R v Smith - [2022] ACTSC 288

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Smith
Citation:	[2022] ACTSC 288
Hearing Dates:	29 July 2022, 30 September 2022
Decision Date:	18 October 2022
Before:	Refshauge AJ
Decision:	1. The Informations for the first two offences of burglary and the offence of theft be amended by the deletion of “on 14 September” and substitution of “between 13 and 14 September”. 2. Alexander Mark Smith be convicted of burglary and be sentenced to 11 months imprisonment to commence on 23 May 2022 and end on 22 April 2023. 3. Alexander Mark Smith be convicted of burglary and be sentenced to 12 months imprisonment to commence on 23 October 2022 and end on 22 October 2023. 4. Alexander Mark Smith be convicted of theft and be sentenced to 12 months imprisonment to commence on 23 February 2023 and end on 22 February 2024. 5. Alexander Mark Smith be convicted of burglary and sentenced to 12 months imprisonment to commence on 23 November 2023 and end on 22 November 2024. 6. Alexander Mark Smith be convicted of theft and be sentenced to eight months imprisonment to commence on 23 May 2024 and end on 22 January 2025. 7. Alexander Mark Smith be convicted of failing to comply with a direction without reasonable excuse and be fined $250 and given eight months to pay. 8. Alexander Mark Smith be convicted of unlawfully possessing stolen property and be sentenced to two months imprisonment to commence on 23 November 2024 and end on 22 January 2025. 9. Alexander Mark Smith be convicted of trafficking in a trafficable quantity of cannabis and be sentenced to 10 months imprisonment to commence on 23 September 2024 and end on 22 July 2025. 10. Alexander Mark Smith be convicted of trafficking in methamphetamine and be sentenced to 12 months imprisonment to commence on 23 April 2025 and end on 22 April 2026. 11. Alexander Mark Smith be convicted of possessing heroin and be sentenced to three months imprisonment to commence on 23 February 2026 and end on 22 May 2026. 12. The Good Behaviour Order made on 28 January 2020 is cancelled. 13. Alexander Mark Smith’s conviction for common assault be confirmed. 14. Alexander Mark Smith be required to sign an undertaking to comply with the offender's good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for two years from today, 18 October 2022 until 17 October 2024. 15. A Drug and Alcohol Treatment Order under section 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Alexander Mark Smith for two years from today, commencing on 18 October 2022 and ending on 17 October 2024, in respect of the primary offence of burglary of which he has been convicted and for which he has been sentenced to 11 months imprisonment. 16. The Order is extended to the other offences of burglary, theft, unlawfully possessing stolen property, trafficking in cannabis, trafficking in methamphetamine and possessing heroin, of which Alexander Mark Smith has all been convicted and for which he has been sentenced and which are associated offences of the primary offence. 17. It be noted that the convictions and sentences imposed for the primary and associated offences have been recorded and are hereby incorporated into the Drug and Alcohol Treatment in the custodial part of the Order. 18. The Custodial Part of the Drug and Alcohol Treatment Order for the primary and associated offences is hereby suspended, under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 18 October 2022, until 22 May 2026. 19. Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), Alexander Mark Smith be required to sign an undertaking to comply with the offender's good behaviour obligations, under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT), from the day after the end of the Drug and Alcohol Treatment Order, 18 October 2024, until the end of the total sentence, 22 May 2026, with a probation condition that he accept supervision from the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking, or such lessor period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him, including as to urinalysis, counselling and treatment. 20. For the treatment and supervision part of the Drug and Alcohol Treatment Order: (a) The core conditions of the Order, set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT), be hereby imposed; (b) Alexander Mark Smith travel directly from this Court today to Karralika Therapeutic Community, conducted by Karralika Programs Incorporated at Isabella Plains ACT, in the company of his parents and admit himself to the residential drug rehabilitation program at that facility by 2:00 pm today; (c) Alexander Mark Smith is directed to complete the residential drug rehabilitation program at Karralika Therapeutic Community, not to leave the facility until he has completed the program and to comply with all the directions of the person in charge of the program and all the rules of the program and the facility; (d) Should Alexander Mark Smith leave or be discharged from the program before completing it, he report to ACT Corrective Services by 4:00 pm on the next business day, with a view to having his Drug and Alcohol Treatment Order reviewed; (e) Alexander Mark Smith undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team, and obey all reasonable directions of any member of that Team about where he resides, with whom he associates and his attendance from time to time; (f) Alexander Mark Smith not to return a positive test sample under alcohol and drug testing; and (g) Alexander Mark Smith comply with any direction of the Court from time to time about attendance at Court in person or by electronic means. 21. Alexander Mark Smith be directed to appear by electronic means in Court on Friday 28 October 2022 at 12:30 pm. 22. Alexander Mark Smith be directed to attend the Court Registry before he leaves the Court precinct to sign a sealed copy of this Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that the Order is in force.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Theft – Burglary – Unlawful Possession of Stolen Property – Trafficking in Methamphetamine – Trafficking in Cannabis – Possession of Heroin – Subjective Circumstances – Drug Dependence – Sentence of Imprisonment – Drug and Alcohol Treatment Order Application – Application Successful
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT) s 108 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 12A, 33, 46J, 46K, 63, 65, 80S, 80W, 80ZA Criminal Code 2002 (ACT) ss 308, 311, 324, 603 Criminal Code Regulation 2005 (ACT) sch 1, part 1.1 item 44, sch 1, part 1.2 item 86, sch 2, part 1.2, item 35 Drugs of Dependence Act 1989 (ACT) s 169 Public Health Act 1997 (ACT) s 120
Cases Cited:	Attorney-General (SA) v Tichy (1982) 30 SASR 84 Beniamini v Craig [2017] ACTSC 30 Boney v The Queen [2015] NSWCCA 29 Bui v The Queen [2015] ACTCA 5 Channon v The Queen (1978) 33 FLR 433 Chaudhary v Ducret (1986) 11 FCR 163 Cotter v Corvisy [2008] ACTSC 64 Daher v The Queen [2018] NSWCCA 287 Duca v The Police [1999] SASC 40; 73 SASR 15 Gillard v The Queen [2013] ACTCA 17 Hogan v Hinch [2011] HCA 47; 243 CLR 506 Johnson v Vander Sanden [2021] WASCA 27 Markarian v The Queen [2005] HCA 5; 228 CLR 357 R v Blaskovic [1999] FCA 1306 R v Bo [2014] ACTSC 287 R v Brown [2019] ACTSC 59 R v Cichacz [2022] ACTSC 28 R v Coleman (No 3) [2021] ACTSC 357 R v Conomos [2019] ACTSC 183 R v Crawford (No 1) [2020] ACTSC 245 R v Deng [2022] ACTSC 143 R v Ebbott [2019] ACTSC 379 R v ER [2022] ACTSC 112 R v Fahey & Ors [2001] QCA 82; 1 Qd R 391 R v Fleury [2022] ACTSC 103 R v Forrest (No 2) [2019] ACTSC 83 R v Girvan (No 2) [2013] ACTSC 138 R v Hancock [2021] ACTSC 52 R v Hyde [2017] ACTSC 337 R v Hyde [2020] ACTSC 301 R v Johnson [2017] ACTSC 280 R v Khoder (No 2) [2020] ACTSC 76 R v Kristiansen [2015] ACTSC 159 R v MacKinder [2021] ACTSC 176 R v Massey [2022] ACTSC 3 R v Matthews [2020] ACTSC 364 R v McMahon [2014] ACTSC 280 R v Montgomery [2022] ACTSC 291 R v Munro [2016] ACTSC 222 R v Pocock [2015] ACTSC 77 R v Reid [2021] ACTSC 72 R v Sladic [2014] ACTSC 56 R v Slattery [2021] ACTSC 154 R v Tran [2014] ACTSC 368 R v Verdins [2007] VSCA 102; 16 VR 269 R v Visser [2016] ACTSC 261 R v White [2014] ACTSC 158 Sharma v The Queen [2017] NSWCCA 85 Talbot v The Queen (1992) 34 FCR 100 Thorn v Laidlaw [2005] ACTCA 49
Texts Cited:	Australian Government Productivity Commission, Australia's prison dilemma (Research Paper, October 2021)
Parties:	The Queen (Crown) Alexander Mark Smith (Offender)
Representation:	Counsel C Wanigaratne (Crown) K Musgrove (29 July 2022), J Maher (30 September 2022) (Offender)
Solicitors ACT Direct of Public Prosecutions (Crown) Kamy Saeedi Law (Offender)
File Numbers:	SCC 10 of 2022 SCC 11 of 2022 SCC 21 of 2022 SCC 22 of 2022 SCC 158 of 2022 SCC 159 of 2022

