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R v Steen

R v Steen

Case [2015] ACTSC 259 18 August 2015

Calculation of Sentence

Concurrent Sentences

Non-Parole Period

Criminal Law

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Steen
Citation:	[2015] ACTSC 259
Hearing Date:	31 July 2015
DecisionDate:	18 August 2015
Before:	Refshauge J
Decision:	1. Marshall James Steen be convicted of the offence of burglary committed on 29 June 2014. 2. Marshall James Steen be sentenced to imprisonment for two years and six months to commence on 24 October 2019; that is, to be cumulative as to six months on the sentence he is currently serving. 3. Marshall James Steen be convicted of theft on 29 June 2014. 4. Marshall James Steen be sentenced to imprisonment for 18 months to commence on 24 October 2019; that is, to be wholly concurrent on the sentence for burglary in order 2. 5. Marshall James Steen be convicted of minor theft on 29 June 2014. 6. Marshall James Steen be sentenced to three months imprisonment to commence on 24 October 2019; that is, to be wholly concurrent on the sentence for burglary in order 2. 7. A non‑parole period be set to commence on 8 July 2014 and to end on 23 July 2017.
Category:	Sentence
Catchwords:	CRIMINAL LAW – Jurisdiction, practice and procedure – sentence – burglary – theft – minor theft – extensive criminal history – long history of imprisonment – history of drug addiction – seeking rehabilitation – cancelation of non-parole period – calculation of non-parole period – no realistic prospect of payment of a compensation order
Legislation Cited:	Crimes (Sentencing) Act, ss 7, 33, 61(3), 65(3), 65(4), 66(2), 66(3), 66(4), 68, Pt 4.4 Criminal Code 2002 (ACT), ss 308, 311, 321 Magistrates Court Act 1930 (ACT), s 90B Supreme Court Act 1933 (ACT), Pt 8
Cases Cited:	Allred v R (2015) 10 ACTLR 325 Fusimalohi v The Queen [2012] ACTCA 49 Heard v The Queen [2015] ACTCA 6 Inge v The Queen (1999) 199 CLR 295 Markarian v The Queen (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Ngo v Fairfield City Council (2009) 169 LGERA 56 R v Arnold [1999] 1 VR 179 R v Govinden (1999) 106 A Crim R 314 R v Hayes [1984] 1 NSWLR 740 R v Hutchinson [2014] ACTCA 29 R v Inwood (1974) 60 Cr App Rep 70 R v Krasnov (1995) 125 FLR 120 R v Lansdell (Unreported, NSW Court of Criminal Appeal, Gleeson CJ, Dowd and Hulme JJ, No 60090 of 1996, 23 May 1996) R v Paivinen (1985) 158 CLR 489 R v Rollo [1981] 2 NZLR 667 R v Steen (Unreported, Australian Capital Territory Supreme Court, Penfold J, SCC No 85 of 2012, 18 December 2012) R v Steen (Unreported, Australian Capital Territory Supreme Court, Gray J, SCC No 250 of 2005, 24 June 2008) R v Steen [2014] ACTSC 309 R v Todd [1982] 2 NSWLR 517 Radenkovic v The Queen (1990) 170 CLR 623 RK v Mirik (2009) 21 VR 623 Rubino v The Queen [2015] ACTCA 22 Simonds v The Queen [2013] ACTCA 13 Tate…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Steen

Details

AGLC: R v Steen [2015] ACTSC 259
Case: [2015] ACTSC 259
Decision Date: 18 August 2015

CaseChat Overview and Summary

In the Supreme Court of Queensland, the defendant, Marshall James Steen, was charged with burglary, theft, and minor theft committed on 29 June 2014. The court had to determine appropriate sentences for each of these offences, taking into account the defendant's criminal history, his struggles with drug addiction, and his potential for rehabilitation.

The primary legal issues before the court were the calculation of the non-parole period, the cumulative or concurrent nature of the sentences, and the consideration of a compensation order. The court considered the defendant's extensive criminal history and his drug addiction as mitigating factors. The court also noted that there was no realistic prospect of the defendant being able to pay a compensation order.

The court decided to set a non-parole period to commence on 8 July 2014 and to end on 23 July 2017. The sentences for burglary, theft, and minor theft were ordered to be served concurrently, with the burglary sentence being two years and six months and the theft and minor theft sentences being 18 months and three months respectively, all to commence on 24 October 2019. The court took into account the defendant's need for rehabilitation and his extensive history of imprisonment and drug addiction.

