R v West

[2023] ACTSC 412

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v West

Citation: 

[2023] ACTSC 412

Hearing Date: 

20 February 2023

Decision Date: 

6 March 2023 

Reasons Date: 

2 and 6 March 2023

Before:

Refshauge AJ

Decision: 

(1)    Mitchell John West be convicted of attempted aggravated robbery (SCCAN 2021/123) and be sentenced to 3 years imprisonment to commence on 1 January 2022 and end on 31 December 2024.

(2)    Mitchell John West be convicted of aggravated burglary (CC 2021/4554) and be sentenced to 12 months imprisonment to commence on 1 July 2024 and end on 30 June 2025.

(3)    Mitchell John West be convicted of theft (CC 2021/4556) and be sentenced to 9 months imprisonment to commence on 1 November 2024 and end on 31 July 2025.

(4)    Mitchell John West be convicted of driving a motor vehicle without consent (CC 2021/4550) and be sentenced to 9 months imprisonment to commence on 1 February 2025 and end on 31 October 2025.

(5)    Mitchell John West be convicted of riding in a motor vehicle without consent (CC 2021/4551) and be sentenced to 6 months imprisonment to commence on 1 June 2025 and end on 30 November 2025.

(6)    Mitchell John West be convicted of failing to stop a motor vehicle for police as a first offender (CC 2021/4549) and be sentenced to 4 months imprisonment to commence on 1 September 2025 and end on 31 December 2025. It be noted that this offence also carries an automatic disqualification of 3 months, which commences on 6 November 2023.

(7) A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Mitchell John West in respect of the primary offence of attempted aggravated robbery (SCCAN 2021/123) of which he has been convicted and for which he has been sentenced to 3 years imprisonment.

(8)    That Order be extended to the offences of aggravated burglary (CC 2021/4554), theft (CC 2021/4556), driving a motor vehicle without consent (CC 2021/4550), riding in a motor vehicle without consent (CC 2021/4551) and failing to stop a motor vehicle for police as a first offender (CC 2021/4549), of which Mitchell John West has been convicted and for which he has been sentenced, and which are associated offences of the primary offence, and the sentences for which, with the sentences for the primary offence, is for a total period of 4 years imprisonment from 1 January 2022.

(9)    It be noted that 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.

(10)    The period of the Drug and Alcohol Treatment Order be for two years, 9 months and 26 days from today, 6 March 2023 to 31 December 2025.

(11)    The Treatment and Supervision Part of the Drug and Alcohol Treatment Order be for 2 years from today, 6 March 2023, until 5 March 2025.

(12) The Custodial Part of the Drug and Alcohol Treatment Order for the primary and associated offences be hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 6 March 2023, until 31 December 2025.

(13) Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), Mitchell John West 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 Treatment and Supervision Part of the Drug and Alcohol Treatment Order, 6 March 2025, until the end of the total sentence, 31 December 2025, with a probation condition that he accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser 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.

(14)    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)    Mitchell John West travel directly from this Court today to Canberra Recovery Services, Fyshwick, and admit himself to the residential drug rehabilitation program at that facility by 1:00 pm today, 6 March 2023;

(c)    Mitchell John West be directed to complete the residential drug rehabilitation program at Canberra Recovery Services, to not leave the facility until he has completed the course 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 Mitchell John West leave or be discharged from the program before completing it, he report to ACT Corrective Services by 4 pm on the next business day with a view to having his Drug and Alcohol Treatment Order reviewed;

(e)    Mitchell John West 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)    Mitchell John West not return a positive test sample under alcohol and drug testing; and

(g)    Mitchell John West comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.

(15)    Mitchell John West be directed to attend the Court Registry before he leaves the Court precincts 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 this Order is in force.

(16)    Mitchell John West be directed to appear by electronic means in Court on Friday 17 March 2023 at 12:30 pm.

Catchwords: 

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – Sentence – attempted aggravated robbery – aggravated burglary – theft – driving and riding in motor vehicle without consent – failing to stop motor vehicle for police – pleas of guilty – where similar prior convictions – where Bugmy factors present – Victim Impact Statements– Drug and Alcohol Treatment Order made

Legislation Cited: 

Crimes (Sentence Administration) Act 2005 (ACT) s 8

Crimes (Sentencing) Act 2005 (ACT) Pt 4.4, ss 7, 12A, 33, 33(1), 33(1)(za), 46J, 53(1), 80Y, 80ZA

Criminal Code 2002 (ACT) ss 44(9), 308, 310(b), 312(a)

Road Transport (General) Act 1999 (ACT) s 63(2)(a)

Road Transport (Safety and Traffic Management) Act 1999 (ACT) s 5C

Cases Cited: 

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

Cotter v Corvisy [2008] ACTSC 64, 1 ACTLR 299

Douglas v The Queen (1995) 56 FCR 465

Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462

Law v Ilievski [2016] ACTSC 291

Markarian v The Queen [2005] HCA 25; 228 CLR 357

Mill v The Queen (1988) 166 CLR 59

Pearce v The Queen [1998] HCA 57; 194 CLR 610

Rees v The Queen [2012] ACTCA 6

R v Barton [2001] NSWCCA 63; 121 A Crim R 185

R v BI (No 4) [2017] ACTSC 71

R v Cajina [2021] ACTSC 353

R v Campbell [2010] ACTCA 20

R v Carney [2013] ACTSC 266

R v Chatfield [2021] ACTSC 352

R v Childs [2021] ACTSC 170

R v Crawford (No 1) [2020] ACTSC 245

R v Connors [2022] ACTSC 374

R v De Simoni (1981) 147 CLR 383

R v Donnelly [2021] ACTSC 336

R v Dowling (No 2) [2021] ACTSC 200

R v JM [2014] ACTSC 380

R v Kilic [2016] HCA 48; 259 CLR 256

R v Massey (No 3) [2021] ACTSC 156

R v McHughes [2021] ACTSC 92

R v McHughes (No 3) [2021] ACTSC 344

R v Monaghan (Supreme Court of the Australian Capital Territory, 25 February 2023, unreported),

R v Ridley [2014] ACTSC 382

R v Rosewarne [2021] ACTSC 217

R v Salcedo; R v Stretton (No 3) [2018] ACTSC 305

R v Shepheard [2008] ACTSC 116; 189 A Crim R 165

R v Todd (1982) 2 NSWLR 517

R v Tonna (No 2) [2020] ACTSC 362

R v Weldon [2021] ACTSC 348

Stafford v R (1997) 149 ALR 183

Parties: 

Director of Public Prosecutions ( Crown)

Mitchell John West ( Offender)

Representation: 

Counsel

N Deakes ( Crown)

F J Purnell SC ( Offender)

Solicitors

ACT Director of Public Prosecutions

JDR Law ( Offender)

File Number:

SCC 174 of 2021

SCC 175 of 2021

REFSHAUGE AJ:     

Introduction

1. The remarks of a Court on sentencing are not the place for a learned treatise on the theory of punishment and sentencing. The Court, however, must apply the practice of this part of the criminal justice system and so cannot be unaware of the theoretical underpinnings of what it must do.

2. Much of the practice about sentencing, however, is a question of the length of the sentence. Sometimes, of course, it is how much the pecuniary penalty should be. It is worth noting that, while the Legislature frequently authorises the combination of these two, they rarely are, or the combination used as, a measure of severity.

3. Thus, severity is usually described in the length of the imprisonment imposed or sometimes, in a more subtle consideration, in the length that must be served in custody, such as by reference to when a non-parole period expires.

