the beginning.
It is not unhelpful to look at statistics, so long as it, too, is the beginning and not the end of the inquiry: see R v Horne at [49]-[53]. What these statistics show is as follows: approximately 96% of sentences recorded in the ACT Sentencing Database for burglary were of imprisonment. A few, over 72%, were sentences of full-time custody. Of those, 21% were of 7 to 12 months duration, 35% were of 13 to 18 months duration, two were of 4 years and 6 months duration and one each were of 4 years and 10 months duration and 5 years and 10 months.
The sentencing remarks for the latter two sentences either provide no clarity to the principles that led to such lengthy sentences or were not available. The Crown, in its thoughtful and compendious submissions, submitted that R v Forrest (No 2), R v Forrest (No 3) [2017] ACTSC 168, R v Forrest (No 4) [2017] ACTSC 200 and R v Tracey [2020] ACTSC 28 (upheld on appeal: Tracey v The Queen [2020] ACTCA 51), are comparable cases.
In the three matters involving Mr Forrest, he was charged with one count of aggravated burglary and eight counts of burglary, with other offences similar to those to which Mr Slattery has pleaded guilty.
Mr Forrest was sentenced to 18 months imprisonment for each of the burglaries. Each burglary was different, but, it seems to me, they were somewhat more serious than those committed by Mr Slattery. They were targeted, there was some premeditation and they involved greater property stolen or wanton damage, thus, the sentencing was a complicated exercise because of the large number of offences, with 42 offences in total. Mr Forrest was sentenced to 18 months imprisonment for each burglary, as I have said, but, after concurrency, to a total period of seven years imprisonment, with a non-parole period of four years and one month. Mr Forrest was younger than Mr Slattery and had a somewhat less serious criminal history.
In R v Tracey, Mr Tracey was charged with two offences of burglary and one offence of aggravated burglary. Again, these offences seem somewhat more serious than the burglaries committed by Mr Slattery. In the first, there was damage caused on entry, the house was ransacked and more valuable goods were taken. In the other, there was a verbal and violent confrontation with the occupant, which included a threat with a knife. Mr Tracey was described as a ‘serial, methodical burglar’. He had a similar, but more serious, criminal history than Mr Slattery, with offences of violence.
Ms M Jones, who appeared as counsel for Mr Slattery, in her helpful and comprehensive submissions, relied on two decisions: Love v The Queen [2012] ACTCA 8 and R v Steen [2020] ACTSC 222.
In Love v The Queen, Mr Love was sentenced to five years imprisonment for seven offences of burglary, one offence of aggravated burglary and eight offences of theft. The ACT Court of Appeal reduced the sentence to 12 months imprisonment for each burglary offence, two years imprisonment for the aggravated burglary and six or nine months imprisonment for each theft offence, all of which were made concurrent with the sentences for the related burglary. After concurrency, the total sentence was four years imprisonment, with a non-parole period of two years and three months. The judgment was given ex tempore and does not comprehensively address the detail of the offences or the personal circumstances of Mr Love, save that he suffered a serious disadvantage as a youth, some of which contributed to his offending behaviour. In the absence of more detail, it is difficult to compare the sentences there with Mr Slattery's situation, save to say that the sentences were influenced by the ‘obvious need for supervised rehabilitation opportunities’.
In R v Steen, Mr Steen pleaded guilty to 21 offences of burglary, 19 offences of theft and 4 other less serious offences. For most of the burglaries, which were of residences, Mr Steen gained entry by damaging the properties, mostly by smashing windows or glass doors. He stole property of greater value than anything Mr Slattery stole, including, in one case, jewellery and bags to the value of $50,400. He began using drugs at an early age and made limited attempts at rehabilitation. He had an extensive history of drug related offences.
For 19 offences of burglary, he was sentenced to two years and three months imprisonment for each offence and for the two remaining offences of burglary, he was sentenced to three years imprisonment for each. Each of the sentences for theft were made wholly concurrent with the related burglary sentences. After concurrency and the other offences for which concurrent sentences were imposed, the total sentence was for six years and seven months imprisonment, with a non-parole period of four years.