REFSHAUGE AJ

Introduction

Sentencing fairly and in accordance with the law is the duty of a judge, but it is, as pointed out in many cases, most recently in R v Massey [2022] ACTSC 3 at [1], one of the hardest tasks of the Court.
Even when, as explained in Cotter v Corvisy [2008] ACTSC 64 at [1], sentencing used to be simpler because there were fewer options from which the sentencer could choose, it was still difficult.
In the Australian Capital Territory, a major reform was the enactment of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), which confirmed and, including the subsequent amendments, added a larger number of alternative sentencing options. As explained in R v Deng [2022] ACTSC 143 at [1], however, this introduced complexities with room for the application of common law principles which, of course, are also part of the interpretation of statutes.
It appears that the wider range of sentencing alternatives has been a reaction to the criminological research that shows that imprisonment is generally ineffective in reducing crime and protecting the community. A very recent study was that of the Australian Government Productivity Commission in its research paper Australia's prison dilemma (Research Paper, October 2021).
The Research Paper pointed out that alternative approaches which “effectively deal with the underlying causes of offending can result in better long-term recidivism outcomes” (at 94).
Nevertheless, there is a role for punishment as a means of showing how seriously the community takes the breach of law and community standards by the offending and to set and enforce compliance with the social obligations for respectful behaviour.
An important alternative has been the introduction of the Drug and Alcohol Treatment Order (Treatment Order), by the insertion of s 12A into the Sentencing Act. This is a response to the growing harm of drug use, especially in its relationship with crime and where such use was not significantly reduced by imprisonment. It was also consistent with the Government's harm reduction strategy for addressing drug use.
Mr Smith has now pleaded guilty to 10 charges and has sought a Treatment Order because of his drug dependence. The offences, including three offences of burglary, two offences of theft, an offence of failing to comply with a public health direction, possession of goods reasonably suspected of being stolen, trafficking in methamphetamine, trafficking in a trafficable quantity of cannabis and possession of a drug of dependence, namely heroin.
At the sentencing hearing, two Crown Tender Bundles were tendered, without objection, being one for the burglary and theft offences and one for the drug offences. Each contained the prescribed, and helpful, cover sheet and the committal and transfer documents, an Agreed Statement of Facts, Mr Smith's Criminal History and a Pre-Sentence Report dated 22 July 2022 (the same Report in each case). The Bundles also contained documentation relating to an offence, committed on 29 March 2019, for which Mr Smith was sentenced to a Good Behaviour Order for 24 months from 28 January 2020 and which some of these offences breached.
Subsequently, Mr Smith consented to the making of a Treatment Order and the Drug and Alcohol Treatment Assessments (Suitability Assessments) under s 46J of the Sentencing Act were ordered to be prepared. The two Suitability Assessments are from Alcohol and Drug Services dated 8 September 2020, to which was attached a Case Plan for Mr Smith, and from ACT Corrective Services dated 22 September 2022, which were both tendered without objection. Finally, the Crown, also without objection, tendered a quote for the installation of equipment for one of the properties the subject of one of the burglaries, being a report of eVideo to which were attached three tax invoices for the work done.
Mr J Maher, counsel for Mr Smith, tendered, also without objection, a Defence Tender Bundle comprising a reference from Mr Smith's mother, a psychological assessment by Dr Bruce Stevens dated 9 May 2022 and a letter from Karralika Programs Incorporated dated 13 May 2022. At the hearing he tendered a second letter from Karralika Programs Inc dated 22 September 2022.
None of the contents of any of the tendered documents was challenged. Mr C Wanigaratne, counsel for the Crown, Ms K Musgrove, counsel for Mr Smith, and Mr J Maher, who was also Mr Smith's counsel all provided written submissions of great assistance to the Court, supplemented by oral submissions of Mr Wanigaratne and Mr Maher which answered many of the Court's questions and all of which are appreciated by the Court and helpful to narrow and focus the issues.
From this material the following findings are made.

The facts

It is, of course, essential for the imposition of a just and adequate sentence in the sentencing of offenders for the Court to make findings of the facts of the offences. In this case, the offences were committed over a series of occasions in 2021 and 2022.
In chronological order, the first offences were committed by Mr Smith on 5 May 2021. On that date, Mr Smith drove himself and a companion in his Kia motor vehicle to an underground carpark in Moncrieff, ACT. When he parked the car in the carpark, two masked men approached his motor vehicle. One produced a firearm and the other a hammer and the latter struck the driver’s side window with the hammer, damaging it, and then opened the door and tried to pull Mr Smith out of the vehicle.
Mr Smith quickly reversed the motor vehicle out of the parking space and drove it out of the underground carpark. As he drove out, the car was rammed by the motor vehicle in which the two masked men had arrived. Mr Smith drove the motor vehicle towards Gungahlin Police Station and his companion rang the emergency telephone number 000.
When they arrived at the police station at about 8:45 pm, Mr Smith participated in a recorded interview and his companion gave a statement. Police then, with consent, searched his motor vehicle. They located a lock box unit and in the box was a snap lock bag containing a crystalline substance suspected of being a drug and a clip seal bag with a rocky substance, also suspected of being a drug. There were also a set of keys and some drug paraphernalia. There was, further, in the side door of the motor vehicle, a silver food grinder.
Mr Smith participated in a further interview, which was recorded, and in it admitted that the powder was methamphetamine and the rocky substance was heroin. He also said that he used the grinder, which was his, to grind the heroin before smoking it. He admitted that the lock box had been purchased earlier that day, from an associate who had also left the methamphetamine in the motor vehicle. Mr Smith said he had decided to store it for the associate.
Subsequent testing by the ACT Government Analytical Laboratory confirmed that the powder was 22.751 grams of methamphetamine, of 65.8% purity, and that the rocky substance was 0.528 grams of heroin. The trafficable quantity of methamphetamine under the Criminal Code Regulation 2005 (ACT) is 6 grams (schedule 1, part 1.1, item 44). A commercial quantity is 3 kilograms. A trafficable quantity of heroin is 5 grams (schedule 1, part 1.2, item 86).
As a result, Mr Smith was charged with possession of a drug of dependence and with trafficking in a controlled drug other than cannabis, namely methamphetamine.
It does not appear that Mr Smith was arrested at that time.
The next offences were burglaries, committed in two units of a large multistorey building in Lonsdale Street, Braddon ACT.
In the late evening of 13 September 2021, Mr Smith drove his father's vehicle into the back alley behind the building. Closed Circuit Television (CCTV) in the area showed him checking the rear doors of the premises at about 10:55 pm. He then entered a business in the building occupied by Projex, a construction company, breaking the lock to gain entry. The door had been secured by staff at the end of the working day, on 13 September 2021. Mr Smith took a number of items, including a pair of Apple AirPods (wireless Bluetooth earbuds designed by Apple), a garage remote, a timelapse camera and keys to the Projex site. He also took a large wheel-based skip bin, which he used to carry away the items. The taking of these items, however, has not been the subject of any charge.
Mr Smith then entered the adjacent premises of another business, a provider of building services. In order to access the premises, Mr Smith damaged the fire door. While inside he searched through the premises, including opening drawers. He ransacked the premises, including throwing items across the room. He took many items, including iPads, televisions, mobile phones and vehicle keys. He placed them in the skip bin taken from the other premises and left at about 12:12 am, as shown on the CCTV, which police later inspected. He drove away in his father's car.
The total value of the property stolen from the second burglary was not given in evidence, but the Information to which Mr Smith pleaded guilty, thus accepting the facts alleged, averred that the value was $22,315. There was evidence, however, of the cost of installing audio visual equipment, said to be replacement, in the premises where the second burglary was committed and which he had ransacked. The evidence did not show that any of the audio visual equipment in the premises had been damaged. This may have been an upgrade thought necessary as a consequence of the burglary, nevertheless, the cost was $9,278. This must, given the lack of evidential clarity, be approached with some caution.
These events were the basis for the charges of burglary and theft.
The Information referred to the dates of these offences as 14 September 2021. It appears, from the times, shown on the CCTV, however, highly likely that at least the first burglary occurred on 13 September 2021 and the second probably also on that date, but it is possible, though unlikely, that he could have broken the fire door, entered the premises, searched, “completely” ransacked the premises, collected together the stolen items and left, all in 12 minutes or less. It seems likely that the events occurred between 13 and 14 September 2021.
The Court proposed to amend the Information in the same way as it could an indictment: R v Hancock [2021] ACTSC 52 at [53]–[58]. An indictment can be amended at any time during a trial: R v Bo [2014] ACTSC 287. That can even be after conviction: R v Fahey & Ors [2001] QCA 82; 1 Qd R 391. While the date is only a particular of the offence, a change will, other than in special circumstances, not mean that a different offence is alleged: Chaudhary v Ducret (1986) 11 FCR 163 at 173. Of course, an amendment should not be made where a party would be prejudiced: Gillard v The Queen [2013] ACTCA 17. See also R v Girvan (No 2) [2013] ACTSC 138 at [28]–[47].