4. The rationale for this is not difficult to see. Part is, no doubt, embedded in the history of the Court’s response to offending, namely sentencing, where the options available for the sentence, especially after the abandonment and abolition of corporal and capital punishment, have been quite limited until fairly recently: Cotter v Corvisy [2008] ACTSC 64, 1 ACTLR 299, at 299 [1]-[2].

5. Part of the rationale for a sentence is in the significance of the prescribed imprisonment or pecuniary penalty which is set out in the terms of the maximum time of imprisonment or maximum amount of the pecuniary penalty, or both, as it  is accepted as a key measure of the seriousness of the offence and so what needs to be the severity of the sentence: Markarian v The Queen [2005] HCA 25; 228 CLR 357, 372; [31].

6. Some part of the rationale is the general description of the sentence and, indeed, how the offender often sees it, which is described in Pearce v The Queen [1998] HCA 57; 194 CLR 610 at 623 [45], as ‘the only relevant question may be “how long”’.

7. No doubt some victims see sentencing only in the context of the length of a sentence without perhaps knowing or understanding the current and significant complexities of sentencing.

8. Given that this may be related significantly to punishment, it is also relevant to appreciate that now in the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) there are, in fact, seven purposes for which a sentence may be imposed and it is clear that no purpose must be given greater weight than any other. Punishment is but only one of such purposes and has no primacy: see, though on somewhat different legislation: Stafford v The Queen (1997) 149 ALR 183 at 196. It is unsurprising that sentencing is, as far as has been widely said, a very difficult decision for a court to make: R v Chatfield [2021] ACTSC 352 at [36].

9. Mitchell John West must now be sentenced on his pleas of guilty to offences of attempted aggravated robbery, aggravated burglary, theft, dishonestly driving a motor vehicle without consent, dishonestly riding in a motor vehicle without consent and failing to stop when directed by police. He has asked that offences of aggravated burglary and theft be taken into account and has signed and agreed to that being done.

10. At sentencing, Mr N Deakes, counsel for the Crown, tendered without objection the required Crown Tender Bundle. Behind the prescribed and helpful Cover Sheet, it contained the committal and transfer documentation, an Agreed Statement of Facts, a List of Additional Offences under Part 4.4 of the Sentencing Act, Mr West’s criminal history, a Pre-Sentence Report dated 17 August 2022, two Victim Impact Statements, a Certificate as to the status of Mr West’s driver licence, which was directed to the issue of the disqualification of Mr West’s driver licence consequent upon conviction for some of the offences, and the sentencing remarks concerning the co-accused for some of the offences, Bradley Dawson.

11. As Mr West sought to serve any sentence of imprisonment by a Drug and Alcohol Treatment Order (Treatment Order) under s 12A of the Sentencing Act, the Crown Tender Bundle also contained Drug and Alcohol Treatment Assessments (Suitability Assessments) under s 46J of the Sentencing Act, namely, a Drug and Alcohol Treatment Assessment dated 23 January 2023 prepared by ACT Corrective Services and a Drug and Alcohol Sentencing List Suitability Assessment dated 12 January 2023 prepared by Alcohol and Drug Services. Also included were the initial assessments of ACT Alcohol and Drug Services dated 11 November 2022 and Forensic Mental Health Services also dated 11 November 2022, being eligibility assessments as described in R v McHughes [2021] ACTSC 92 at [11].

12. The Crown further tendered without objection a photograph of a knife, four photographs of a Suzuki Vitara motor vehicle, including one showing a deflated and damaged driver- side front tyre, and three photographs of a Honda CR-V motor vehicle the front of which had been severely damaged.

13. Mr F J Purnell SC, counsel for Mr West, tendered, without objection, three character references, one from Mr West’s sister dated 30 January 2023, one from his mother dated 31 January 2023 and the third from his former employer, undated. He also tendered, without objection, a Certificate of Graduation dated 15 July 2022 for Mr West from the Solaris Therapeutic Community, a letter from Karralika Therapeutic Programs Incorporated dated 22 August 2022 and a Psychological Report from Dr Douglas Boer dated 23 October 2022.

14. None of the contents of any of these documents was challenged. The authors of the two Victim Impact Statements, being the victims of the aggravated burglary, read them to the Court.

15. Both counsel provided helpful and thoughtful written submissions supplemented by oral submissions of value to the Court and willingly engaged in debate with the Court on the issues raised.

16. From this material the following findings are made.

The Facts

1. At around 2.00 am on 30 April 2021, Mr West and another man, apparently unknown to police, broke into a residence in Throsby where the owners and the elderly mother of the female owner were asleep. The two men entered the mother’s bedroom and she awoke, saw the two men and noticed that they were carrying a knife. The knife was shown to the Court in the tendered photograph. It had a black handle and a silver blade about 25 centimetres long and with a broken tip. Mr West pointed the knife at the mother and demanded that she give him her wallet, money and keys. He also looked under her blanket apparently to see if she was hiding anything there. The mother, terrified, stayed in the bed and said that she had no money and no wallet.  The men left her bedroom and went into the kitchen.

2. The male homeowner awoke when he heard a noise and opened his bedroom door where he saw the two men. He shut and locked the bedroom door and told his wife to call the police, which she did, reporting the burglary. It appears that Mr Dawson was the other man who entered that house.

3. These events were the subject of the two offences, the first being aggravated burglary. The second offence was attempted aggravated robbery being an attempt because no property was stolen from the mother. There were both circumstances of aggravation present fin the commission of both offences, namely that Mr West was in company and  hehad with him an offensive weapon.

4. Later, the homeowner found that the two men had stolen a laptop bag, two laptops, one iPad and a set of car keys. These facts led to Mr West being charged with the additional offence of theft.

5. A Honda CR-V motor vehicle was also taken from the premises. The keys which had also been stolen were for that motor vehicle.

6. About two hours later, Mr West and his co-offender Mr Dawson, with a third person unknown to police, went to a residence in Casey owned by the two persons who gave Victim Impact Statements.

7. Mr West and the other male went into the garage of the premises where two motor vehicles of the owners were parked. Mr West drove out in a Suzuki Vitara motor vehicle and the other male drove the other vehicle out of the garage, while Mr Dawson waited in the Honda CR-V motor vehicle stolen from the residence in Throsby.

8. The owners were awoken by the sound of a barking dog and the male owner went to the balcony of the premises and saw the two men stealing the cars. The male owner ran downstairs, heading to the garage. When he got there, he saw the garage door was open and Mr West was driving the Suzuki Vitara motor vehicle out of the garage. He also noted that Mr West was holding a pair of pliers.

9. The female owner tried to locate her phone to photograph the offenders but could not find it and went to the garage. The other male, who had attended with Mr West, then got out of the other car, rushed past the female owner and ran out of the garage. The male owner tried to pursue him but slipped over.

10. In the meantime, Mr West and Mr Dawson drove the Suzuki Vitara and the Honda CR-V vehicles respectively away.

11. The owner then noticed that the offenders had taken a handbag and phone of the female owner and two sets of car keys, one for each of the motor vehicles that had been in the garage.

12. These events founded the charges of aggravated burglary and theft, the circumstances of aggravation being that the burglary was committed when Mr West was in company. 

13. The burglary was reported to police and, at about 4.30 am, police on mobile patrol in Nicholls, ACT, saw the two stolen vehicles and activated the emergency lights and siren fitted to their vehicle to direct the offenders to stop. The offenders sped away, however, and police pursued them. This was the event that led to Mr West, driving the Suzuki Vitara, being charged with failing to stop when signalled to by police.