The final orders were that Marshall James Steen be convicted of the offence of burglary, theft, and minor theft, and be sentenced to imprisonment for the aforementioned periods, with the non-parole period set to commence on 8 July 2014 and to end on 23 July 2017.

Orders

Orders of the court

1. Marshall James Steen be convicted of the offence of burglary committed on 29 June 2014.

2. Marshall James Steen be sentenced to imprisonment for two years and six months to commence on 24 October 2019; that is, to be cumulative as to six months on the sentence he is currently serving.

3. Marshall James Steen be convicted of theft on 29 June 2014.

4. Marshall James Steen be sentenced to imprisonment for 18 months to commence on 24 October 2019; that is, to be wholly concurrent on the sentence for burglary in order 2.

5. Marshall James Steen be convicted of minor theft on 29 June 2014.

6. Marshall James Steen be sentenced to three months imprisonment to commence on 24 October 2019; that is, to be wholly concurrent on the sentence for burglary in order 2.

7. A non‑parole period be set to commence on 8 July 2014 and to end on 23 July 2017.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Steen [2015] ACTSC 259

Most Recent Citation

R v Allred [2015] ACTSC 327

Cases citing this decision · 14 of 14 shown

Director of Public Prosecutions v Smith (No 2)
[2024] ACTSC 126

…2020] ACTSC 376 R v McFarlane (1993) Tas R 201 R v McHughes (No 3) [2021] ACTSC 344 R v Parker [2018] ACTSC 55 R v Po’oi [2021] ACTSC 151 R v Steen [2015] ACTSC 259 R v Tonna (No 2) [2020] ACTSC 362 R v Verdins [2007] VSCA 102; 16 VR 194 R v Ware [2016] ACTSC 264 R v Williams [2015] ACTSC 15 Singh v The Queen [2017…
Director of Public Prosecutions v Padreny
[2023] ACTSC 286

…R v Qutami [2001] NSWCCA 353; 2001 A Crim R 369 R v Rogers [2021] ACTSC 355 R v Smith (No 2) [2022] ACTSC 246 R v Stanley [2015] ACTSC 322 R v Steen [2015] ACTSC 259 R v Tonna (No 2) [2020] ACTSC 362 R v West [2015] ACTSC 134 R v Williams [2016] ACTSC 389 Ross v R [2012] NSWCCA 161 Stebbins v Tasmania [2016] TASCC…
Nathan Etheredge v Chaka Freeman
[2022] ACTMC 11

…ACTMC 16 Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 R v BS-X [2021] ACTSC 160 R v Mills [1998] 4 VR 235 R v Rappel [2019] ACTCA 11 R v Steen [2015] ACTSC 259…
R v Guy
[2022] ACTSC 373 Para 14

…fence was committed a long time ago or was of a different character, in which case it may not affect the leniency that can be afforded: see R v Steen [2015] ACTSC 259 at [21]. It can, however, elevate the culpability for the current offences: Millard v The Queen [2016] ACTCA 14 at [38].…
R v Donnelly
[2021] ACTSC 336 Para 1

…I have addressed this issue in other cases: see R v Massey (No 3) at [66]-[69] and R v Steen [2015] ACTSC 259 at [51]-[52].…
R v Massey (No 3)
[2021] ACTSC 156

…SC 92 R v Ngerengere (No 3) [2016] ACTSC 299 R v Pham [2015] HCA 39; 256 CLR 550 R v Seymour [2021] ACTSC 152 R v Slattery [2021] ACTSC 154 R v Steen [2015] ACTSC 259 R v Taylor [2015] ACTSC 122 R v Tonna (No 1) [2020] ACTSC 360 R v Tonna (No 2) [2020] ACTSC 362 R v Whyte [2002] NSWCCA 343 R v Williams [2017] ACTSC…
R v Alberts
[2021] ACTSC 341 Para 1

…The relevant principles are set out in R v Steen [2015] ACTSC 259 at [51] - [52] as follows:…
R v Hancock
[2021] ACTSC 52 Para 1

…In R v Steen [2015] ACTSC 259 at [51]-[52], I considered the approach to such orders where I said:…
R v Watt
[2021] ACTSC 20