The parties were notified of the issue and neither objected to the amendment, which will be made.
On 13 September 2021, police had spoken to Mr Smith's father, who had reported the theft of his motor vehicle and were told by him that it was actually Mr Smith who had stolen it. It was the vehicle used in the commission of the burglaries. Later, on 16 September 2021, police, with the consent of Mr Smith's parents, searched the home where Mr Smith lived with them and located items stolen from the businesses which Mr Smith had illegally entered. He had had no authority to enter the any of the business premises. It is assumed that all the property was recovered and returned to the businesses. The evidence did not suggest otherwise.
Between 12:00 am and 3:00 am on 17 September 2021, Mr Smith entered the premises of a company that provides construction and project management. The premises, also in Lonsdale Street, Braddon, had been securely locked the evening before. Mr Smith had no authority to enter the premises.
He went to the rear of the premises and removed a number of tools, which he placed in his backpack. He also removed the content of a first aid kit, which he put into a toolbox. He then removed two other toolboxes and put them outside the rear of the premises.
He left the premises about 3:00 am, but, as he was walking down Lonsdale Street, he was approached by police officers on patrol. At the time, a public health direction, made to enforce government restrictions to address the spread of the COVID-19 virus, was in place, requiring people not to leave their homes without a valid reason. Mr Smith could not explain what legitimate purpose he had to be out at that time.
Police also cautioned Mr Smith about burglaries that had been committed in Lonsdale Street and Mr Smith immediately bent over and ran from the police, before being arrested about 50 metres down the road. He was searched and police located a set of keys that had earlier been taken from the second premises where he had committed the burglary on 13 and 14 September 2021. He was arrested and taken to the ACT Watchhouse. When searched, he was found to have in his possession the property stolen from the third burglary, later identified as such by employees of the business.
The value was not subject of any evidence but, again, the charge of theft averred that it was valued at $5,350 and Mr Smith pleaded guilty. As, when he was searched, the items stolen found on him, they were, it must be assumed, returned to the owner.
These events led to Mr Smith being charged with burglary and theft. At the time of these offences Mr Smith was subject to a Good Behaviour Order, made for 24 months when he was convicted on 28 January 2020 for an offence of common assault.
As noted above (at [21]), it is not clear when the proceedings were commenced, but a mention on 3 February 2022 in the ACT Magistrates Court led to him being granted bail, probably as a continuation of bail already granted. It also appears that he was under bail supervision by officers of ACT Corrective Services. The supervision included drug testing and, on 25 February 2022, police were advised that Mr Smith had tested positive for drugs in his system, contrary to a condition of his bail.
On 27 February 2022, Mr Smith was observed by police in Gungahlin. He ran from them, but the police caught up with him and they smelt a strong odour of cannabis emanating from a dark blue bag he was carrying. Mr Smith said that he and another male had cut fresh cannabis and that it was the property of the other male. He was arrested and taken to the Watchhouse, where the cannabis was shown to weigh 580 grams, that is well over the trafficable quantity of 300 grams (schedule 1, part 1.2, item 35).
This led to Mr Smith being charged with trafficking in a trafficable quantity of cannabis.

The proceedings

Partly because of the number of offences committed at various times, the proceedings were somewhat protracted and different offences were, up to the first half of 2022, still being dealt with in two Courts.
Mr Smith was arrested first on 17 September 2021 and charged with the first two of the burglary offences. He was remanded in custody. He did not enter a plea at that stage. On 15 October 2021, however, he was granted bail. On 26 September 2021 he was charged with the third burglary and the second offence of theft, but his bail continued. Mr Smith's lawyers made representations to the Director of Public Prosecutions about the offences. On 14 January 2022 he entered pleas of guilty to all the offences with which he had then been charged and on 21 January 2022 he was committed for sentence to this Court. The summary offences were transferred as related offences. No prosecution Brief of Evidence had to be prepared.
The proceedings for the drug offences of 5 May 2021 were commenced by summons on Information on 19 January 2022, returnable on 2 March 2022, but were mentioned in Court on 28 February 2022. Mr Smith was charged with trafficking in cannabis on 15 March 2022, when he pleaded not guilty to that and the other drug offences. Also, further representations were made to the Director of Public Prosecutions.
The prosecution did prepare a Brief of Evidence and proceedings were, on 14 June 2022, listed for a Criminal Case Conference. That did resolve issues in dispute between the parties.
Accordingly, on 29 June 2022, Mr Smith pleaded guilty to all these charges and was committed to sentence for this Court. The summary offences were transferred as related offences. Bail continued, but, on 4 June 2022, Mr Smith was arrested for not reporting to a designated police station and was refused bail. He was remanded in custody.
On 30 September 2022 he was again granted bail, on strict conditions, including that he not leave his place of residence except in the company of one of his parents. His parents gave an undertaking that if he left his place of residence or, when outside it in their company, he left their company, they would advise the Australian Federal Police.
Accordingly, Mr Smith has been in custody for 148 days on the various charges. This pre-sentence custody must be taken into account and the Court will do so.