14. The police officers alerted other police officers, who deployed a Stop Stick-type deflation device. This was said to be the fastest deployment of any tyre deflation device, allowing the police deploying it to throw it from the side of the road and quickly activate it by pulling a cord. This has the effect of making operational the spikes to ensure that it comes into contact with the tyres and so is deployed. When it contacts the tyres, it deflates them. This caused the front driver side tyre of the Suzuki Vitara to deflate but did not stop Mr West who drove it away. He was followed by the Honda CR-V, which then had its front passenger side tyre deflated also. These were the facts which led the Crown to charge Mr West with dishonestly driving a motor vehicle without consent.

15. Both vehicles then came to a stop in Charnwood. Mr West got out of the Suzuki Vitara and got into the passenger side of the Honda CR‑V, which was driven away by Mr Dawson, despite its deflated tyre. Police continued to pursue it and saw it drive on the incorrect side of the road with the lights switched off, through an intersection and a set of traffic lights which had turned red. The motor vehicle then turned from Southern Cross Drive, Holt, ACT, into Luxton Street and from Luxton Street to Josephson Street, Belconnen, ACT.

16. Following this, the Honda CR-V collided with a wooden barrier on the median strip but kept being driven until it came to a stop in a carpark between Walden and Pindari Streets, Belconnen. These were the bases for the charge of dishonestly riding in a motor vehicle without consent.

17. Police arrested Mr West and searched him.  In the search, police found various items in his possession, including a bank card the property of the mother of the owner of the Throsby residence. They also found other items, including the two torches and the knife. Shortly after, Mr Dawson was also arrested.

The Proceedings

1. As noted above, Mr West was arrested on 30 April 2021. He appeared the next day in the ACT Magistrates Court, after which he was remanded in custody until 24 May 2021. On that adjourned date, he pleaded not guilty to all the offences with which he had then been charged and, after two more adjournments, was committed for trial to this Court. He remained in custody. In this Court, the matters proceeded in the ordinary way for trial of offences. He remained remanded in custody. A date of 3 November 2021 was set for a Criminal Case Conference. At that case conference, he entered pleas of guilty to the charges of aggravated burglary, theft, dishonestly driving a motor vehicle without consent and dishonestly riding in a motor vehicle without consent. The trial of the other charges was listed to commence on 11 April 2022.

1. On 31 December 2021, he was found to have breached a Good Behaviour Order made on 29 January 2020, imposed upon suspension of a sentence of 18 months imprisonment. His pleas of guilty for the current offences constituted a breach of that Order. He was then sentenced to prison form 30 April 2021 to 31 December 2021. He remained in custody thereafter. On 11 April 2022, Mr West pleaded guilty to the offences of attempted aggravated robbery and failing to stop when police signalled him to do so. The offences of aggravated burglary and theft were placed on a list of additional offences under Part 4.4 of the Sentencing Act.

2. Thus, since he was arrested, he has been in custody for 672 days, of which 246 days were spent serving a sentence of imprisonment. A period of time in custody as a sentenced prisoner does not count as time for the pre-sentence custody that is to be taken into account: R v Cajina [2021] ACTSC 353 at [111]. Accordingly, a period of 426 days will need to be taken into account as pre-sentence custody when Mr West is sentenced.

The Offences

1. In s 33 of the Sentencing Act, the legislature has mandated a number of matters that a court sentencing an offender must take into account. Included in these are the nature and circumstances of the offence. This is, in part, determined from the facts of the offence, which have been set out above.  Next to be considered is the objective seriousness of the offence or offences. This is determined by first considering the maximum penalty, an essential matter, being the specification by the legislature of the seriousness of the offence, and a comparator with other offences. It also provides a yardstick. That maximum is, of course, reserved for the worst type of case.

2. Then the Court must consider the particular way in which the offence has been committed. Most offences, certainly those committed by Mr West, can be committed in a wide variety of ways and circumstances. By considering current sentencing practice, as required under s 33(1) (za) of the Sentencing Act, the Court can take into account how Courts dealing with sentences over time have identified various factors, including the manner and circumstances of offending, which may aggravate or mitigate the seriousness of the present offence as committed.

3. Aggravated robbery is an offence contrary to s 310(b) of the Criminal Code 2002 (ACT) and sets a maximum penalty of 25 years imprisonment or a fine of $400,000 or both. It is, thus, a very serious offence. In this case, however, the robbery, though aggravated, was not completed because no property was taken in the robbery, thus not committing a theft which is an essential element of that offence. Nevertheless, Mr West and his co-offender attempted to do so, as is clear from the demand they made of the homeowners’ mother to give the offenders her wallet, money and keys and then looking under the blanket. Her bank card, while eventually taken, was not taken at this time. Under s 44(9) of the Criminal Code, a person who attempts to commit a substantive offence is punishable as if the attempted offence had been committed. Thus, Mr West is liable for the maximum penalty for aggravated robbery.

4. Aggravated robbery is, as the maximum penalty shows, a very serious offence and this is part because it is an offence of both dishonesty and violence: R v Connors [2022] ACTSC 374 at [124]. The present offence was somewhat more serious because both circumstances of aggravation were part of the offending on this occasion. On the other hand, it was not as serious an offence because the actual theft was not committed. The property sought to be taken was not particularly valuable, but the keys would have enabled access, depending on what they would have accessed, to something more valuable. It must of course have been terrifying for the victim, an elderly woman who spoke little English, being woken at the night by two men, one wielding a knife, threatening her with it, demanding property and then looking under the blanket under which she was sleeping.

5. A knife is, of course, a serious weapon and the Courts have consistently held that the use of knives as a weapon must be discouraged. The knife in this case did, from the photograph tendered, clearly look fearsome. Of course, a knife can do great injury and even cause death.

6. There was no evidence of any particular planning or premeditation for this crime, though the offenders were wearing face coverings. No actual violence was perpetrated, though, as noted, the threat made to the elderly woman was likely to have been quite terrifying. The victim, being asleep in her bedroom, was in a vulnerable position, especially as Mr West stood over her. It was, of course, also a serious offence because it involved the violation of the security that one’s home should provide and its privacy: see, for example, what was said in R v Salcedo; R v Stretton (No 3) [2018] ACTSC 305 at [116].

7. While nothing was stolen in the robbery, there were items stolen from the residence, but not in the course of the aggravated robbery, and that theft was separately charged. As noted above (at [40]), that it was an attempt means that it was less serious than had the actual offence of robbery been committed: R v BI (No 4) [2017] ACTSC 71 at [40]. While there was no actual theft, the failure to complete the offence was only because there was no property of the victim available to take at the time, which seems inevitably would have been stolen if available there.

8. Aggravated burglary is prohibited under s 312(a) of the Criminal Code which prescribes a maximum penalty of 20 years imprisonment or a fine of $320,000 or both. It is also a serious offence, though not as serious as a robbery. It is, of course, a burglary that was committed in circumstances of aggravation. In this case, the circumstances of aggravation were that Mr West was in company when it occurred and that he had a weapon.

9. The evidence is by no means clear, but it seems that Mr West or the co-offender went, not just into the garage, where they were found by the owners, but also into the residence. Unfortunately, this has meant that the Court is left to infer, from the fact that the owners found that certain items, including the car keys, had been stolen, that the car keys were stolen by the offender, and that the stolen keys were used to start the cars, instead of the pliers that Mr West was seen to have been holding, thus making the theft more serious. The keys and other items may be inferred beyond reasonable doubt to have been inside the premises, though it is not stated.  This was not controverted by counsel.  It would not have been difficult for the investigators to have ascertained this and to state it in the Statement of Facts.