I mention also R v Crawford (No 3) [2017] ACTSC 99, where Mr Crawford was sentenced for 24 counts, including three counts of burglary, nine counts of aggravated burglary, 10 counts of theft, one count of dishonestly riding in a motor vehicle without the owner's consent and one count of damaging property. For each offence of burglary, he was sentenced to 12 months imprisonment and for each of the offences of aggravated burglary he was sentenced of three years imprisonment, except for one for which he was sentenced to four years imprisonment. For each offence of theft, he was sentenced to eight months imprisonment, to be concurrent with the sentence for the related burglary or aggravated burglary offence. After concurrency was taken into account, Mr Crawford’s total sentence was four years imprisonment.
These cases show that for multiple offences a high degree of concurrency in the sentence is appropriate, although offenders should not be left under the impression that they can commit multiple offences with impunity.
List of Additional Offences
Part 4.4 of the Sentencing Act provides a convenient method by which an offender can have offences further to those for which he is to be sentenced taken into account. Such offences are set out in a list, which is submitted to the Judge. The effect of taking such offences into account is that no sentence is imposed for any of those offences, but after they have been taken into account, no prosecution for any such offence can be commenced or taken against the offender in respect of them: s 59(3) of the Sentencing Act.
In R v Campbell [2010] ACTCA 20 at [47]-[50], the Court of Appeal explained how a court is to approach sentencing when such offences are to be taken into account. It stated:
47.Spigelman CJ has explained how a court is to take such offences into account in R v Barton (2001) 121 A Crim R 185 where (at 195 [64]) his Honour said:
The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence.
48.This is obviously constrained by s 57(3) of the Sentencing Act and by other relevant principles of sentencing, such as the principle of totality set out in Mill v The Queen (1988) 166 CLR 59.
49.When taking these offences into account it is not necessary for the court to indicate precisely what effect the taking of them into account has on the sentence that is imposed.
50.When s 57(3) of the Sentencing Act speaks of taking the offences into account, it means taking them into account in the same way as other matters are taken into account for the purpose of sentence. No doubt it will generally have the result of increasing the sentence about to be imposed. It may, in some cases, have the result of altering the nature of that sentence. But apart from those considerations, the additional offences will no doubt be taken into account as part of the sentencing process in assessing the character of the offender and the prospects of rehabilitation.
I will proceed accordingly.
Plea of Guilty
Section 35 of the Sentencing Act requires a sentencing court to consider the plea of guilty by an offender and may impose a lesser sentence when the offender pleads guilty, after considering relevant matters, including whether it was a negotiated plea, the seriousness of the offence and the effect on the victim. This is clearly designed to encourage offenders to enter a plea of guilty and at an early stage. This has great benefit to the community and to victims. Indeed, as noted in Cranfield v The Queen [2018] ACTCA 3 at [37]-[38], ‘the primary policy consideration that determines the degree of discount for a plea of guilty is the utilitarian value of the plea’.
The Court of Appeal in Williams v The Queen [2018] ACTCA 4 at [47] pointed out that public policy requires that an offender be confident that an early plea will attract a substantial discount on sentence and to know that delay will reduce the level of discount afforded on sentence.
Clearly, the earliest opportunity which attracts the greatest discount is a plea of guilty in the Magistrates Court as soon as possible at, or as soon as possible after, the first mention in that Court.
In this case, Mr Slattery pleaded guilty at the Criminal Case Conference in the Supreme Court, after the matters had been discussed there. One result was that there were a number of rolled up pleas and a list of additional offences. There was clearly some significant utilitarian value in the 38 offences not proceeding to a trial.
In R v Blundell [2019] ACTCA 34 at [12] and R v Nicholas; R v Palmer [2019] ACTCA 36 at [52], the Court of Appeal stated that, ordinarily, a plea of guilty entered before or in connection with a Criminal Case Conference will attract a sentencing discount of 15% to 20%.
That a Crown case is overwhelming does not affect the utilitarian value of a plea, as noted by Howie J in R v Borkowski [2007] NSWCCA 102; 195 A Crim R 1 at [32]. Indeed, as the Court of Appeal noted in Coggan v The Queen [2013] ACTCA 49 at [20], even an overwhelming Prosecution case requires an enormous amount of work and could still possibly fail.