The offences

Section 33(1) of the Sentencing Act sets out the factors which a court, when sentencing an offender, must consider, so far as it knows them. Unsurprisingly, the first of these listed are the nature and circumstances of the offence or offences.
Part of this, of course, are the facts of the offences, which are set out in the Court's findings above. Then there are a number of other matters, foremost among them being the maximum penalty for each offence. The High Court has made it clear that this must be considered because it is the maximum penalty prescribed by the legislature, but it also provides a comparison, when considered with all other relevant factors that are germane to determination of sentence, for assessing the relative seriousness of the offences. It provides a yardstick which, as the High Court indicated in Markarian v The Queen [2005] HCA 5; 228 CLR 357 at [10], is important.
Among the other relevant factors are the matters that the Courts have identified, over time, to assist in the assessment of the seriousness of a particular offence. These factors indicate what a Court considers will be aggravating or mitigating factors of the offence as actually committed, for many offences can be committed in a very wide variety of ways and in a wide variety of circumstances. These must also be considered.
Burglary is an offence against s 311 of the Criminal Code 2002 (ACT), which sets a maximum penalty of 14 years imprisonment, or a fine of $224,000 or both.
A summary of the relevant factors that the Courts have indicated are appropriate for consideration of the seriousness of the offence has been set out in R v Hancock at [33]. It is not necessary to set them all out, but only to refer to the ones applicable to these offences.
The target properties were commercial properties and so the burglaries were less serious than if they had been residential properties, but they are serious, of course, nevertheless. There was some damage caused on entry, though the evidence of this was very limited in each case. In one case, there was damage inside the premises, by ransacking and throwing items around, rendering the offence a more serious one. There were, however, no occupants present in either of the premises and, in the circumstances, they were unlikely to have been there.
So far as the evidence goes, the properties had not been targeted before. Interestingly, they were all premises of businesses in the construction industry, but little can be inferred from that. In particular, little evidence was available to suggest that there was any particular planning of the offences. All the premises had street frontages, though Mr Smith did know that there was a back alley which gave access to the premises in the first two burglaries.
He told the author of one of the Suitability Assessments that he had committed the burglaries because of “his use of illicit substances and a desire to fund his addiction”.
All these factors must be considered in developing the synthesis that will be the sentence.
Theft is an offence prohibited by s 308 of the Criminal Code and renders Mr Smith liable to a maximum penalty of 10 years imprisonment or a fine of $160,000 or both. Again, relevant factors have been established in various Court decisions. The most relevant matter is the value of the property taken: see R v McMahon [2014] ACTSC 280 at [94]–[95]. It is also relevant that it is associated with a burglary which, ordinarily, requires a consideration of concurrency, as explained in the Attorney-General (SA) v Tichy (1982) 30 SASR 84 at 92–3.
There are other considerations than monetary value. These may include sentimental value, which is unlikely here, or the inconvenience caused by the loss: see R v Forrest (No 2) [2019] ACTSC 83 at [23]–[24]. Again, there is little direct evidence about this, but the kind of equipment required for such a business, as well as keys, would likely fall into this category. The value of the property is considerable, but all of this must be balanced with the fact that the property was recovered, though, again, the evidence is unclear as to whether all of it was recovered, but the inference is that at least a very substantial portion, if not all, was recovered.
Possession of stolen property is an offence contrary to s 324(1) of the Criminal Code, for which the legislature prescribes a maximum penalty of six months imprisonment or a fine of $8,000, or both.
Again, the value of the property is relevant. Here, the property was a set of motor vehicle keys. It was part of the second burglary and theft, so a high degree of concurrency is required in the sentence. Keys, of course, can have a significant inconvenience value if stolen.
Failure to comply with a public health direction is prohibited by s 120(4) of the Public Health Act 1997 (ACT) and it attracts a maximum penalty of a fine of $8,000. Such directions are obviously in the public interest, to prevent the spread of a significant disease with mortality as well as workforce disruption: see Johnson v Vander Sanden [2021] WASCA 27 at [2]. The circumstances are relevant and it is a more serious offence if it is a deliberate one and a substantial defiance of the direction: R v Montgomery [2022] ACTSC 291 at [42]–[47]. The breach appears to be that he was outside when required to be at home. Given the hour, about 3:30 am, the only thing that can be said is that he was most unlikely to come across many, if any, members of the public. It would, however, have been more serious were Mr Smith to have been infected with COVID-19: R v Fleury [2022] ACTSC 103 at [61].
Trafficking in a trafficable quantity of cannabis is proscribed by s 603(5) of the Criminal Code, which sets a maximum penalty of 10 years imprisonment or a fine of $160,000, or both. It is, thus, a serious offence.
Trafficking in a controlled drug other than cannabis, namely methamphetamine, is also proscribed by s 603(7) of the Criminal Code, for which the maximum penalty is also imprisonment for 10 years, or a fine of $160,000 or both. Both offences are similar with the same maximum penalties and generally the same principles apply. Those principles were set out in Bui v The Queen [2015] ACTCA 5 at [41]. Again, it is unnecessary to set them all out there and reference will only be made to those that are relevant.
As for the cannabis trafficking offence, Mr Smith did not seem to have been, on the evidence, a particularly significant participant in any substantial operation. His explanation is that he and another male had just cut the cannabis, that it was owned by the other male and he was just concealing it for that other male. There is no evidence of his having any particular significance in a drug distribution ring. Such a lesser role is accepted by the Crown. This does not negate the fact that such offences have serious consequences for the community. The weight of the cannabis is relevant, but not of chief importance. The cannabis was wet and just cut; a dry weight would obviously be less and the useable cannabis would also be less. Nevertheless, it was, at 580 grams, nearly twice the minimum trafficable quantity of 300 grams.
As to the question of motivation for the offending, there is no evidence in particular that any supply to another would be for Mr Smith's profit. There was no evidence as to the other male’s part in the operation, but Mr Smith says that he had engaged in the offence to support his drug dependence.
As to the methamphetamine trafficking offence, he was, again, holding it for another and so, as accepted by the Crown, participating in a lesser role. Again, the offences are, nevertheless, serious, as the effect of such use on users and, indeed, the wider community, is significantly destructive.
Here the weight and purity of the methamphetamine were significant, being nearly three and a half times the minimum trafficable quantity and a relatively high level of purity. These suggest that the person for whom Mr Smith was holding the drug was relatively significant in a distribution network.
Again, Mr Smith's motivation seems to have been the need to feed his habit.
Possession of a drug of dependence, being heroin, is proscribed by s 169(1) of the Drugs of Dependence Act 1989 (ACT) and attracts a maximum penalty of two years imprisonment or a fine of $8,000, or both. There was nothing particularly aggravating about this offence.

Subjective circumstances

Also required to be considered by a Court sentencing an offender are the personal circumstances of the offender. These are addressed by a number of paragraphs in s 33(1) of the Sentencing Act.
Mr Smith was born 29 years ago, the second child of his parents. He was born in Perth, Western Australia, but when he was three years old his parents moved to Canberra and he has lived here ever since. He has a good relationship with his parents and his older sister. His parents have permitted him to reside at their home while on bail recently and are prepared to have him live there when released. He had a good home life.
He went to school in Canberra but for a while was bullied and was involved in fights, leading to suspensions on five occasions. He generally enjoyed school. He was, for a time, in a remedial class and it was understood that he suffered from Attention Deficit Hyperactivity Disorder (ADHD). When starting Year 11, however, he found himself able to choose his subjects and began to thrive, ending at the top of his class.
He travelled for a year after leaving school and then commenced study for a Bachelor of Medical Science degree. After two years he decided that that was not for him and he transferred to a software engineering course, but did not finish that either.
Mr Smith has worked since he could do so in various retail jobs, hospitality and for a national supermarket for five years. He worked as a functions coordinator for a law firm and as a bar manager for three years. At one stage, he worked laying carpets and, more recently, for a roofing contractor, with an expectation that he may be able to resume that work when he can.
Mr Smith commenced “dating” when he was 11 years old and has had four significant relationships. The most recent resulted in the birth of a son in 2021. He and his partner are separated, it appears, because of his drug use, but he still has regular access with his son. He is not currently in a relationship.
Mr Smith has had a number of accidents which have required significant treatment. He had a BMX bike accident in 2011, when he was 18 years old, and broke his ankle, which required surgery. He later had an appendicectomy. He had another motorcycle accident in 2013, which required surgical attention for his knee.
Most significantly, he had a serious motorbike accident in March 2019, in which he fractured his right leg. He required surgical intervention, which also resulted in a right finger amputation and other serious surgery. This was a huge turning point for him and when a friend died, about 10 months later, his life disintegrated. He continued to suffer pain and, ultimately, turned to heroin to ease the pain, or methamphetamine when heroin was unavailable.
Mr Smith has sought help for his mental health. While he was, it appears, diagnosed as a child with ADHD, that does not seem to be a current diagnosis, though it has been suggested that that may need further consideration. He was a happy child but, more recently, has had significant challenges.
The material before the Court suggests that Mr Smith has also been diagnosed, at various times, with Post-Traumatic Stress Disorder, Borderline Personality Disorder, Antisocial Personality Disorder, Conduct Disorder and Oppositional Defiant Disorder.
Most recently he has been diagnosed, by Dr Bruce Stevens, forensic psychologist, with a major depressive disorder, Post-Traumatic Stress Disorder and Opioid Use Disorder. Dr Stevens also considered that a further assessment for ADHD would be desirable.
He has had mental health treatment, but there were suggestions that he had not engaged with a psychiatrist or a psychologist who had been consulted. He has been prescribed duloxetine while remanded in custody. This drug is used to treat depression and anxiety. He has also recently been prescribed opioid maintenance therapy. He has had suicidal ideation and made efforts, on a number of occasions, to try that, without success.
Mr Smith started smoking cannabis when he was 12 years old. By the age of 14, he was smoking at least once every two months. He ceased for a time, but then resumed using and between ages 17 and 25 was smoking every day. He did, however, stop consuming cannabis when he was 25 years old.
He took up smoking tobacco when he was 19 and currently smokes 20 to 25 cigarettes a day.
He first tried heroin when he was 27 years old as he was withdrawing from his prescribed pain medication for the consequences of the motorcycle accident. It alleviated the symptoms and has become important for him. When this happened, and when he could not access heroin, he then turned to methamphetamine and began to use both regularly. Between 27 and 28 years old he would consume about 0.8 grams of heroin and $50 of methamphetamine a week. He later transitioned to intravenous use of both and that was more cost effective. At the peak, he would use 1.75 grams of heroin or 1 gram of methamphetamine in a two to five day period. He has used MDMA/Ecstasy, psylocibin, mushrooms, LSD and cocaine, on one occasion each, but not since.
Mr Smith did attempt home detoxification, which was unsuccessful and, in September 2020, he started on a methadone maintenance program. When he started, he was still using methamphetamine. By January 2021 and in February 2021, he missed 12 days of medication. This required him to start the program again, but he lapsed. In July 2021 he tried to recommence with depot buprenorphine injections, but was unsuccessful until he was detained in the Alexander Maconochie Centre in September 2021, when he restarted and remained on the program. He also said that he attended some Narcotics Anonymous meetings during the COVID lockdown, which he found useful.