10. It has to be remembered that any matters of aggravation have to be proved beyond reasonable doubt: R v Carney [2013] ACTSC 266 at [149].

11. In any event, the relevant factors for consideration have been set out for offence of burglary, which includes aggravated burglary, in R v McHughes (No 3) [2021] ACTSC 344 at [28]. See also R v Rosewarne [2021] ACTSC 217 at [119]. Many of the elements were not in evidence or at least not clear in this case. Thus, for example, while there was a clear entry into the garage of the residence, the evidence about entry into the actual residence was not so clear, though able to be inferred to the relevant degree. Such a burglary is more serious than many others such as those of commercial premises, construction sites or vacant or unoccupied properties.

12. Further, it was early in the morning when residents were more likely to be there and probably asleep, so that any confrontation would be very disturbing. There was no evidence of any damage done on entry or while the offenders were in the premises. There was a confrontation with the occupants, though they were, for example, not harmed in their residence. There seemed to be little planning. Indeed, it seems that the premises were selected at random.

13. There was no clear motivation for the offending, though it is apparent that the motivation was for personal gain. Mr West told the author of a Suitability Assessment that he was under the influence of methamphetamine when he committed the offences. It seems most likely that he was seeking funds for purchase of drugs, though the taking of the motor vehicle was a little more curious since mostly the theft of motor vehicles is not for financial gain, though sometimes for transport to commit other offences, which might be for such a purpose.

14. Finally, the trauma caused to the victims is graphically set out in the Victim Impact Statements. As is so often the case, the consequences last for longer than might be generally appreciated. This is addressed further below (at [79] to [85]).

15. The aggravated burglary at Throsby, an additional offence, was also serious, with many of the elements of criminality being the same as those for the aggravated robbery. It was in residential premises at a very early hour of the morning, where the occupants were present and sleeping and one was confronted. There was no substantial planning or premeditation and it appears also to have been opportunistic.

16. Theft is made a crime under s 308 of the Criminal Code and renders Mr West liable to a maximum penalty of 10 ten years imprisonment or a fine of $160,000 or both. The principal consideration in this offence, as well as in the underlying criminality, is the value of the property taken: Rees v The Queen [2012] ACTCA 6 at [3]. Of course, this is not limited to the monetary value of the property, but includes the personal or sentimental value of the property and the inconvenience caused by the loss of the property. Further, the consequences may be very serious, such as encouraging identity fraud: Law v Ilievski [2016] ACTSC 291 at [124]-[127], or credit cards which can then be used for financial gain well beyond the intrinsic value of the card: R v Donnelly [2021] ACTSC 336 at [65].

17. The property stolen from the residence at Casey was a handbag, two sets of car keys, a mobile phone and the motor vehicles – or one of the motor vehicles. There was no value given in the evidence of any of these items nor any description of what was in the handbag, such as a wallet with cash or credit cards. The one motor vehicle that was taken was also the subject of a further charge, which is relevant to the structure of the sentence. The other motor vehicle was attempted to be taken but was not taken and those events does not appear to have resulted in a charge.

18. The other theft made at the Throsby residence, being also an additional offence, was of a laptop bag, two laptops, an iPad and a set of car keys. These items could clearly be sold to obtain funds to feed Mr West’s drug dependence. No value of them was given in the evidence. The laptops would have a real value as may the bag. Their loss may also have caused inconvenience, perhaps significant inconvenience, but there was no relevant evidence of this. The keys would of course have significant consequential value giving access to the motor vehicle, and cause inconvenience, being difficult to replace and at some cost.

19. It is prohibited to drive or to ride dishonestly in a motor vehicle without consent as set out in s 318(2) of the Criminal Code which legislates a maximum penalty of five years imprisonment or a fine of $80,000 or both. Nevertheless, the Courts have generally accepted that the driving of the motor vehicle is the more serious of the two versions of that offence: see, for example R v Massey (No 3) [2021] ACTSC 156 at [29]. The driver has sometimes been likened to a receiver of stolen property: see, for example, R v Weldon [2021] ACTSC 348 at [54]. The other matters, as explained in R vConnors at [63], include whether the vehicle was recovered and whether there was any damage, the distance and period of time of the driving, the value of the vehicle and the manner of driving and whether the vehicle was used to commit other offences. In this case, the vehicle the subject of the charge of driving was recovered, though the front driver- side tyre was destroyed. There is no evidence as to whether that damaged the rim or any other part of the wheel.

20. As shown in the Victim Impact Statement, the motor vehicle was able to be restored to the owner, though with a cost for some repairs required. That cost was not stated. The motor vehicle was stolen at about 4.00 am on 30 April 2021 and was recovered some time after 4.29 am, a reasonable evaluation being not later than 5.00 am. It was driven from Casey, from where it was taken, to Charnwood, probably about 10 kilometres away. This was not a very long way or a particularly long period of time. There was no evidence of the year of make or value of the motor vehicle, but the photograph showed it in good condition. As to the use of the motor vehicle, it was not used for any further offending other than incidentally to the police pursuit and the offence of failing to stop when signalled by police, separately charged.

21. The dishonestly riding in the motor vehicle without consent involved Mr West getting into the Honda CR-V driven by his co-offender. In that case it was perhaps somewhat more serious since he was being driven away to escape from police, who then pursued the vehicle. The period and distance of driving was relatively short, though the manner of driving was bad; driving on the incorrect side of the road, lights switched off, driving through a red traffic light and colliding with a wooden barrier, a police car and some shopping trolleys before stopping. While a passenger is not responsible for the manner in which a motor vehicle is driven, the circumstances do suggest that this was at least in part caused by the effort to prevent both occupants from being apprehended by police.

22. The motor vehicle was recovered, though the damage shown in the photographs is serious and extensive destruction of the front of the motor vehicle and the front tyres. There is no evidence as to whether it was salvageable, but it is sufficiently clear that it would have been very expensive to repair, even if indemnified by an insurance policy. Regrettably there was no evidence of that damage or the value of the motor vehicle.

23. Section 5C of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (Road Safety Act) prohibits failing to stop when signalled by a police officer to do so and provides for a maximum penalty of 12 months imprisonment or a fine of $16,000 or both. A conviction for the offence attracts an automatic licence disqualification of three months or such longer period as the Court may order under s 63(2)(a) of the Road Transport (General) Act 1999 (ACT).

24. It is clear and accepted that the requirement in s 5C of the Road Safety Act, in referring to ‘a police officer asking or signalling a person to stop the motor vehicle’, is satisfied by the police activating the emergency lights and sirens in pursuit of a motor vehicle. The Court explained the gravamen of the offence in R v Dowling (No 2) [2021] ACTSC 200 at [71] as follows:

    The offence is as serious as it is because, again, it is an important part of the regime for management of driving in our community and ensuring its safety. It also amounts to an important investigative tool for police, more widely, to assist in limiting suspects or offenders being able to evade arrest or hiding from the police: R v Hodge [2019] ACTSC 15 at [18]. As is clear from the provision for an increased penalty for repeat offenders, the repeated failure to comply is an aggravating factor: R v Eichmann [2019] ACTSC 212 at [26].