I have not detailed the evidence in this case, but, for most of the offences, DNA or CCTV footage made it clear that Mr Slattery was involved in each offence, as well as combined with other evidence. The Prosecution case was very strong, though perhaps not overwhelming, in relation to each count.
I shall apply a significant discount to each sentence.
Rehabilitation
As noted above (at [60]-[64]), Mr Slattery has made a number of attempts at rehabilitation, in two cases by residential drug rehabilitation, prior to him relapsing and committing the current offences. While they should not be dismissed, and while they do show an ongoing recognition by Mr Slattery that he needs to rehabilitate from his drug dependency, they do not, of themselves, result in a significant moderation of sentence.
As noted in Saga v Reid [2010] ACTSC 59 at [89]-[90], a number of attempts are often needed to achieve ultimate rehabilitation and, while the Court cannot allow endless attempts, the successful completion of rehabilitation prior to relapse may be a reasonable basis for making further attempts which are likely to progress the slow and arduous journey to abstinence, or, at least, proper management of a drug dependency.
In addition, Mr Slattery has successfully completed a 12-month residential drug rehabilitation course and has now moved some two months into a transition phase, with every sign of continuing to progress.
This was done while he was awaiting sentence for other offences. In this sense, it was akin to a Deferred Sentence Order under s 27 of the Sentencing Act. Such an Order is intended, in the words of the section, to give an offender ‘an opportunity to address his or her criminal behaviour’. Successful completion of such a process requires the Court to consider whether it would impose a less severe sentence as a result (s 116(1)(b) of the Sentencing Act). The Court is then required to state, in general terms, the penalties that the offender might receive if he or she does or does not successfully complete the Order (s 118).
This process is the enactment of a similar process used for a long time in this Court under the regime approved by the High Court in Griffiths v The Queen (1977) 137 CLR 293.
It has been accepted, too, at common law that a period of post-offending pre-sentence residential rehabilitation should ordinarily be taken into account on sentence: see R v Delaney [2003] NSWCCA 342; 59 NSWLR 1 at 5-6; [19]-[26].
This principle has been accepted and applied in this Territory for some time: see, for example, R v Elphick (No 2) [2015] ACTSC 23 at [85]-[90]. As originally formulated in this jurisdiction, it amounted to a backdating of the sentence under s 63(1) of the Sentencing Act (Okwechime v Sindell [2009] ACTSC 162; 235 FLR 299 at 313; [65]) and, thus, allowing one half of the days in residential rehabilitation as equivalent to days in imprisonment.
In R v Eyles (No 3) [2017] ACTSC 1 at [103]-[105], I used such time that the defendant spent in residential drug rehabilitation rather differently to reduce the time to be spent in custody following the cancellation of a Good Behaviour Order. That, in effect, reduced the period of imprisonment that would otherwise be appropriate.
The question of the way a sentencing court should deal with that issue is important for it can, as, indeed, it will in this case, affect the length of the sentence, which impacts on eligibility for a Treatment Order. A backdated sentence is still a sentence of the full length, notwithstanding that some part of it has been served by the date of the imposition of the sentence. The way this is approached must take care, however, not to breach s 12A(5) of the Sentencing Act and reduce the length of the appropriate sentence to enable a Treatment Order to be made.
The approach of backdating the sentence has some attraction, though there are a number of risks. In the first place, it can give a false sense of mathematical precision to the sentencing process. Secondly, it can obscure the value of rehabilitation as part of the assessment of the appropriate and adequate sentence.
Thus, quasi-imprisonment can appear to justify backdating, as, for example, where a period of immigration detention is involved (Islam v The Queen [2014] ACTCA 2 at [22]).
There are echoes of this in R v Campbell [1999] NSWCCA 76, where, at [24], Kirby J referred to the constraints imposed by the ‘discipline and restrictions’ of the time spent in rehabilitation as justifying at least half, if not three-quarters, of the time spent in rehabilitation as being considered to be available as a legitimate discount on sentence. It is, thus, a little like ‘strict conditions of bail’: see R v Crawford (No 1) at [99]. This seems to risk obscuring the need to account for successful, or even partially successful, rehabilitation, regardless of the conditions under which it has been experienced, though these precautions are additionally relevant.