…ter [2008] QCA 90; 1 Qd R 53 R v Landolt (1992) 63 A Crim R 220 R v Raines [2017] NSWDC 217; 25 DCLR(NSW) 239 R v Roussakis [2020] ACTSC 19 R v Steen [2015] ACTSC 259…
R v Pearson
[2020] ACTSC 375 Para 1

…Mr Kelliher submitted that it would be inappropriate in this case to make such an order. He referred to what I said about such orders in R v Steen [2015] ACTSC 259 at [51]-[52], namely:…
R v Ngerengere (No 3)
[2016] ACTSC 299 Para 1

…I have regard to the principles relating to such orders set out in R v Steen [2015] ACTSC 259 at [51]-[52]. In applying them, I consider that I should make a reparation order but with a sufficient time to allow Mr Ngerengere the ability to meet repayments at a reasonable rate.…
Fleury v Symon
[2016] ACTSC 201 Para 1

…The Special Magistrate's attention was then drawn to the decisions in Kelly v Ashby [2015] ACTSC 345 and R v Steen [2015] ACTSC 259. It was suggested that, if it was her Honour's intention to extend the nonparole period by a period of six months, then her Honour should impose a nonparole period of six months from S…
Kelly v Ashby
[2015] ACTSC 346 Para 1

…I addressed this problem in R v Steen [2015] ACTSC 259 at [54]-[56], as follows:…
R v Allred
[2015] ACTSC 327 Para 1

…I have also been asked to make a reparation order, available under s 21B of the Crimes Act . I have set out the relevant principles in R v Steen [2015] ACTSC 259 at [51]-[52]. Given that Mr Allred has accepted that obligation and has prospects of employment, I am prepared to make the order.…

View all 14 citing cases →

Cases cited in this decision · 18 of 18 shown

Rubino v The Queen
[2015] ACTCA 22 Para 1

…urn. The Court of Appeal has considered the issue of burglary on a number of occasions. In particular, I refer to the decisions of Rubino v The Queen [2015] ACTCA 22, R v Hutchinson [2014] ACTCA 29, Simonds v The Queen [2013] ACTCA 13 , Fusimalohi v The Queen [2012] ACTCA 49 and Tate v The Queen [2012] ACTCA 50. I…
Heard v The Queen
[2015] ACTCA 6 Para 1

…in the High Court in Inge v The Queen (1999) 199 CLR 295 at 316; [59]. His Honour's approach was followed by the Court of Appeal in Heard v The Queen [2015] ACTCA 6 at [50]. Non-parole periods should not be set or assessed mathematically. Obviously the non-parole period should start when the sentence of imprisonm…
R v Steen
[2014] ACTSC 309 Para 1

…y occasions, as I shall chronicle below. While the Pre-Sentence Report does not detail his background, I have read decisions of this Court, R v Steen [2014] ACTSC 309 ( R v Steen [2014] ) and R v Steen (Unreported, Australian Capital Territory Supreme Court, Penfold J, SCC No 85 of 2012, 18 December 2012) ( R v Ste…
R v Hutchinson
[2014] ACTCA 29 Para 1

…sidered the issue of burglary on a number of occasions. In particular, I refer to the decisions of Rubino v The Queen [2015] ACTCA 22, R v Hutchinson [2014] ACTCA 29, Simonds v The Queen [2013] ACTCA 13 , Fusimalohi v The Queen [2012] ACTCA 49 and Tate v The Queen [2012] ACTCA 50. I note too that because he is ser…
Simonds v The Queen
[2013] ACTCA 13 Para 1

…mber of occasions. In particular, I refer to the decisions of Rubino v The Queen [2015] ACTCA 22, R v Hutchinson [2014] ACTCA 29, Simonds v The Queen [2013] ACTCA 13 , Fusimalohi v The Queen [2012] ACTCA 49 and Tate v The Queen [2012] ACTCA 50. I note too that because he is serving a lengthy sentence already, Mr S…
Fusimalohi v The Queen
[2012] ACTCA 49 Para 1

…to the decisions of Rubino v The Queen [2015] ACTCA 22, R v Hutchinson [2014] ACTCA 29, Simonds v The Queen [2013] ACTCA 13 , Fusimalohi v The Queen [2012] ACTCA 49 and Tate v The Queen [2012] ACTCA 50. I note too that because he is serving a lengthy sentence already, Mr Steen has been considered unsuitable for a…
Tate v The Queen
[2012] ACTCA 50 Para 1