25. Often, as was the case here, drivers who fail to stop when signalled by police to do so also drive in a dangerous manner, but that is a different offence and a more serious offence. It is important not to extend the offence beyond its terms, especially if it would encompass the criminality of a more serious offence, unless it is required by law: R v De Simoni (1981) 147 CLR 383 at 395-396 per Wilson J.

Subjective Circumstances

1. As well as the nature and circumstances of the offences for which Mr West must be sentenced, both the common law and the Sentencing Act require the Court, in sentencing him, to have regard to his personal and subjective circumstances: see R v Kilic [2016] HCA 48; 259 CLR 256; s 33(1)(m), (n), (o), (p), (r), (t), (u) and (v) of the Sentencing Act. The findings in this case come from the Pre-Sentence Report, the Suitability Assessments and the exhibits tendered by Mr West, significantly Dr Boers’ Report.

2. Mr West was born in 1996 in Canberra. He is thus still just young enough to be given some consideration on account of his age: see R v Tonna (No 2) [2020] ACTSC 362 at [44]. He has an older half-sister and a younger brother. He suffered a chaotic childhood, with his father being violent to his mother and to the children and drinking alcohol to excess. This led to the end of his parents’ relationship when Mr West was 10 years of age. It was a difficult time.

3. He moved to New South Wales with his mother. She re-partnered and he went to live with his father in Tamworth, New South Wales at about age 12 or 13. This was not a good time, however, as he suffered continuing physical abuse from his father. He was also introduced to alcohol, tobacco and cannabis. The abuse led to intervention by the Department of Communities and Justice and he spent some time in a refuge before returning to live with his mother. He ran away, however, at about age 13 years to live, in Canberra, with his sister, who was four years older than him. He has, however, a positive and supportive relationship with his siblings and his mother. His mother and sister provided references to the Court.

4. Mr West enjoyed school but had behavioural problems and believed that he had learning difficulties. There was some limited support for this in the Psychological Report of Dr Boer. His main difficulty at school was over his fighting and being disrespectful to staff, which led to his suspension on a number of occasions. He finally left school in year 8. He believes, however, that he may have completed year 10 studies [redacted]

5. On leaving school, he started a panel beating apprenticeship. He completed the year but left because of his substance use. He has since then had little employment, though he recently began working with his half-sister’s father in a plastering business. His employer provided a reference in which he described Mr West as a good employee. He was said to be ‘well mannered, polite and reliable, showing a strong work ethic. He is responsible, thoughtful and always self-aware, showing maturity beyond his years … he just got on with it’.

6. He has had a major intimate relationship which lasted for about two years, only ending recently. There were no dependent children from the relationship. It was, however, a positive relationship while it lasted, as his partner would not have him using drugs while he was there, to protect her child. She would ask him to leave when he was using drugs. The relationship ended about three months ago. Mr West has no real assets, though he had an income before his most recent period in custody.

7. Mr West has no current problems with his physical health, though he did have some significant surgery after a serious motor vehicle accident when he was 18 years of age. As to his mental health, Mr West had a diagnosis of attention deficit hyperactivity disorder and a bipolar disorder as a juvenile and was prescribed medication. He ceased using that medication when he was 18 years old. Dr Boer did detect some symptoms of that disorder but opined that he did not meet the criteria for any diagnosis of a major mental health disorder. This confirms recent Forensic Mental Health Services reports.

8. Mr West has had a long history of substance abuse commencing when he was about 11 or 12 years old. As noted above (at [64]), he started consuming alcohol, tobacco and cannabis at that time. He has continued to smoke tobacco, but has stopped drinking alcohol, and he gave up consuming cannabis between about 15 and 17 years of age. He has used, mostly relatively briefly, some heroin, MDMA, Xanax, cocaine and buprenorphine strips, but no longer uses any of these drugs and mostly has not for quite some time.

1. His drug of choice is methamphetamine, which he commenced using when he was about 14 years old. By age 20, he was injecting it and was using a daily dose of 3.5 grams. He did give it up for about 12 to 14 months following some rehabilitation, but resumed after an argument with his partner. It led to him contacting former associates, using drugs heavily and committing offences. He has had some drug rehabilitation. He engaged with a counsellor for a short period [redacted] but found it of little benefit.

2. From February to September 2020, he did attend the program of Wayback Limited (as to which agency, see R v JM [2014] ACTSC 380 at [44]). He remained abstinent while he was there and for some time after that. It was suggested in some evidence that was until May 2021, but that is contraindicated by his criminal record where it shows that he was charged with driving with a prescribed drug in his oral fluid on 18 March 2021. He was convicted and sentenced for that offence on 6 May 2022. Given the circumstances of his relapse, namely that he had an argument with his partner, drove off, encountered some old associates and relapsed into drug use with them, this does seem the occasion when this actually happened. It is perhaps understandable that ‘March’ was mistaken for ‘May’ but, even so,18 March 2021 is still over 12 months of abstinence since his entry into the Wayback facility.

3. He has recently completed the Solaris Therapeutic Community program (as to which facility, see R v JM at [26]). There was a suggestion in one of the Suitability Assessments that he was expelled from the program for his refusal to attend urinalysis testing. He has, however, received a Certificate of Graduation on 15 July 2022 and a report from the program operator, Karralika Programs Incorporated, describing him post-graduation as ‘an active, positive member of the community’. He ‘continues to perform, being an active participant of the therapeutic community and a senior peer’. He has continued to ‘access opportunities to explore his recovery and develop outside support post release from the detention centre’.

4. He engaged, while in the Alexander Maconochie Centre, in what is known as the EQUIPS Addiction Program. EQUIPS apparently stands for “Explore, Question, Understand, Investigate, Practice, Succeed”. It is a program for persons assessed as having a high level of drug or alcohol use within the previous 12 months, addressing their addictive behaviours. Despite this, Dr Boer expressed his professional opinion that Mr West was still at a moderate to high risk of recidivism. He identified the ‘underlying causes’ as ‘related in part to a lengthy period of drug abuse which began early in life and as a means to cope with the abuse he both witnessed and suffered as a child and as a youth’.

5. Dr Boer’s opinion was that a period of imprisonment would not help to reduce Mr West’s risk of recidivism. His view was that Mr West was ‘willing to continue to participate in drug related rehabilitation, job training and related activities upon release as well as offence focused relapse prevention therapy’. Further, he opined that this ‘indicates that he is motivated not to reoffend in the future’. His childhood disadvantage would, according to Dr Boer, mean that imprisonment would weigh more heavily on Mr West than on a person in normal health.

6. Mr West has a long, serious and extensive criminal history. [redacted] As an adult he has committed 23 offences, a number serious enough to be dealt with in this Court. The majority are dishonesty offences, especially burglary and theft. Those were not one-off incidents; he has previously committed all of the offences of which he is now being charged for.

7. He was dealt with in the Drug Court of New South Wales in 2020, when he was mandated to complete the program at Wayback Limited, as noted above (at [70]). In the ACT, he was first imprisoned in 2017 for 15 months and has served a number of prison terms since then.

8. Mr West was compliant with the authors of the Suitability Assessments during the preparation of the Assessments. He also agreed with the Statement of Facts and explained the role drug use played in the offending. He was reported to have complied with all the requirements for the assessment and was described as ‘polite and engaged’.

9. Both his mother and sister have referred in their references to the remorse that he has expressed for his offending. His sister described his remorse as ‘extreme’, writing that ‘he is very sorry for his actions and wishes he could take them back’. His mother also says that he is committed to his rehabilitation and, though it has not yet been successful, he has achieved a number of milestones that do give some intimation of greater success under a more intensive regime. He is described as having ‘expressed over and over his deep regret for relapsing his addiction and reoffending. This is not the man Mitchell is or wants to be’. His remorse has not yet perhaps extended to empathy for the victims of the offences. That would be desirable, but it is a good start for the long and difficult road to rehabilitation.