Any voluntary treatment for a condition that may have contributed to an offence is a matter that the Court is required to consider: s 33(1)(t) of the Sentencing Act.
The risk is that a Court will be forced to inquire into the conditions under which residential drug rehabilitation is pursued in order to assess a percentage of imprisonment time. It can also unfairly disadvantage an offender who successfully completes rehabilitation in a less strict facility, in comparison to one who may not successfully complete the rehabilitation, but in a stricter environment.
In the sentence imposed in R v Delaney at [31], it appears that the Court did not extend the backdating to take into account the period of residential drug rehabilitation, but reduced the actual sentence to be imposed because of the statutorily required consideration.
Thus, I consider that the period Mr Slattery spent in residential rehabilitation should be taken into account in moderating the sentence, as with other matters of mitigation like the plea of guilty, remorse and so on. Nevertheless, the rehabilitation that, on this occasion, has been achieved by Mr Slattery is to be given weight in the sentence: see R v Hawkins [2015] ACTSC 333 at [53]; R v Loulanting [2015] ACTSC 172 at [38]. It must not, of course, overwhelm other purposes of punishment, but it is an important matter that I am required to statutorily consider.
Consideration
In this jurisdiction, the purposes of sentencing set out in s 7 of the Sentencing Act are matters to which the sentencing courts are required to have regard.
In this case, the seriousness of the offences of burglary, theft and dishonestly driving a motor vehicle without the owner's consent calls for punishment. That and the prevalence and effect on victims of such offences also makes general deterrence a relevant consideration.
Mr Slattery's criminal history, especially his history of burglary and other dishonesty offences, requires an element of specific deterrence. On the other hand, his rehabilitation, which, if it can be achieved, is the safest and most durable protection of the community (Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 537; [32]), and Mr Slattery's successful participation to date, not only means that it seems an achievable purpose, but must also bear on the length of the sentence.
I did not have Victim Impact Statements. That is unfortunate, but the Court can, in general terms, appreciate the sense of violation and insecurity that the burglary victims feel, and the deprivation of and its consequences to the victims of theft and those whose cars were taken. The impacts of the offences on the victims must be recognised.
Denunciation and accountability are relevant, as is protection of the community, and the sentence to be imposed will recognise these purposes also.
I have regard to the seriousness of the offences as I have described them and to Mr Slattery's personal circumstances as well, which I have earlier addressed.
I shall take into account the additional offences in the list of additional offences in the way I have outlined earlier. I note that Mr Slattery has paid no compensation; none has expressly been sought.
In addition, a proper allowance for the plea of guilty will be an important element in the sentence to be imposed. Mr Slattery has also expressed remorse and described feelings of guilt at his offending. Remorse is a relevant matter: see s 33(1)(w) of the Sentencing Act. I accept that he is remorseful: see Fusimalohi v R [2012] ACTCA 49 at [31]-[33] per Refshauge J.
He also suffered a somewhat disadvantaged childhood and, as explained in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 594-595; [41]-[44], this is available to mitigate sentence. The prominence of alcohol and drugs, especially as used by authority figures, and the deprived circumstances of Mr Slattery’s childhood show the disadvantage and the way they mitigate his culpability.
Mr Slattery's drug addiction does not mitigate the culpability of the offences, nor their seriousness, but the circumstances under which he became dependent on illicit drugs do tend to provide some mitigation of his culpability.
Having regard to all these matters, I am of the view, however, that no sentence but a sentence of imprisonment is appropriate for these offences: s 10 of the Sentencing Act.
There are, of course, 20 offences to be sentenced and each must be accorded the appropriate sentence: Pearce v The Queen (1998) 194 CLR 610 at 623-624; [45]. That there are multiple offences brings additional issues for the sentencing Court to address. Thus, I have carefully considered the length of each sentence to ensure that Mr Slattery is not punished twice, especially where there are common elements.