…en [2015] ACTCA 22, R v Hutchinson [2014] ACTCA 29, Simonds v The Queen [2013] ACTCA 13 , Fusimalohi v The Queen [2012] ACTCA 49 and Tate v The Queen [2012] ACTCA 50. I note too that because he is serving a lengthy sentence already, Mr Steen has been considered unsuitable for a community work condition to a Good B…
Ngo v Fairfield City Council
[2009] NSWCCA 241 Para 1

…serious offences or where there has been a gap in the offender's criminality, it may be able to be given less weight. It was, however, pointed out in Ngo v Fairfield City Council (2009) 169 LGERA 56 at 61; [29] that repeating offences of the same type can elevate the culpability of the offences.…
RK v Mirik
[2009] VSC 14 Para 1

…400 for the other item. Bell J made a most useful and thorough analysis of the principles surrounding the making of compensation orders in RK v Mirik (2009) 21 VR 623. His Honour made the following points:…
R v Inwood
[2005] QCA 248 Para 1

…ymbolic. In the United Kingdom it has been held that a compensation order should not be made where there is no realistic prospect of its payment. See R v Inwood (1974) 60 Cr App Rep 70 at 73. That approach was followed in New Zealand in R v Rollo [1981] 2 NZLR 667 at 671-2, though legislation has since changed that…
Markarian v The Queen
[2005] HCA 25 Para 1

…nce and knowledge of the judicial officer in an instinctive synthesis which, at the same time, is required by the High Court in Markarian v The Queen (2005) 228 CLR 357; [39] to be delivered with accessible reasons which are necessary in the interests of the victim, the accused, the prosecutor, appeal courts and the…
Wong v The Queen
[2001] HCA 64 Para 1

…All sentencing decisions are complicated. The High Court in Wong v The Queen (2001) 207 CLR 584 at 611; [75] has required a sentencer to bring all the competing considerations together with the experience and knowledge of the judicial officer in an instinctive synthesis which, at the same time, is required by the Hig…
Inge v The Queen
[1999] HCA 55 Para 1

…That approach, however, has been rejected by Kirby J in the High Court in Inge v The Queen (1999) 199 CLR 295 at 316; [59]. His Honour's approach was followed by the Court of Appeal in Heard v The Queen [2015] ACTCA 6 at [50]. Non-parole periods should not be set or assessed mathematically. Obviously the non-parole p…
Radenkovic v The Queen
[1990] HCA 54 Para 1

…Paivinen (1985) 158 CLR 489 at 493-9. It was subsequently replaced by the so called "truth in sentencing" regime described in Radenkovic v The Queen (1990) 170 CLR 623 at 625-6, which requires the offender actually to serve the non-parole period or minimum term other than in the most exceptional circumstances.…
Mill v The Queen
[1988] HCA 70

…Queen [2012] ACTCA 49 Heard v The Queen [2015] ACTCA 6 Inge v The Queen (1999) 199 CLR 295 Markarian v The Queen (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Ngo v Fairfield City Council (2009) 169 LGERA 56 R v Arnold [1999] 1 VR 179 R v Govinden (1999) 106 A Crim R 314 R v Hayes [1984] 1 NSWLR 740 R v Hut…
Veen v The Queen (No 2)
[1988] HCA 14 Para 1

…he sentencing process, but a court must be careful about how they are taken into account. As pointed out by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477, the criminal history of an offender can be taken into account but there are principles that must be respected as follows:…
R v Paivinen
[1985] HCA 39 Para 1

…es may have been subject to the regime of remissions on the non-parole period that was in place at the time. The regime was described in R v Paivinen (1985) 158 CLR 489 at 493-9. It was subsequently replaced by the so called "truth in sentencing" regime described in Radenkovic v The Queen (1990) 170 CLR 623 at 625-6,…
[1981] 2 NZLR 667
[1981] 2 NZLR 667 Para 1

…e there is no realistic prospect of its payment. See R v Inwood (1974) 60 Cr App Rep 70 at 73. That approach was followed in New Zealand in R v Rollo [1981] 2 NZLR 667 at 671-2, though legislation has since changed that situation there. Given Mr Steen's age and circumstances, I do not consider that a compensation or…

Legislation cited in this decision · 2

Magistrates Court Act 1930 (ACT)
90B 2 mentions (from Para 1)
Supreme Court Act 1933 (ACT)
1 mention (from Para 1)