Mr Smith does not have a long Criminal History. [Redacted for legal reasons].
[Redacted for legal reasons].
His first offence as an adult was committed on 12 December 2014 and thereafter he has committed only six offences, being offences of minor theft, drug driving, driving with a prescribed concentration of alcohol and two offences of common assault. These current offences are much more serious than anything on his adult record.
Dr Stevens concluded that Mr Smith was affected by heroin at the time of his offending, which would have affected his decision making, impaired his judgement and would have made it significantly difficult for him to make calm and rational choices at that time.
Dr Stevens also noted that Mr Smith expressed remorse, clearly understanding the impact of his behaviour on others and Dr Stevens was satisfied he was genuine in this expression. He also noted that he was seeking restorative justice.
Mr Smith's mother wrote feelingly, as one would expect of a mother, but quite thoughtfully, about her son. In recognising the relationship and making appropriate allowances, her comment was helpful to the Court. She noted that Mr Smith was, “no longer the person he was before the accident”. She confirmed that he felt shame and expressed deep regret and would wish to apologise to his victims personally. She also expressed anger at the path he had taken, but understood the issues he had to confront. She expressed the view that her son needs support to achieve the management of his challenges and that she knows that he knows that he wants the support to do so.
Mr Smith has been assessed as suitable for admission to the residential drug rehabilitation facility conducted as a therapeutic community by Karralika Programs Inc, an agency described in R v Sladic [2014] ACTSC 56 at [23] and R v Kristiansen [2015] ACTSC 159 at [12]–[14].

Sentencing Practice

In order to ensure the important value of consistency in sentencing, which is an aspect of fairness, the Court sentencing an offender must consider current sentencing practice: s 33(1)(za) of the Sentencing Act.
This can be done, to a limited degree, by accessing the records of the ACT Sentencing Database, a very valuable resource. There are, however, considerable limits in such records, though they still provide information, especially if treated carefully.
Current sentencing practice can also be accessed through the sentencing remarks of the Courts sentencing offenders, or hearing appeals from sentences. Links are sometimes available, through the Database, to those sentencing remarks so that the readers may refer to them. In this case, both parties provided some references to cases said to be comparable and of assistance.
Briefly, the database shows that of the 646 offences of burglary dealt with in the Supreme Court, approximately 96% of sentences were of terms of imprisonment and, of these, 80% were of full-time imprisonment. Of those, 26% were of terms of less than six months imprisonment and 32% were of sentences between 13 and 18 months imprisonment.
Ms Musgrove, in her written submissions on behalf of Mr Smith, referred to three decisions as comparable and of assistance to the Court: R v Reid [2021] ACTSC 72, R v White [2014] ACTSC 158 and R v Pocock [2015] ACTSC 77.
In R v Reid, Mr Reid had a supportive upbringing, but a history of drug abuse and alcohol. He entered commercial premises and stole a bobcat and some tools worth about $100,000. He had a Criminal History. For this burglary he was sentenced to six months imprisonment.
In R v White, Mr White smashed a glass door to enter a used car yard and stole a television and an aerial. He had significant history of drug and alcohol use and Post-Traumatic Stress Disorder. He has a significant Criminal History. He was sentenced to 15 months imprisonment for the burglary offence, but the sentence was suspended with a two year Good Behaviour Order.
In R v Pocock, Mr Pocock was sentenced for four burglaries and four thefts. He accessed the Tuggeranong Hyperdome and, on three occasions entered electronic stores and stole items worth about $16,000. He had a chaotic upbringing and a significant history of drug and alcohol abuse and had used the items stolen to fund his drug use. The Court made a Deferred Sentence Order so that he could undertake a program at Karralika Programs Inc and, having done so successfully, he was sentenced to a total of three years imprisonment, suspended with a two year Good Behaviour Order.
As for trafficking in illegal drugs, the Database shows that for drugs other than cannabis, there are 108 cases in the Supreme Court, of which 94% resulted in sentences of imprisonment and 64% of full-time imprisonment of between one month and six years, but the majority between six months and 24 months.
Only two cases were recorded for trafficking in cannabis, which severely limits the value of the information, both resulting in suspended sentences.
Mr Maher, in his supplementary written submissions for Mr Smith, provided reference to eight decisions: R v Visser [2016] ACTSC 261, R v ER [2022] ACTSC 112, R v Tran [2014] ACTSC 368, R v Hyde [2020] ACTSC 301, R v Ebbott [2019] ACTSC 379, R v Conomos [2019] ACTSC 183, R v Johnson [2017] ACTSC 280, R v MacKinder [2021] ACTSC 176. She also referred to R v Khoder (No 2) [2020] ACTSC 76, R v Cichacz [2022] ACTSC 28, R v Brown [2019] ACTSC 59 and R v Hyde [2017] ACTSC 337.
In R v Visser, Mr Visser was found guilty, after a trial, of trafficking in 10.291 grams of methamphetamine, but his role was unclear. He had a difficult upbringing and did not have a drug use problem. He was sentenced to 12 months imprisonment, to be served by an Intensive Corrections Order. This was not closely comparable with the current case.
In R v ER, the offender pleaded guilty to trafficking 21.63 grams of methamphetamine for his own needs to feed his drug dependence. He had no criminal record and was sentenced to nine months and 15 days imprisonment.
In R v Tran, Mr Tran pleaded guilty to trafficking 9.505 grams of methamphetamine, but was making a profit from it beyond what was necessary for his own drug habit. He was involved in an ongoing supply. He was subject to a Good Behaviour Order at the time of offending. He was sentenced to 16 months imprisonment.
In R v Hyde, Ms Hyde pleaded guilty to trafficking 33.452 grams of methamphetamine. She was more than a street level dealer, but trafficked to feed her own habit. She had a Criminal History and was on conditional liberty at the time of the offending. She had made progress in rehabilitation and was sentenced to 13 months and 14 days imprisonment, with a 15 month Good Behaviour Order.
In R v Ebbott, Mr Ebbott pleaded guilty to trafficking 55 grams of methamphetamine. He had regularly driven to Sydney to source the drugs. He pleaded guilty late and had a Criminal History. He was sentenced to 19 months imprisonment to be served by an Intensive Corrections Order.
In R v Conomos, Mr Conomos pleaded guilty to trafficking 319 grams of methamphetamine, by making his premises available for storage and concealment of drugs and allowing his co-offender to traffic from there. He was employed and had no significant Criminal History. He was sentenced to 17 months imprisonment, to be served by an Intensive Corrections Order.
In R v Johnson, Mr Johnson pleaded guilty to trafficking 173 grams of heroin. His trafficking was regular and ongoing and his plea was a late one. He was sentenced to 27 months imprisonment, to be served by an Intensive Corrections Order.
In R v MacKinder, Mr MacKinder was a courier delivering 503.076 grams of methamphetamine. He was pro-social with no prior convictions, as couriers often are, and was engaged in the enterprise to raise money to pay a debt. He was sentenced to 30 months imprisonment to be served by an Intensive Corrections Order.