Victim Impact Statements

1. A Court, when sentencing an offender, places great importance on receiving Victim Impact Statements, if possible and if the victims are willing and able to provide them. While it is proper and just that the Court focuses primarily on the offender, what he or she did, who he or she is, the personal circumstances of him or her, the victim is the other part of the offence, the one who suffered the harm, who has to live with the consequences, whose life has been more or less disrupted, sometimes a little, often moderately, and occasionally very, very much. This is, of course, particularly important for the Court to discharge its responsibility under s 33(1)(f) of the Sentencing Act but also, as occasion arises, under s 33 (1)(g) and (gb), to consider the harm done to the victim.

2. Of course, as s 53(1) of the Sentencing Act makes clear, the Court cannot draw any inference about the harm suffered by a victim from the fact that no Victim Impact Statement has been given. Further, however, as explained in R v Ridley [2014] ACTSC 382 at [43], the Court can draw reasonable inferences from the evidence to assess some of the harm done to a victim. The Court can also accept what harms are well known as being caused by certain offences: R v Shepheard [2008] ACTSC 116; 189 A Crim R 165 at 172 [31]. See also R v Childs [2021] ACTSC 170 at [10]-[11].

3. Here, the Court is fortunate to have had Victim Impact Statements from the owners of the Casey house. They were read by the victims to the Court. This has the advantage that the Court and the offender can hear the actual voice of the victims often with the emotion that the original offence caused and, indeed, in the reliving through its retelling that reading of the statement can cause.

4. They were graphic in their explanation of the effect that Mr West’s offending and that of his co-accused had on them both at the time and subsequently. The Victim Impact Statement of the female owner of the Casey property describes the effect of the aggravated burglary as ‘traumatic and profound’. It was, she said, ‘a terrifying experience’, especially as she was unsure whether the burglars would inflict personal harm on her and her husband and her teenage nephew in the house at the time. Despite having always felt safe in her home, the offence left her ‘continually terrified to be in my own home by myself’ and feeling ‘violated’, a regrettably common feeling from burglaries.

5. She has become ‘anxious returning to [her] home in the dark’ and she and her husband have spent ‘a lot of money’ to place security cameras and sensor lights around the home. She has become ‘continually vigilant’ when the dogs bark and increasingly anxious on hearing loud noises or if ‘people sneak up on’ her. This has impacted her work as a teacher. She also noted that it was ‘extremely stressful’ to have to organise her car to be repaired and the locks of her house changed, in dealing with insurance companies and the need to assist police in the investigation.

6. The Statement of the male owner was similarly powerful and shocking in describing the effect the offence had on him and his family. His general description was that the offence had left him feeling ‘angry, upset and devastated’ and ‘at a permanent unrest’ whilst in his home. Some of these feelings came through when he read the Statement out to the Court. He described how he and his wife had built their ‘dream home’ and that the offending ‘took this experience from this exciting and wonderful experience away’ when the offenders ‘took upon themselves to violate’ the home and the lives of him and his family. It was obviously challenging to hear him describe the effect of when they confronted the intruders, his wife looking ‘scared and terrified’.

7. He described how vigilant he had become in ‘double and triple’ checking doors and windows each night and how he investigates every little noise at night. He also referred to recurring precautions installed in their home, noting that the action of the sensor lights added to his ‘sleepless nights’ as he checks the cause of the movement that triggers them. The Court cannot, however, accept in the face of the actual evidence it has heard, some of his assertions about the offenders and must apply the law to provide justice about which there is not always agreement.

Current Sentencing Practice

1. Section 33(1) (za) of the Sentencing Act requires the Court sentencing an offender to take into account, so far as it knows it, current sentencing practice. In relation to some of the offences, the Court knows that the co-offender, Bradley Dawson, has been sentenced and the law requires that co-offenders be treated equally so far as their circumstances are ‘relevantly identical’: see Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at 473; [28]. Mr Dawson committed the aggravated burglaries at Throsby and Casey and the theft jointly with Mr West, but he, however, was not part of the attempted aggravated robbery. He was also the driver of the Honda
   CR-V motor vehicle into which Mr West entered when he abandoned the Suzuki Vitara motor vehicle.

2. Mr Dawson had an extensive criminal history and suffered from significant childhood disadvantage and longstanding drug dependency. No reason was advanced to suggest that the relevant circumstances were not materially identical. There was not any real difference in the level of participation of the two offenders in the appropriate offences. Thus, the penalties should be consistent, subject to other considerations such as any other differences in their personal circumstances.

3. As to the offence of attempted aggravated robbery, this has recently been considered in R v Monaghan (Supreme Court of the Australian Capital Territory, 25 February 2023, unreported), where the Court said of current sentencing practice:

   In R v Rowland; R v Herceg [2016] CTSC 192 at [49], the Court has noted:

   In this jurisdiction, sentences in the range of three to four years’ imprisonment are often imposed in “typical” cases, ie where a robbery is committed by one offender who is relatively young, has a limited criminal history and is armed with a weapon like a knife. In cases that are more serious, either because the objective circumstances are more serious or because the offender’s subjective circumstances (including prior criminal history) do not allow for significant leniency, the starting point is often at least six years’ imprisonment. In the most serious cases, the starting point can be significantly higher. This is not to say that the starting points for the sentences that have been imposed in other cases are necessarily correct, but the pattern of sentencing in other cases does provide a “yardstick” against which to assess the appropriate sentences in this case.’

   Of course, the other matters such as the childhood disadvantage and Mr Monaghan’s mental health also need to be addressed.

   In fact, as noted in R v Campbell at [50]-[54], sentences of less than three months’ imprisonment were appropriate. The decisions there are relevant but generally all circumstances were less serious than those appropriate for the sentence to be imposed on Mr Monaghan.

4. In relation to the offences of dishonestly driving or riding in a motor vehicle without consent, the circumstances of the offending in other cases varies widely. Without setting boundaries or mandating ranges, the recorded sentences captured in the ACT Sentencing Database, though with significant limitations on the available details, can provide some useful information. The records do not distinguish between sentences for driving or riding in a motor vehicle.

5. Thus, in the Supreme Court, the Database shows that 96 per cent of sentences were of imprisonment, though 23 per cent were to be served wholly or partially in the community, with suspended sentences or Intensive Correction Orders. Only 4 per cent, but nevertheless 13 sentences, were of Good Behaviour Orders without any imprisonment. Of those with terms of imprisonment, they were mostly between three months and three years. About half of the terms of imprisonment were of six months or less. Only 16 per cent were of more than 12 months imprisonment.

6. As to the offence of failing to stop after signalled by police, the majority of sentences in the Supreme Court recorded in the Sentencing Database were of imprisonment, though fines were also imposed. The terms of all the sentences of imprisonment were of six months imprisonment or less, though one was incorrectly shown as longer. Of the sentences imposed in the Magistrates Court, 42 per cent were of imprisonment and, of those, 9 per cent were wholly or partially suspended, and 20 per cent of offenders were given a fine-only sentence.

