R v Sullivan
[2019] ACTSC 163
•31 January 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Sullivan |
Citation: | [2019] ACTSC 163 |
Hearing Date: | 29 January 2019 |
DecisionDate: | 31 January 2019 |
Before: | Burns J |
Decision: | See [19]-[24] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – burglary – theft – possession of a prohibited firearm – possession of ammunition for a firearm – pleas of guilty – drug addiction – consideration of prospects for rehabilitation |
Legislation Cited: | Criminal Code 2000 (ACT) ss 308, 311 Firearms Act 1996 (ACT) ss 42(a), 249(1) |
Parties: | The Queen (Crown) Joshua John Sullivan (Offender) |
Representation: | Counsel R Khazma (Crown) J Campbell (29 January 2019); R Chasland (31 January 2019) (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 43B of 2018; SCC 44 of 2018; SCC 280 of 2018 |
BURNS J:
Joshua Sullivan, you have pleaded guilty to the following offences. Firstly, an offence of burglary contrary to s 311 of the Criminal Code 2000 (ACT) (CC2018/08171). Secondly, an offence of theft contrary to s 308 of the Criminal Code 2000 (ACT) (CC2018/08308) and finally, a charge of possession of a prohibited firearm contrary to s 42(a)(iii) of the Firearms Act 1996 (ACT) (XO2018/31321).
In addition, there is a related charge transferred to this Court from the Magistrates Court. That is a charge of possessing ammunition for a firearm, namely 15 rounds of .22 ammunition contrary to s 249(1) of the Firearms Act 1996 (ACT) (CC2017/12096).
The maximum penalty for the offence of burglary is 14 years' imprisonment, a fine of $210,000, or both. The maximum penalty for the offence of theft is 10 years' imprisonment, a fine of $150,000, or both. The maximum penalty for the offence of possessing a prohibited firearm is 10 years' imprisonment and the maximum penalty for the offence of possessing ammunition contrary to the Firearms Act 1996 (ACT) is a fine of $150.
The short facts are that on 10 October 2017 you entered residential premises situated in Monash during business hours. From those premises, you stole an electronic safe, an iPad, jewellery, as well as numerous passports. The total value of the items stolen was $2,066, although a number of items possessed a sentimental value.
On 4 November 2017, Australian Federal Police officers attended your residence in Wanniassa. Officers located a sawn-off .22 calibre ‘Lithgow’ model single shot rifle inside an unsealed plastic tubing canister behind the bathroom door. Officers also located ammunition suitable for use for the same firearm in a tin inside a cupboard above the fridge. The rifle was tested and found to be capable of discharging a projectile.
On 7 September 2018 you pleaded guilty to the charges of burglary and theft in the ACT Magistrates Court. The plea was entered at the second mention stage. I am satisfied that these were early pleas of guilty, and had significant utilitarian value. I will reduce by approximately 25 per cent, the sentences that I would otherwise have imposed, in order to reflect your early pleas of guilty with respect to those charges.
On 24 July 2018 you pleaded guilty to the charge of possessing a prohibited firearm in this Court. Your plea was entered on the fifth mention date in this Court following the preparation of committal documents, but before the matter was listed for trial. The ex officio charge was contained on an indictment dated 30 April 2018. Your plea of guilty to this charge was not at the earliest opportunity, but it nevertheless had significant utilitarian value, and I will reduce by approximately 20 per cent the sentence that would otherwise be appropriate.
I note that with respect to these offences you are linked to both the burglary and theft, and also the firearms offence by DNA. There was a strong prosecution case with respect to all of the charges but, in my opinion, it was not overwhelmingly so, such as to reduce or to preclude the Court from providing a significant discount for your pleas of guilty.
With regard to assessing the objective seriousness of the burglary offence, I take into account the fact that it occurred in residential premises during the daytime. It seems to me likely that you had checked to determine that nobody was home at that time, because of the nature of the entry gained into the premises. The premises were unoccupied and an implement, being a crowbar, was used to effect entry. The use of that implement was opportunistic as you found it in the yard of the premises which were broken into.
With regard to the offence of theft, I take into account the moderate value of the goods which were stolen but I also note that many of the items could have had little monetary value but possessed great sentimental value for the owners.
With regard to the charge of possession of a prohibited firearm, I take into account that there was only one firearm, that it had been modified by sawing off the butt and the barrel, although there is no evidence that you were the person who undertook those modifications. At the sentence hearing before me, some time was taken in argument about when the evidence established that you had come into possession of that firearm. I am not satisfied that you possessed it before 2 November 2017.
Subjective features
I will now turn to your subjective features. You are 26 years old. You have a lengthy criminal history. You have prior convictions for burglary, aggravated burglary and aggravated robbery. You have previously served terms of imprisonment. Your criminal history disentitles you to leniency in the present proceedings, but also speaks of the need for specific deterrence in sentencing.