I have also considered whether the sentences should be partly or wholly concurrent because they are part of the same course of conduct. Thus, in particular, the sentence for the offences of theft, especially given the amount involved in the theft, will, as is often the case for the reasons set out in R v McMahon [2014] ACTSC 280 at [94], be wholly concurrent. That is relevant when I take into account the minor thefts in the list of additional offences also.
Further, the offences are closely related, in the sense that they were committed, to a large extent, on two occasions. On each occasion, they were committed on the same or consecutive days, often using motor vehicles taken from one place to commit offences at another. This, too, justifies a degree of concurrency.
Although the offences were committed effectively on two occasions and so could be said to be a part of a course of conduct, that is a little more complicated. Thus, there are two aspects of sentencing for a course of conduct, as noted in R v Di Bitonto [2016] ACTSC 280 at [93]-[94]. Although some, especially including many of the additional offences, might be said to be aspects of the same course of conduct and so attracting a high degree of concurrency, they are really multiple offences, suggesting a somewhat more serious course of offending.
While there are no actual offences requiring actual imposition of sentence in the list of additional offences, it may be appropriate, where they are a part of a course of conduct in the first sense, not to apply the ordinary principles, as noted above (at [81]-[83]), to the effect of those offences on the ultimate sentence.
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 offences 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 Slattery to achieve his goals when he is released into the community. This may result in what is seen as leniency in the accumulation of the offences, but it is important to have regard not only to the total culpability of Mr Slattery's offending, but to the other relevant factors, such as his disadvantaged upbringing and his participation in rehabilitation, and requires a sentence that will be proportionate to the criminality and the relevant subjective circumstances to leave Mr Slattery with some hope for the reform, which I am satisfied he does seek.
I note that, prior to being granted bail, Mr Slattery spent 68 days in custody. I shall deal with that in accordance with s 63 of the Sentencing Act, especially s 63(2).
Sentence
His Honour then spoke directly to the offender.
Mr Slattery, please stand.
I convict you of the first count on the indictment, dishonestly driving a motor vehicle without the owner's consent between 27 August 2019 and 4 September 2019, and sentence you to nine months imprisonment, to commence on 3 December 2020 and end on 2 September 2021, that is to take into account Pre-Sentence Custody. Had you not pleaded guilty, I would have sentenced you to 11 months imprisonment.
I convict you of the second count on the indictment, burglary on 31 August 2019, and sentence you to 13 months imprisonment, to commence on 3 December 2020 and end on 2 January 2022, that is to be cumulative as to four months on the sentence for the first count. Had you not pleaded guilty, I would have sentenced you to 16 months imprisonment.
I convict you of the third count on the indictment, dishonestly driving a motor vehicle without the owner's consent between 31 August 2019 and 2 September 2019, and sentence you to nine months imprisonment, to commence on 3 May 2021 and end on 2 February 2022, that is to be cumulative as to one month on the sentence for the second count. Had you not pleaded guilty, I would have sentenced you to 11 months imprisonment.
I convict you of the fourth count on the indictment, burglary on 31 August 2019, and sentence you to 12 months imprisonment, to commence on 3 May 2021 and end on 2 May 2022, that is to be cumulative as to three months on the sentence for the third count. Had you not pleaded guilty, I would have sentenced you to 15 months imprisonment.
I convict you of the fifth count on the indictment, obtaining property by deception on 1 September 2019, and sentence you to six months imprisonment, to commence on 3 November 2021 and end on 2 May 2022, that is to be wholly concurrent on the sentence for the fourth count. Had you not pleaded guilty, I would have sentenced you to eight months imprisonment.
I convict you of the sixth count on the indictment, burglary on 1 September 2019, and sentence you to 14 months imprisonment, to commence on 3 July 2021 and to end on 2 September 2022, that is to be cumulative as to four months on the sentence for the fourth and fifth counts. Had you not pleaded guilty, I would have sentenced you to 18 months imprisonment.
I convict you of the seventh count on the indictment, burglary between 30 August 2019 and 3 September 2019, and sentence you to 12 months imprisonment, to commence on 3 December 2021 and end on 2 December 2022, that is to be cumulative as to three months on the sentence for the sixth count. Had you not pleaded guilty, I would have sentenced you to 15 months imprisonment.