Considerations

1. The sentences to be imposed now by this Court are, for each offence, a single sentence that will then be informed by principles of law, such as totality and double punishment, to determine the aggregate sentence to be imposed. Each sentence, however, will represent a careful consideration of the relevant factors that the law, both statutory law and common law, require to be considered, but not taking into account those irrelevant matters which may not be considered, as, for example, set out in s 34 of the Sentencing Act and also at common law. Some of the relevant factors will point in different directions from each other, but, ultimately, the Court will instinctively synthesise them into one sentence, both individually and cumulatively.

2. In order to reach a just and adequate sentence, the Court must also have regard to the purposes for which the sentence is to be imposed. The Courts have made it clear that the ultimate purpose of the criminal law is the protection of the community, but different circumstances and different situations lend different weight to different purposes, even though designed to achieve that ultimate purpose. Here, the Courts of this Territory are fortunate to have the guidance of the Legislature, which sets out, in section 7 of the Sentencing Act, the purposes of sentencing to which the Court should have regard.

3. These offences were serious and undermine the peaceable and civilised society in which the members of our community should live. Accordingly, there must be an element of punishment for the serious breach of those standards that are set in order to achieve the  protection of the society.

4. A just and adequate sentence will also have the effect of denouncing such conduct to reinforce those standards and to make clear that there are consequences for the disregard or breach of them. This, too, may help to deter others from committing such offences, though the notion of such deterrence is not now something that is generally agreed to be effective. No doubt some are deterred, but who they are, and whether they are persons who need to be deterred, is not always clear. Mr West himself should have understood clearly, from the prior sentences that he has served, that such conduct is unacceptable. While the purposes of deterring him from repeating such conduct is a proper purpose, it must be accepted that even severe punishment has not, so far, been effective in deterring him and he has continued to offend.

5. In that context, rehabilitation, also a legislated purpose, has a role, for, if the causes of his offending can be addressed successfully, that will best prevent recurrence of such offending. This, of course, is in the public interest and most effectively protects it.

6. The harm done to the victims must also be acknowledged. Naturally, this is not a matter of revenge but a recognition that crimes are not a theoretical issue which has real and damaging consequences for individual members of the community.

7. Thus, there are a number of issues that must be addressed, in addition to those mentioned here. It is, of course, required that the Court take into account the mandatory considerations and these have been addressed in these reasons. Accordingly, the Court takes into account the nature and circumstances of the offending as described already; the injury, loss and damage resulting from the offences and the effect on the victims, including ongoing psychological effects which have been described and reinforced by the Victim Impact Statements, which will be carefully taken into account; the personal circumstances of Mr West ,which have also been described above, including his financial circumstances and that he was affected by drugs when he committed the offences; that he has sought treatment for his drug dependency and the reason he committed the offences. Mr West has also pleaded guilty and, as described above, this will also be taken into account.

8. He pleaded guilty to all but two of the offences at the Criminal Case Conference, which the Courts in this Territory have held does still justify a significant discount on the sentence. As to the other two offences, they were the subject of a late plea but, nevertheless, did justify a discount on the sentence for the utilitarian value of the pleas. Mr West has asked that two further offences be taken into account, and this will be done in accordance with the principles set out by the Court of Appeal in R v Campbell [2010] ACTCA 20 at [47], substantially adopting the approach in R v Barton [2001] NSWCCA 63; 121 A Crim R 185 at 195 [64]. In this case, the overlaps between the offences of aggravated burglary and theft with the offence of attempted aggravated robbery will to some extent moderate the effect that that has on the sentence.

9. It is relevant that the offences were committed at the one time, though over some hours. This is also required to be considered and the interaction between the various offences noted has something of the quality of a course of conduct.

10. Mr West has expressed remorse. That is a relevant factor. His pleas of guilty do provide some evidence of this, but his remorse is corroborated by the evidence of his family. It is also reinforced by the efforts he has already made to engage in rehabilitation, being a major motivation in his efforts to avoid re-offending, and the success he has achieved and continues to achieve in the Solaris Therapeutic Community program is significant and will also affect the sentence.

11. A significant factor, also to be taken into account, is his childhood disadvantage. His experience of family violence, not merely as a spectator but as a victim, the abuse of alcohol and the disrupted schooling are all powerful matters explaining why he has committed the offences, having become dependent on drugs. It does not moderate over time and both counsel accepted that the principles set out in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 594-595 [43]-[44] applied here. This explains his offending, identifies matters to be addressed and moderates his culpability. While his use of drugs and having been under the influence while offending is not a matter of mitigation, it is required by statute that this be considered. It is also a matter of the common law that the circumstances of Mr West becoming dependent on his drugs is very relevant to the sentence to be imposed.

1. It is further relevant to note that Mr West was at conditional liberty when he committed the offences. Thus, he was in the community because sentences of imprisonment had been suspended so that he could remain in the community in the ACT on a Good Behaviour Order and, previously, in New South Wales on an Intensive Correction Order.

2. He has already served the period of imprisonment suspended in the ACT. Nevertheless, while given the opportunity to be in the community, he has breached the trust that the Court placed in him to obey the law and not commit further offences while being given the opportunity to address his rehabilitation. That does aggravate the sentence that has to be imposed, of course, but he cannot be punished twice for the original offence and the imposition of the sentence must address some of the effect of such circumstances which are required to be considered.

3. Mr West’s drug use commenced at a relatively early age when he would not have been able to give informed consent. This is relevant to his culpability: see Douglas v The Queen (1995) 56 FCR 465 at 470. Clearly the sentences imposed on Mr Dawson are significant and unless there is a reason why not, there should be parity. No reason was advanced. Having regard to all these factors and having considered all of the other available sentencing alternatives, it is clear that no sentence but a sentence of imprisonment is required: s 10 of the Sentencing Act.

4. There are, of course, six sentences to be imposed and each offence must be given a separate sentence. In doing so, care must be taken to ensure that they are just and adequate, but do not result in Mr West being punished twice for the same criminality. This is, for example, common when considering the sentence to be imposed for a burglary and the theft simultaneously committed. It is also important to decide whether the sentences be cumulative or be partly or wholly concurrent. This will often apply where the offending constitutes a course of conduct as is the case here or, as with, for example, the attempted aggravated robbery and the aggravated burglary which contain common elements, though, in this case, the aggravated burglary was only an offence to be taken into account on sentencing Mr West. Nevertheless, that all relates to some of the elements in the robbery and burglary offences and the driving offences which were relevantly part of the same course of conduct.

5. Then, it is necessary to consider carefully the total sentence arrived at from this cumulation or concurrency to ensure that the important principle of totality is respected and that the total sentence adequately reflects the total criminality, but no more than this, and that the total sentence is not excessive but will leave hope for a realistic prospect of reform for Mr West when he can return to the community and engage effectively in it.

6. In addition to this there is the fact that Mr West has now been in custody continuously for over a year and 10 months, about eight months of which was spent serving another sentence. As the High Court accepted in Mill v The Queen (1988) 166 CLR 59 at 65-66, what was said in R v Todd (1982) 2 NSWLR 517 at 519 about the considerations a Court must have in regard to this situation, this period of imprisonment is relevant where an offender “has been left in a state of uncertain suspense as to what will happen to him in due course when he comes up for sentence.” In part, this can be done by backdating the start of a sentence, which should be ordinarily done under section 63 of the Sentencing Act, but it is noted that Mr West pleaded guilty to all but two of the offences in November 2021 and Mr Dawson was sentenced nearly 12 months ago. It is also relevant that during that time Mr West has engaged significantly and, so far successfully, in rehabilitation: Mill v The Queen at 65.