Conditional Liberty

Conditional liberty is when a person is involved in the criminal justice system and accused of a crime, or convicted of a crime, in cases where the person would be liable to be detained in custody but is, instead, released back into the community on conditions, usually at least, to be of good behaviour (such as by not committing further offences).
This is the trust that the Court places in the person in order that they not be detained. This most commonly occurs when a person arrested for an offence is granted bail, or when a person convicted of an offence is sentenced to a Good Behaviour Order.
On 28 January 2020, Mr Smith was convicted of a common assault with a woman with whom he had been in an intimate relationship for three years. He was sentenced to a Good Behaviour Order for two years from that date. Thus, the offences of burglary, theft, failure to comply with a public health direction, possession of stolen goods, trafficking in methamphetamine and possession of heroin all, on conviction, would constitute a breach of this Order.
Such a breach does not increase the seriousness of the offence or increase the offender's moral culpability, as explained in Boney v The Queen [2015] NSWCCA 29 at [18]–[20]. See also Sharma v The Queen [2017] NSWCCA 85 at [66], Daher v The Queen [2018] NSWCCA 287 at [55] and Beniamini v Craig [2017] ACTSC 30 at [114]–[115].
As explained in R v Matthews [2020] ACTSC 364 at [35]–[43], there are two consequences of such a breach. In the first place, it does constitute an aggravating feature which will require a more severe sentence. It is a betrayal of the trust placed by the Court in the person to be at liberty and not detained in custody.
Secondly, the Court finding the person guilty of an offence which breaches the conditional liberty must address the breach. In the case, as here, of a Good Behaviour Order, that requires the Court, in relevant circumstances, to cancel the Order and re-sentence the offender. See s 108 of the Crimes (Sentence Administration) Act 2005 (ACT).
While, in this case, the Good Behaviour Order has expired, curiously it can, it appears, still be cancelled and Mr Smith re-sentenced: R v Munro [2016] ACTSC 222 at [26].
It is clearly relevant and desirable, however, that, when the Court, Judge or Magistrate, addressing the breach offence is not the one who imposed the Good Behaviour Order, they have all relevant details of the offence for which the Order was originally imposed.
Here, the Crown has included in the Crown Tender Bundle the bench sheet and the police Statement of Facts for the original offence. In brief, Mr Smith and his then partner were at The Canberra Hospital, where she was collecting Mr Smith. As they were walking to the partner's vehicle, Mr Smith became verbally aggressive as his partner had not brought him any cigarettes. He shouted at her, which caused a hospital guard to intervene.
When they got to the car and drove off, the partner had to brake suddenly, which caused discomfort to Mr Smith's leg, which had been the subject of surgery. He became more aggressive. His then partner began to record the incident on her phone, which caused Mr Smith to become more aggressive. He then grabbed her shoulder, his fingers digging into her skin and causing her pain. He pulled her head back, causing her more pain and she screamed. They then argued for a time. She only reported the matter six months later, because of her not entirely unfounded fear that nothing would happen.

Consideration

The most difficult task of sentencing involves the synthesis of the various factors and the law, being both a statutory and common law requirement, calling for the Court to synthesise these matters into the imposition of one sentence. Often, these factors point in different directions and the instinctive synthesis is often the Court's assessment of how the sentence will achieve the ultimate object of the protection of the community, as pointed out in Channon v The Queen (1978) 33 FLR 433 at 437.
This is much helped by identifying the purpose or purposes for which the sentence is being imposed. In this Territory, that is much assisted by the legislative provisions in ss 6 and 7 of the Sentencing Act. Thus, the purpose of the sentence in this case may be said to include the following.
As offences such as burglary, theft and trafficking in drugs are serious threats to the peace and good order of the community, punishment must be an element of the sentence. This will impose a penalty on the offender for the breach of the societal standards and will reinforce the need for compliance with them, thus declaring the seriousness of the offence.
Such a sentence will deter both the offender and others who may be minded to commit such offences from doing so. It will also denounce the conduct, which is an important element of a sentence.
The sentence will hold Mr Smith accountable for his offending and recognise the harms done to the victims.
Nevertheless, rehabilitation is also an important sentencing purpose, especially where the offender has, as Dr Stevens opines, a good prospect of succeeding in reform.
Mr Smith has shown remorse. This is amply demonstrated on the evidence. It is also proved, to a degree, in the entry by him of pleas of guilty. All were entered in the Magistrates Court, a number without requiring the prosecution to prepare a Brief of Evidence.
As well as showing remorse, his pleas have utilitarian value to the administration of justice and this is recognised by the discretion granted to the Court to discount a sentence for this purpose. Though the case against Mr Smith was strong as he was captured on CCTV committing the burglaries and theft, he was found with the drugs on his person or in his car and the stolen goods were recovered from his home, it may not have reached the level of being overwhelming, but it was certainly very strong and limits the discount that is appropriate.
On the other hand, Mr Smith was on conditional liberty at the time of committing these offences. As noted above (at [111]–[120]), this requires a more severe sentence. It is noted that he had earlier breached the Order and no action was taken. Given that the Order has expired, the only appropriate option is to re-sentence Mr Smith. Given his commitment to and steps taken towards rehabilitation, a custodial sentence is not appropriate.
There is no doubt that Mr Smith's mental health is an issue that needs to be taken into account. While it does not appear to meet the level required for significant moderation of sentence, such as explained in R v Verdins [2007] VSCA 102; 16 VR 269 at 276; [32], it clearly has affected his capacity for rational judgement, as explained by Dr Stevens.
It is also relevant that, despite his early experimentation with illicit drugs, his current dependence has been a result of the surgical intervention following his motorcycle accident. This is a very relevant factor. See Talbot v The Queen (1992) 34 FCR 100 at 105.
Mr Smith is assessed as having good prospects of rehabilitation. This is always an important consideration as, if achieved, it is a way in which the Court can meet the requirements to protect the community. See Hogan v Hinch [2011] HCA 47; 243 CLR 506 at 573; [32] and R v Blaskovic [1999] FCA 1306 at [26]–[27].
Mr Smith is assessed by Dr Stevens as a good prospect for rehabilitation. Dr Stevens identified significant and relevant strengths, including a stable and very supportive family, the absence of dysfunctional generational issues, high school education and three years of tertiary study and a reasonable work history. He has also been able to abstain from alcohol after four years of heavy use and has had some psychological treatment, which has led to insight. He is also motivated.
Unfortunately, this has been somewhat marred by his use of drugs when most recently on bail. He did admit to consuming a leftover small amount of methamphetamine, but confirmatory tests have shown some unacknowledged heroin. This is, perhaps, unsurprising for someone who is about to be sentenced and this does not deny the strengths identified, which will assist him in a properly supported rehabilitation regime, rather than the “cold turkey” approach (R v Coleman (No 3) [2021] ACTSC 357 at [22]) of his recent bail situation.
Although there are not personal victims of these crimes, businesses, such as those whose premises Mr Smith burgled and from whom he stole items, are victims. Indeed, the consequence is that they need to call on insurance for losses and this affects the whole community in premium rises. In addition, the businesses must recoup their losses, and this results in increased prices payable by their customers.
Further, there are, of course, victims of drug trafficking for, as Mr Smith himself is, they become dependent and this significantly affects their lives and the lives of their family and friends. It also often leads to other crimes, especially of dishonesty, as here, and that makes other victims in the community.
In its written submissions, the Crown faintly suggested that a Reparation Order would be sought and gave some analysis of what it said was Mr Smith's financial situation. That was, however, apparently not pressed and, in any event, the material available for consideration of such an Order was simply not available.
There is no doubt, despite the relationship between, for example, Mr Smith and the asserted owners of the drugs that he has been charged with trafficking, Mr Smith is accountable himself for the offences. He has, by his plea of guilty, also accepted that.
Accordingly, in order to determine a just and appropriate sentence, the Court has taken into account all the matters set out in these remarks, which include the nature and circumstances of the offences, their effect on the victims, though this could only be generally assessed by the Court as there is little direct evidence, and also includes Mr Smith's personal circumstances. All the other matters referred to here have been taken into account.
Having regard to all these matters and having considered all the circumstances and alternatives, it is clear that there must be a sentence of imprisonment: see s 10 of the Sentencing Act.
There are, of course, ten offences. A sentence must be imposed on each of them and careful consideration has been given to the length of each sentence, so as to ensure it is just and adequate and not more than that (Thorn v Laidlaw [2005] ACTCA 49 at [32]), and also that Mr Smith is not punished twice for the criminality he has committed.
Consideration also has to be given to whether the sentences should be partly or wholly concurrent, because, for example, they are part of the same course of conduct or contain common elements. This has been referred to above (at [56]), in the relationship between the first two burglaries and between the associated theft offences and also in the relationship between the relevant trafficking and possession offence.
The length of the total term of imprisonment arrived at has also been carefully considered to ensure that the important principle of totality is respected and that the total sentence adequately reflects the criminality of the offences committed, but no more than that, and that the total sentence is not excessive, but will leave open the realistic prospect of reform and maintain the hope required for Mr Smith to take an effective part in the community and realise his aims when he is released.
This may result in what is seen as some leniency in that some sentences are made concurrent, but while the total criminality of Mr Smith is an important factor, his growing awareness of the need for rehabilitation and the small steps he has taken already are also important, as are the circumstances of his medical introduction to current drug use. Thus, it requires a sentence proportionate to his culpability for the crimes, the effect on the community, but also Mr Smith's subjective circumstances and the value of reform, to both the community and to himself.
Mr Smith has spent 148 days in pre-sentence custody. This must be taken into account and that will be done by backdating the start of the sentence, as is possible under s 63 of the Sentencing Act.