I convict you of the eighth count on the indictment, burglary on 2 September 2019, and sentence you to 12 months imprisonment, to commence on 3 March 2022 and to end on 2 March 2023, that is to be cumulative as to three months on the sentence for the seventh count. Had you not pleaded guilty, I would have sentenced you to 15 months imprisonment.
I convict you of the ninth count on the indictment, dishonestly driving a motor vehicle without the owner’s consent between 2 September 2019 and 3 September 2019, and sentence you to nine months imprisonment, to commence on 3 July 2022 and end on 2 April 2023, that is to be cumulative as to one month on the sentence for the eighth count. Had you not pleaded guilty, I would have sentenced you to 11 months imprisonment.
I convict you of the 10th count on the indictment, burglary on 11 September 2019, and sentence you to 14 months imprisonment, to commence on 3 June 2022 and end on 2 August 2023, that is to be cumulative as to four months on the sentence for the ninth count. Had you not pleaded guilty, I would have sentenced you to 18 months imprisonment.
I convict you of the 11th count on the indictment, dishonestly driving a motor vehicle without the owner's consent between 11 September 2019 and 13 September 2019, and sentence you to nine months imprisonment, to commence on 3 December 2022 and end on 2 September 2023, that is to be cumulative as to one month on the sentence for the 10th count. Had you not pleaded guilty, I would have sentenced you to 11 months imprisonment.
I convict you of the 12th count on the indictment, burglary on 12 September 2019, and sentence you to 14 months imprisonment, to commence on 3 November 2022 and end on 2 January 2024, that is to be cumulative as to four months on the sentence for the 11th count. Had you not pleaded guilty, I would have sentenced you to 18 months imprisonment.
I convict you of the 13th count on the indictment, dishonestly driving a motor vehicle without the owner's consent on 12 September 2019, and sentence you to nine months imprisonment, to commence on 3 May 2023 and end on 2 January 2024, that is to be cumulative as to one month on the sentence for the 12th count. Had you not pleaded guilty, I would have sentenced you to 11 months imprisonment.
I convict you of the 14th count on the indictment, burglary on 12 September 2019, and sentence you to 12 months imprisonment, to commence on 3 May 2023 and end on 2 May 2024, that is to be cumulative as to four months on the sentence for the 13th count. Had you not pleaded guilty, I would have sentenced you to 15 months imprisonment.
I convict you of the 15th count on the indictment, theft on 12 September 2019, and sentence you to six months imprisonment to commence on 3 December 2023 and end on 2 June 2024, that is to be cumulative as to one month on the sentence for the 14th count. Had you not pleaded guilty, I would have sentenced you to eight months imprisonment.
I convict you of the 16th count on the indictment, burglary on 12 September 2019, and sentence you to 12 months imprisonment, to commence on 3 September 2023 and end on 2 September 2024, that is to be cumulative as to three months on the sentence for the 15th count. Had you not pleaded guilty, I would have sentenced you to 15 months imprisonment.
I convict you of the 17th count on the indictment, dishonestly obtaining property on 12 September 2019, and sentence you to eight months imprisonment, to commence on 3 February 2024 and end on 2 October 2024, that is to be cumulative as to one month on the on the sentence for the 16th count. Had you not pleaded guilty, I would have sentenced you to 10 months imprisonment.
I convict you of the first transferred charge, possessing a drug of dependence on 14 September 2019, and sentence you to one months imprisonment, to commence on 3 October 2024 and end on 2 November 2024, that is to be wholly cumulative on the sentence for the 17th count. Had you not pleaded guilty, I would have sentenced you to six weeks imprisonment.
I convict you of the second transferred charge, driving whilst disqualified from holding or obtaining a driver licence between 2 September 2019 and 3 September 2019 as a repeat offender, and sentence you to 14 days imprisonment, to commence on 3 November 2024 and end on 16 November 2024, that is to be wholly cumulative on the sentence for the first transferred charge, possessing a drug of dependence. Had you not pleaded guilty, I would have sentenced you to 21 days imprisonment.
