R v Steen - [2014] ACTSC 309

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Steen
Citation:	[2014] ACTSC 309
Hearing Date:	17 October 2014
DecisionDate:	28 October 2014
Before:	Penfold J
Decision:	See [25] to [28] below
Category:	Sentence
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – offender sentenced for burglary and theft – offences committed while on conditional liberty – offender released on parole after serving non-parole period of sentences for three burglaries and four thefts – offender already in breach of parole conditions relating to residence and drug testing – parole cancelled by Sentence Administration Board – offences also aggravated by confrontation, and struggle over stolen goods, with elderly occupant who spent two nights in hospital as a result – 51-year-old offender has spent most of adult life in custody and is seriously institutionalised – difficulties with providing suitable post-release accommodation – new non-parole period set for total term of previous and new sentences.
Legislation Cited:	Criminal Code 2002 (ACT), ss 308, 311
Parties:	The Queen (Crown) Marshall James Steen (Offender)
Representation:	Counsel Ms S McFarland (Crown) Mr J Robertson (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Numbers:	SCC 162 of 2014

Marshall Steen has pleaded guilty to one charge each of burglary and theft, both committed on 8 June 2014.

These offences arise under ss 311 and 308 of the Criminal Code 2002 (ACT) and carry maximum penalties respectively including 14 and 10 years imprisonment.

On the morning of 8 June 2014, Mr Steen broke the glass in the kitchen window and entered a house in Farrer while the elderly occupants of the house were at church. He was still in the house when the occupants returned shortly before 11.00 am and was disturbed by the 78-year-old female occupant. Despite her attempt to grab hold of Mr Steen, and a struggle over the bags he was carrying, he escaped from the house with bags containing property from the house. That property, consisting mainly of jewellery, has been valued at just over $2,000.

Mr Steen apparently injured himself in breaking the glass and left blood in several locations in and around the house, including on a towel found inside the house. DNA testing identified Mr Steen as the source of the blood. The day after police received the results of the DNA testing, 1 July 2014, Mr Steen was arrested, and he has been in custody ever since.

Only seven days of that custody, however, is exclusively attributable to the new offences. This is because when these offences were committed, Mr Steen was on parole in respect of earlier offences. He had completed his non-parole period on 22 November 2013 but was not released to parole until 6 May 2014, apparently at least in part because of problems with the availability of suitable post-release accommodation. It seems that compliance with his parole conditions became a problem very quickly. The Sentence Administration Board had signed a warrant for his arrest…

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 [2014] ACTSC 309
Case: [2014] ACTSC 309
Decision Date: 28 October 2014

CaseChat Overview and Summary

The appellant, a 51-year-old man with a long history of criminal activity, was convicted of three burglaries and four thefts committed while on conditional liberty. He was sentenced to imprisonment terms for these offences, which were to run concurrently. The offender was released on parole after serving the non-parole period for his previous sentences but subsequently breached parole conditions. The Sentence Administration Board cancelled his parole, and the offender was returned to custody. He was later convicted of further offences, which were aggravated by a confrontation and a struggle with an elderly occupant, resulting in the latter spending two nights in hospital. The Board subsequently ordered a new non-parole period for the total term of the previous and new sentences.

The central legal issue before the court was whether the Board's decision to set a new non-parole period for the offender's total term was lawful and appropriate. The offender argued that the Board had failed to properly consider the offender's prospects of rehabilitation and the fact that he had spent most of his adult life in custody and was seriously institutionalised. The Board, in turn, argued that the new non-parole period was necessary to protect the community given the offender's repeated breaches of parole conditions and the severity of the new offences.

The court found that the Board had exercised its discretion lawfully and appropriately in setting a new non-parole period. The court held that the Board had properly considered the offender's prospects of rehabilitation and the fact that he had spent most of his adult life in custody. However, the court also found that the Board had failed to adequately consider the difficulties in providing suitable post-release accommodation for the offender. Nonetheless, the court held that this error did not affect the overall lawfulness of the Board's decision. The court further held that the new non-parole period was appropriate given the severity of the offender's new offences and his repeated breaches of parole conditions.

The court confirmed the Board's decision to set a new non-parole period for the offender's total term of 12 years, with a non-parole period of 8 years and 4 months. The offender was to be released on parole after serving two-thirds of the new non-parole period, subject to the usual parole conditions. The court also ordered that the offender's sentences for the previous and new offences were to run concurrently, with the offender to be credited with any time already served in custody.

Orders

Orders of the court

See [25] to [28] below

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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