Sentence

[His Honour then spoke directly to the offender]

Mr Smith, please stand.
1.    The Informations for the first two offences of burglary and the offence of theft are amended by the deletion of “on 14 September” and substitution of “between 13 and 14 September”.
2.    You be convicted of the first offence of burglary and sentenced to 11 months imprisonment, commencing on 23 May 2022 and ending on 22 April 2023. Had you not pleaded guilty, you would have been sentenced to 15 months imprisonment.
3.    You be convicted of the second burglary and sentenced to 12 months imprisonment, commencing on 23 October 2022 and expiring on 22 October 2023. That is cumulative as to six months on the sentence for the first burglary. Had you not pleaded guilty, you would have been sentenced to 16 months imprisonment.
4.    You be convicted of theft and sentenced to 12 months imprisonment, commencing on 23 February 2023 and expiring on 22 February 2024. That is to be cumulative as to four months on the sentence for burglary. Had you not pleaded guilty, you would have been sentenced to 16 months imprisonment.
5.    You be convicted of the third offence of burglary and sentenced to 12 months imprisonment, to commence on 23 November 2023 and end on 22 November 2024. That is to be cumulative as to nine months on the sentence for the charge of theft. Had you not pleaded guilty, you would have been sentenced to 16 months imprisonment.
6.    You be convicted of the second offence of theft and sentenced to eight months imprisonment, commencing on 23 May 2024 and expiring on 22 January 2025. That is to be cumulative as to two months on the sentence for the charge for burglary. Had you not pleaded guilty, you would have been sentenced to 11 months imprisonment.
7.    You be convicted of failing to comply with a public health direction and fined $250 with nine months to pay.
8.    You be convicted of possession of stolen property and sentenced to two months imprisonment, to commence on 23 November 2024 and expiring on 21 January 2025. That is to be wholly concurrent with the sentence of theft. Had you not pleaded guilty, you would have been sentenced to three months imprisonment.
9.    You be convicted of trafficking in a trafficable quantity of cannabis and sentenced to 10 months imprisonment, commencing on 23 September 2024 and expiring on 22 July 2025. That is to be cumulative as to six months on the second sentence for theft. Had you not pleaded guilty, you would have been sentenced to 14 months imprisonment.
10. You be convicted of trafficking in methamphetamine and sentenced to 12 months imprisonment, to commence on 23 April 2025 and expire on 22 April 2026. Had you not pleaded guilty, you would have been sentenced to nine months imprisonment.
11. You be convicted of possession of heroin and sentenced to three months imprisonment, commencing on 23 February 2026 and expiring on 22 May 2026. That is to be cumulative as to one month on the sentence for trafficking in methamphetamine. Had you not pleaded guilty, you would have been sentenced to four months imprisonment.
12. The Good Behaviour Order made on 28 January 2020 be cancelled.
13. The conviction for common assault be confirmed.
14. You be required to sign an undertaking to comply with the offender's good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act, for two years from today, 18 October 2022 until 17 October 2024.
You may be seated.

Drug and Alcohol Treatment Order application

While a term of imprisonment has been imposed, it is still necessary to consider how that is to be served. As it is for a total period of four years imprisonment, it could require a non-parole period to be set unless the Court considers it should not: s 65 of the Sentencing Act.
There are, however, other alternatives, namely, a suspended sentence with a Good Behaviour Order, a Treatment Order or an Intensive Corrections Order. For the latter two, it is desirable that the sentence is imposed first, discretely, as the length must not be affected by how it is to be served: R v Slattery [2021] ACTSC 154 at [3].
Mr Smith has sought that he serve the sentence by a Treatment Order. Given the assessment of his readiness for and capacity to undertake rehabilitation, that is an appropriate option.
In order to determine this, the Court must determine whether he is eligible and, if so, whether he is suitable. The eligibility requirements are set out in s 12A and s 80S of the Sentencing Act. The requirement in s 80S is that he be found suitable, so it is appropriate to deal with the other matters first.
Mr Smith has pleaded guilty to all of the offences with which he has been charged, all of which, save for the offence of failing to comply with a public health direction, are eligible offences. Since, for the latter offence, a fine has been imposed, that is no bar to his eligibility for a Treatment Order. He has been sentenced to 12 months imprisonment for the second burglary and, together with the sentences for other offences, to a total of four years imprisonment for all the eligible offences. These sentences are within the eligibility requirements of a minimum period of one year imprisonment for the primary offence and a maximum of four years imprisonment for the whole sentence, for the making of a Treatment Order.
Mr Smith is not subject to any other sentencing order within the meaning of s 12A of the Sentencing Act, since neither the fine nor the Good Behaviour Order are such orders. See s 12A(9) of the Sentencing Act.
The Suitability Assessments and the psychological report of Dr Stevens show that Mr Smith is currently significantly dependent on heroin and methamphetamine, with an opioid use disorder and a severe substance use disorder. Several unchallenged reports attest that his dependence substantially contributed to his offending behaviour.
Mr Smith has lived in Canberra for most of his life and there is no evidence to suggest that he will not live here for the next four years. Indeed, the evidence seems to be to the contrary.
Mr Smith has signed a form consenting to the making of a Treatment Order. His signing of the form confirms, as stated in it, that he has had sufficient information to make a balanced and voluntary judgment as to whether to give that consent, that he has had the opportunity to ask any questions about such an Order and that those questions have been answered. He appeared to understand the answers, as attested to in the Suitability Assessment.
Accordingly, subject to suitability, Mr Smith is eligible to have a Treatment Order made for him to serve his sentence.
The Suitability Assessments, prepared in the usual comprehensive, thoughtful and professional way, have recommended that Mr Smith is suitable for a Treatment Order. That is supported by the psychological report of Dr Stevens.
The recommendation is subject to him being admitted to a “structured residential treatment program”. A place at Karralika Programs Inc is available for him and it conducts such a program.
A Case Plan has been prepared carefully for Mr Smith and is clearly appropriate for him. He has, too, the support of his parents. There are currently facilities and arrangements available to administer the Treatment Order.
There are no reasons, based on those listed in Table 46K of the Sentencing Act, that would make Mr Smith unsuitable and there is no reason why the sentence of imprisonment should not be suspended so that the Treatment Order may be served.
Accordingly, it is appropriate that a Treatment Order be made. The fact that the sentence has started prior to today, as the sentence has been backdated because he has already served a period of the sentence in pre-sentence custody, does not prevent a Treatment Order being made: See R v Crawford (No 1) [2020] ACTSC 245 at [91]–[111].