I note that you are disqualified from holding or obtaining a driver licence for 24 months from today, 9 February 2021, to 8 February 2023.
I convict you of the third transferred charge, driving whilst disqualified from holding or obtaining a driver licence between 11 September 2019 and 13 September 2019, and sentence you as a repeat offender to 14 days imprisonment, to commence on 17 November 2024 and end on 30 November 2024, that is to be wholly cumulative the sentence for the second transferred charge, driving whilst disqualified from holding or obtaining a licence. Had you not pleaded guilty, I would have sentenced you to 21 days imprisonment.
I note that you are disqualified from holding or obtaining a licence for 24 months from 9 February 2023 to 8 February 2025.
I note that the total sentence is 3 years, 11 months and 28 days of imprisonment.
Mr Slattery, you may be seated.
I note that Mr Slattery has now been sentenced to a total of 3 years, 11 months and 28 days imprisonment for all of the offences to which he has pleaded guilty. That is, of course, less than 4 years imprisonment. He is not subject to any other sentencing order within the meaning of s 12A of the Sentencing Act. I am satisfied that he will live in the ACT for a period of at least 12 months. Accordingly, he is eligible for a Treatment Order.
I have carefully read the Suitability Assessments, noted above (at [6]). I have carefully considered them and the recommendations made in both of them that Mr Slattery is suitable for a Treatment Order.
I am satisfied, on the balance of probabilities, that Mr Slattery is dependent on illicit drugs, particularly methamphetamine, and that this dependency substantially contributed to the commission of the offence of burglary on 31 August 2019.
I have not identified any indicators as to unsuitability to a Treatment Order under Table 46K of the Sentencing Act.
I further note that Mr Slattery has made significant progress in his rehabilitation, but that there is more for him to do to enable him to be abstinent and maximise his ability to prevent relapse into illicit drug use. I note that he has consented to the making of a Treatment Order.
Accordingly, I am satisfied that Mr Slattery is suitable for a Treatment Order and that such an Order should be made. In the circumstances, it need only be for one year.
I note that the total sentence I have imposed, however, commences on 3 December 2020 and that the period from that date until today has now been served. The sentence must and will be suspended from today for the whole of the balance of the sentence for the burglary offence: see s 12A(2) of the Sentencing Act.
Despite the service of the Pre-Sentence Custody as part of the sentence, this does not prevent Mr Slattery from being subject to a Treatment Order for the reasons set out in R v Crawford (No 1) at [91]-[111].
Drug and Alcohol Treatment Order
His Honour then spoke directly to the offender again.
Mr Slattery, please stand again.
I make a Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) for 12 months from today, 9 February 2021, to 8 February 2022 for the offence of burglary on 31 August 2019 (the second count of the indictment), the primary offence.
I extend the Drug and Alcohol Treatment Order for the offences being the first and third to 17th counts of the indictment and the three transferred charges, which are all associated offences of the primary offence.
I note that I have entered convictions for the primary offence and the associated offences and imposed sentences for all of them, which convictions and sentences are hereby incorporated into the Drug and Alcohol Treatment Order as the custodial part of the Order.
I suspend the total sentence for the primary offence and associated offences from 9 February 2021 to 30 November 2024 under s 80W of the Crimes (Sentencing) Act 2005 (ACT).
I require you to sign an undertaking to comply with the offender's good behaviour obligations under s 85 of the Crimes (Sentencing Administration) Act 2005 (ACT) for the period from 9 February 2022 to 30 November 2024, with a probation condition that you be under the supervision of the Commissioner of ACT Corrective Services, or his delegate, for the period of the Good Behaviour Order, or such lesser period as the person supervising you considers appropriate, and obey all reasonable directions of the person supervising you.
For the treatment and supervision part of the Drug and Alcohol Treatment Order, I require you to comply with the core conditions under s 80Y of the Crimes (Sentencing) Act 2005 (ACT) for the term of the Drug and Alcohol Treatment Order, and that, subject to the order below, you comply with such case management and programs of counselling and treatment, including urinalysis and other treatment or programs, as may be required of you by a member of the Treatment Order Team, or by order of the Court.