A Pre-Sentence Report prepared for the sentence hearing described your previous response to Corrections’ supervision as unsatisfactory, largely due to your continuing drug abuse. Your two prior Parole Orders were cancelled for continuing drug abuse. You were most recently released from the Alexander Maconochie Centre in March 2017 after your Parole Order had been cancelled and you were required to serve the balance of your then sentence.
Since you have been remanded in custody on the present occasion, your behaviour has been considered satisfactory and you have engaged in employment within the AMC. It appears however, that you have not engaged in any form of education or treatment concerning your drug addiction within that institution. It is to your credit in that regard that you did apply for entry into a program at Canberra Recovery Services but you were unsuccessful as that program was no longer accepting unsentenced offenders. The Report states that you have not completed any other applications for rehabilitation programs, and it appears that you have not undertaken any programs to deal with drug addiction whilst in the AMC on this occasion. I do note however that you are on methadone in the AMC but that you have struggled in the past to maintain pharmacotherapy whilst in the community.
You have continuing parental support. Your childhood was not marred by abuse or neglect, but you became involved with antisocial peers during adolescence and commenced both alcohol and drug abuse at an early age. I accept that the present offences of burglary and theft were intimately involved with your drug addiction. Ordinarily, of course, the fact that an offender commits serious criminal offences in order to satisfy a drug addiction is not considered mitigatory. However, some amelioration of that general principle is permitted in circumstances where an offender becomes addicted to drugs at an early age, because such an offender is not to be held as accountable for their addiction and the consequences of their addiction, as somebody who becomes addicted as an adult.
You have, in the past, been able to find employment and you have completed employment programs on this occasion whilst awaiting sentence. You hope to find work in the building industry upon your release. You told the author of the Pre‑Sentence Report that you have a history of feelings of depression and anxiety, and you have been prescribed antidepressants in custody. No further information concerning your mental health has been provided to me. The author of the Pre‑Sentence Report said that you largely appeared to accept responsibility for the present offences and showed some insight into the effects of your offending.
Your prospects for rehabilitation at the present time are guarded. Your prospects would be greatly enhanced if you were to address your drug addiction, but you presently appear to be unmotivated to do so, or at least not consistently. Without successfully addressing drug addiction, your risk of reoffending is, in my opinion, quite high. You are not beyond rehabilitation at the age of 26 but you presently show little desire or consistent commitment to addressing criminogenic factors such as drug addiction.
Every member of our community has a right to feel safe in their own home. Offences of burglary are calculated to diminish that feeling of safety and to engender a sense of violation in those whose homes have been invaded. Victims of such offences, and the community at large, look to the courts to impose sentences designed to deter such offences. It is particularly troubling that you were in possession of the shortened firearm, particularly bearing in mind your previous criminal history. This firearm was clearly adapted to enable it to be concealed. Unlawful possession of such firearms is an offence which should be considered particularly serious by these courts.
In my opinion, nothing less than immediate terms of imprisonment will be sufficient to address the requirements of sentencing. I note that quite properly your counsel conceded that the present offences would justify the imposition of terms of imprisonment.
Sentence
With respect to the offence of burglary, you are convicted and sentenced to two years and five months' imprisonment, which I have reduced from three years and six months, in order to reflect your plea of guilty. That sentence will commence on the date that you were taken into custody, 4 November 2017, and will expire on 3 April 2020.
With respect to the charge of possessing a prohibited firearm, you are convicted and sentenced to 19 months' imprisonment, which I have reduced from two years, in order to reflect your plea of guilty, commencing on 4 June 2019 and expiring 3 January 2021.
With regard to the offence of theft, you are convicted and sentenced to nine months' imprisonment, which I have reduced from 12 months, in order to reflect your plea of guilty, commencing 4 July 2020 and expiring 3 April 2021.
With regard to the transfer charge of possession of ammunition, you will be convicted and there will be Good Behaviour Order for a period of two months, commencing 31 January 2019 which will be confined to the core conditions only. I acknowledge that this sentence is, in effect, ineffectual. Due to the fact that the maximum penalty which may be imposed is a fine of $150, and the nature of the penalties which I have imposed upon the other charges, I propose to deal with that matter by way of a short Good Behaviour Order.
The aggregate term of imprisonment which I have imposed is therefore one of three years and five months' imprisonment, commencing 4 November 2017 and expiring on 3 April 2021. I set a non-parole period of two years and one month commencing 4 November 2017 and expiring on 3 December 2019.
[speaking directly to the offender]
I will just say a few words to you Mr Sullivan. At 26 years of age you are still somebody who is not beyond redemption and indeed rehabilitation is still a significant sentencing consideration. You have a very unenviable criminal history. You are rapidly getting to the stage where rehabilitation will no longer have any significance, and protection of the public will be more important when sentencing you for serious criminal offences. If you do not want to spend most of your young adult life in prison, you really need to do something about addressing drug addiction. That is something that only you can address.
| I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Burns. Associate: Date: |
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