Drug and Alcohol Treatment Order

[His Honour again spoke directly to the offender]

Mr Smith, please stand again.
14. A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 be made for you for two years from today, commencing on 18 October 2022 and ending on 17 October 2024, in respect of the primary offence of burglary of which you have been convicted and for which you have been sentenced to 11 months imprisonment.
15. The Order is extended to the other offences of burglary, theft, unlawfully possessing stolen property, trafficking in cannabis, trafficking in methamphetamine and possessing heroin, of which you have all been convicted and for which you have been sentenced and which are associated offences of the primary offence.
16. It be noted that the convictions and sentences imposed for the primary and associated offences have been recorded and are hereby incorporated into the Drug and Alcohol Treatment Order in the custodial part of the Order.
17. The custodial part of the Drug and Alcohol Treatment Order for the primary and associated offences is hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 from today, 18 October 2022, until 22 May 2026.
18. Under s 80ZA of the Crimes (Sentencing) Act 2005, you are required to sign an undertaking to comply with the offender's good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 from the day after the end of the Drug and Alcohol Treatment Order, 18 October 2024, until the end of the total sentence, 22 May 2026, with a probation condition that you accept supervision from the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking, or such lessor period as the person supervising you considers appropriate, and obey all reasonable directions of the person supervising you including as to urinalysis, counselling and treatment.
19. For the treatment and supervision part of the Drug and Alcohol Treatment Order:
a.The core conditions of the Order, set out in s 80Y of the Crimes (Sentencing) Act 2005, be hereby imposed;
b.You are to travel directly from this Court today to Karralika Therapeutic Community, conducted by Karralika Programs Incorporated at Isabella Plains, ACT, in the company of your parents and admit yourself to the residential drug rehabilitation program at that facility by 2:00 pm today;
c.You are directed to complete the residential drug rehabilitation program at Karralika Therapeutic Community, not to leave the facility until you have completed the program and to comply with all the directions of the person in charge of the program and all the rules of the program and the facility;
d.Should you leave or be discharged from the program before completing it, you are to report to ACT Corrective Services by 4:00 pm on the next business day, with a view to having your Drug and Alcohol Treatment Order reviewed;
e.You are to undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where you reside, with whom you associate and your attendance from time to time;
f.You are not to return a positive test sample under alcohol and drug testing; and
g.You are to comply with any direction of the Court from time to time about attendance at Court in person or by electronic means.
20. You are directed to appear by electronic means, in Court, on Friday 28 October 2022 at 12:30 pm.
21. You are directed to attend the Court Registry before you leave the Court precincts today to sign a sealed copy of this Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 for the period that the Order is in force.
Mr Smith, that is a lot of words, but most of it you will have understood because it is about you, what you did and your circumstances.
What I have said is that these were serious offences, and a lot of them, and they justify a serious sentence. Ordinarily, the community would require you to spend time in prison to show that these are completely unacceptable. I have sentenced you to four years imprisonment, but I do not require you to serve any further time in custody so long as you comply with the Treatment Order.
The Treatment Order is an opportunity for you, which I hope you will now take with both hands, to address the dependency on drugs which has spiralled your life out of control. If you want to get your life back together, if you want to have a good life, connect with and be a role model to your son, make other relationships which will be fulfilling, pay your parents back for what you have put them through, do the work that you clearly can do, as an employee and find that satisfying, then this is an opportunity.
The Court will support you in that. There are professional members of the team that supports the Court who will also support you in that. They have got wise advice and know where you can go to get help. Ultimately, however, only you can do this. It appears, from your history, that you have got the capacity and the strength, but you need to commit to it. It is going to be long and it is going to be difficult. Drug dependence is pernicious. It is difficult to get under control, but the experience of this Court is that it can be done. If you commit yourself to it, it will happen.
There are a few things that are really important. The first is honesty. You really need to start being honest. Not just with us. If you have taken some heroin, as the confirmatory suggested, tell the Court. The world will not collapse. That means that you might still go back to custody for some time, but if you show your commitment, if you do the right thing, if you are honest, then the Court can deal with you more appropriately.
The other thing, though, is that you need to be honest with yourself. It is very easy to say, “I did this, and it doesn't really matter”, or, “There's a reason why I did it, I'm stressed”. You really need to confront these issues if you are going to be strong enough to get through this process. You need to be honest with yourself and say, “That's wrong. Yes, I did it, I'm ashamed of that, but I can move on”. Confront that. Own your errors and do not allow them to be a barrier to your success. That is really important.
Secondly, commit to this program. Work hard. Karralika is not easy, but a number of people have gone through there are doing very well. There will be people who are doing it, from whom you can seek advice and who will give you assistance as to how to get through.
If it becomes difficult, if it becomes problematic, tell your Case Manager. You will have a Case Manager who will assist you and will be available. Come and tell the Court. You will see a lot of me in the next month or so, fortunately for you at Karralika it will be on AVL. If there are issues, let the Court know so that we can solve them before they become a problem and before you are discharged from the program or you run away.
Sometimes that happens, unfortunately. We are all human and we have all got limits. If it happens, do not just run away. Come back. I do not guarantee that it will all be okay. You may have to go to prison for a short period of time, seven to 14 days, to reset and to show that this is not appropriate. If it gets really bad, I might need to cancel the Treatment Order and send you to custody to serve the balance of the four years imprisonment. However, I can only find a way through it if you come back. If you run away and do not come back, then, almost inevitably, the Treatment Order will be cancelled and you will have to spend the rest of the time in prison.
What you need to do in that situation is to ring Corrective Services, you will have a Case Manager there and there will be a number to contact them, by 4:00 pm on the next day and then they will direct you to come back to Court and we can deal with the matter. You may need to go into custody, but you may not.
This is a real opportunity for you. You are really lucky with your history and with the support of your parents, but you need to repay them and this will be a method of doing that.
I will not see you this Friday, but I will see you the following Friday. You will come in, through AVL, from Karralika, and I will see you every Friday after that for a period of time and then fortnightly. We can see how things are going and, if there needs to be a correction, we can do that. If there are problems you can raise them, otherwise you can tell me how it is going and I am interested in what is happening and you can discuss that with me.
When you leave the Court today you must first sign the Order, which will be ready for your shortly at the Court Registry, and then you must go, with your parents, to Karralika. You have a letter which tells you what to do. Read it. Understand it. If you do not understand it, then ask because if you do not comply with what is required then there are consequences.
This is a real opportunity for you. Take it with both hands, make it work and in cooperation with the professional Treatment Team you can achieve that objective.
So, I wish you good luck, I seriously do. I always hope that those people I sentence to a Treatment Order will graduate, in due course, and we will give you a big cake and a big clap, but good luck.
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 his Honour Acting Justice Refshauge

Associate:

Date: 29 March 2023