Further, I require that you re-admit yourself to the Transition Program conducted by the Karralika Therapeutic Community forthwith upon leaving Court until the completion of the program, or until you permitted to leave by a member of the Treatment Order Team, or the Court, and obey all rules of the program and directions of the person in charge of the program.
If you leave or are discharged from the treatment program conducted by the Karralika Therapeutic Community, I require you to report to ACT Corrective Services by 4:00pm the next day.
I direct you to comply with any directions of the Court from time to time about appearing in Court, in person or by electronic means.
I direct that you attend Court on 12 February 2021 at 11:00am.
Mr Slattery, you have been around the courts long enough to probably know much of what I have said, but I need to explain it to you to make it clear.
In essence, I have said that the seriousness of the offences requires a substantial period of imprisonment, but, given your personal circumstances and the rehabilitation you have made to date, that period is just under four years imprisonment.
I have made a Treatment Order, which means that for the next 12 months you will see quite a lot of me. You will come back to Court frequently, as necessary for supervision of your continuing rehabilitation, which is intended to ensure that you manage to learn, take into account and give effect to the lessons that you have learned already in Karralika and what you are now learning in the Transition Program.
What is really important is that you commit yourself to that and dedicate yourself to that and achieve those things because, at the end of the day, not only will that be better for the community, which is really important and that is a prime concern of me, but it also means that you will be able to live a useful and fulfilling life and actually contribute to the community in what you do and not, instead, be a predator on the community.
There are a number of things that are really important that you should start to think about already. One of the first things is honesty. Honesty is an essential element of drug rehabilitation and you need to be honest with yourself and with the Court and if you do things that are going to cause some sanction to you, then admitting it will reduce the sanction, but also will mean that we can fairly help you and assist you not to do those things and to keep on the straight and narrow so that, at the end, you can achieve what this Court wants and what you also want.
The second thing is to commit yourself to the program and to continue there. Things will get tough. No doubt, you have experienced some of that in Karralika already, but they will get tough from time to time. The second worst thing you can do is run away and leave. Preferably, stick it out and do it. But the worst thing you can do, if you run away, is hide your head in the sand and try and hide and go away. Come back. I have said that if you leave or are discharged, you have got to report to Corrective Services by 4:00 pm and you will come back to Court.
I cannot guarantee that we will send you back into the program, or another program. I cannot guarantee that I will not cancel the Treatment Order and send you to custody and, if I send you to custody, I can order that you serve the whole of the almost four years of your sentence that is outstanding; although, obviously, I am obliged to take into account the progress you have made to date. So, the stakes are relatively high and the four years will not be worked out over the period of the Treatment Order in absolute terms, as it would, say, on parole or something like that. Time does not necessarily count. It does, in a general sense, but that depends upon the circumstances and the nature of your relapse and all those considerations.
Now, as I say, you will see me once a week initially so that we can see how things are going. Most of that will be fairly mundane, ‘How are you going?’, ‘Any issues?’ and so on. Some of it is an opportunity for me to say, ‘There are some issues that need to be addressed’, because that has been reported to me by members of the Treatment Order Team. Some will be an opportunity for you to say, ‘I am having a really tough time. I need to rethink what I am doing’, or, ‘I need some help’.
Now, judges have all sorts of power up here. You look at us as pretty powerful, but I cannot solve everything. It is, however, amazing how much we can draft the resources of the Treatment Order Team together to get some assistance, but I cannot help if I do not know. So, that is the opportunity for you to settle in to see how it is going and let me know if there are any difficulties and we can address those.
At the end of the day, the aim is really for you to atone for the crimes that you have committed. And many victims, but not all victims, think that, if you can be rehabilitated, that will be some fair justification for what they have suffered. In any event, as I say, it is better for you and better for the community that that occurs. So, we hope that this Court, which is designed to achieve that rehabilitation, will help you do that, but at the end of the day it is all on you. You have got to do most of it yourself and we will try and help you. You may be seated.
| I certify that the preceding one-hundred and seventy-nine [179] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge. Associate: Date: 15 December 2021 |
20
61
0