7. All this results in what may be seen by some as leniency in that, for example, some of the sentences are made concurrent because of the application of the principles, but it is important o recognise the total criminality and no more than what must be imposed, such that, in all the circumstances, it will leave open the possibility of reform and Mr West’s participation in the community.

8. Nevertheless, the sentences must, while taking into account these principles, not leave Mr West or other persons in any doubt that multiple offences can be committed with impunity but ensure that he receives justice. It is also important to mark the seriousness of the offences but appropriately motivate him to reform.

[The Court then adjourned]

Orders

1. On 6 March 2023, the Court makes the following orders:

   (1)Mitchell John West be convicted of attempted aggravated robbery (SCCAN 2021/123) and be sentenced to 3 years imprisonment to commence on 1 January 2022 and end on 31 December 2024.

   (2)Mitchell John West be convicted of aggravated burglary (CC 2021/4554) and be sentenced to 12 months imprisonment to commence on 1 July 2024 and end on 30 June 2025.

   (3)Mitchell John West be convicted of theft (CC 2021/4556) and be sentenced to 9 months imprisonment to commence on 1 November 2024 and end on 31 July 2025.

   (4)Mitchell John West be convicted of driving a motor vehicle without consent (CC 2021/4550) and be sentenced to 9 months imprisonment to commence on 1 February 2025 and end on 31 October 2025.

   (5)Mitchell John West be convicted of riding in a motor vehicle without consent (CC 2021/4551) and be sentenced to 6 months imprisonment to commence on 1 June 2025 and end on 30 November 2025.

   (6)Mitchell John West be convicted of failing to stop a motor vehicle for police as a first offender (CC 2021/4549) and be sentenced to 4 months imprisonment to commence on 1 September 2025 and end on 31 December 2025. It be noted that this offence also carries an automatic disqualification of 3 months, which commences on 6 November 2023.

[The Court then continued]:

1. The issue that is now required to be resolved is how that sentence is to be served.  Mr West has asked that a Treatment Order be made and that will now be considered.

2. In order to address this, it must be determined whether Mr West is eligible and then whether he is suitable for the making of such an order. The eligibility criteria are set out in ss 12A and 80S of the Sentencing Act. The criteria in s 80S are whether he is suitable, whether it is appropriate to suspend the sentence and whether there are suitable arrangements for the administration of the Order. These can be considered after the primary issues of eligibility under s 12A are considered.

3. Mr West has been sentenced to a term of imprisonment on his pleas of guilty to the offence of attempted aggravated robbery, which is an eligible offence. The term of three years imprisonment is greater than the minimum eligibility term of imprisonment of twelve months and less than the maximum period of four years. He is not subject to any other sentencing order within the meaning of s 12A of the Sentencing Act.

4. He has also been sentenced on his pleas of guilty to the other eligible offences of aggregated burglary, theft, dishonestly driving in a motor vehicle without consent, dishonestly riding in a motor vehicle without consent and failing to stop when signalled to do so by police.  The total sentence is four years, that is less than the eligible maximum sentence of imprisonment.

5. The Suitability Assessments and the Report of Dr Boer show that Mr West has a long history of drug use with some successful treatment, presenting as likely to have a severe substance use disorder, that is dependency.  His explanation to the authors of the Suitability Assessments and to Dr Boer, uncontradicted by any other evidence and unchallenged, show to the required degree that Mr West is dependent on drugs and this dependency contributed substantially to his offending.

6. Mr West has lived in Canberra for a very long time and there is no indication that he will not remain here for the term of his sentence.  He may, thereafter, move to where his mother lives, though he has a sister in Canberra and is close to her.

7. Mr West has given informed consent to the making of a Treatment Order, which, it is also reported in the Suitability Assessments, has been explained to him carefully allowing him to make a balanced judgment about that and whether to consent.  He has had the opportunity to ask any questions about the Order and the questions he has asked have been answered in language that he appeared to understand.

8. Accordingly, Mr West is eligible to serve his sentence of imprisonment by a Treatment Order.  The next question is whether he is suitable for such an Order to be made for him to serve his sentence.

9. Both the Suitability Assessments recommend that he is suitable.  They have been carefully, professionally, comprehensively and thoughtfully prepared.  They have been considered carefully by the Court.  This suitability is, to some extent, confirmed by Dr Boer, especially as he reported the inappropriateness of imprisonment for Mr West.  No matter showed that it was inappropriate for the sentence of imprisonment to be suspended. The Crown did not oppose the making of a Treatment Order, nor submit that Mr West would be unsuitable, provides that the sentence was, as it is, within the eligibility criteria.  He is suitable for a Treatment Order.

10. A Case Plan has been provided by Alcohol and Drug Services.  It shows that there are facilities and arrangements for Mr West to proceed with a Treatment Order, in particular, and it appears that they are suitable for him and for the administration of the Order.  Mr West has clearly had some success recently in rehabilitation and this is a positive matter.

11. There are no identifiable factors specified in Table 46K of the Sentencing Act that would make Mr West unsuitable and there are no other reasons why the sentence of imprisonment should not be served by a Treatment Order.

12. Finally, although the sentence of imprisonment has commenced form 1 January 2022, which period, from that date until today, has, in part, been served in custody, and that the sentence of imprisonment must be fully suspended for a Treatment Order to be made, this does not prevent Mr West from serving the balance of his sentence by a Treatment Order for the reasons set out in R v Crawford (No 1) [2020] ACTSC 245 at [91]-[111].

    (7)A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Mitchell John West in respect of the primary offence of attempted aggravated robbery (SCCAN 2021/123) of which he has been convicted and for which he has been sentenced to 3 years imprisonment.

    (8)That Order be extended to the offences of aggravated burglary (CC 2021/4554), theft (CC 2021/4556), driving a motor vehicle without consent (CC 2021/4550), riding in a motor vehicle without consent (CC 2021/4551) and failing to stop a motor vehicle for police as a first offender (CC 2021/4549), of which Mitchell John West has been convicted and for which he has been sentenced, and which are associated offences of the primary offence, and the sentences for which, with the sentences for the primary offence, is for a total period of 4 years imprisonment from 1 January 2022.

    (9)It be noted that 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.

    (10)The period of the Drug and Alcohol Treatment Order be for two years, 9 months and 26 days from today, 6 March 2023 to 31 December 2025.

    (11)The Treatment and Supervision Part of the Drug and Alcohol Treatment Order be for 2 years from today, 6 March 2023, until 5 March 2025.

    (12)The Custodial Part of the Drug and Alcohol Treatment Order for the primary and associated offences be hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 6 March 2023, until 31 December 2025.

    (13)Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), Mitchell John West 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 Treatment and Supervision Part of the Drug and Alcohol Treatment Order, 6 March 2025, until the end of the total sentence, 31 December 2025, with a probation condition that he accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser 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.

    (14)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)Mitchell John West travel directly from this Court today to Canberra Recovery Services, Fyshwick, and admit himself to the residential drug rehabilitation program at that facility by 1:00pm today, 6 March 2023;

    (c)Mitchell John West be directed to complete the residential drug rehabilitation program at Canberra Recovery Services, to not leave the facility until he has completed the course 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 Mitchell John West leave or be discharged from the program before completing it, he report to ACT Corrective Services by 4 pm on the next business day with a view to having his Drug and Alcohol Treatment Order reviewed;

    (e)Mitchell John West 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)Mitchell John West not return a positive test sample under alcohol and drug testing; and

    (g)Mitchell John West comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.

    (15)Mitchell John West be directed to attend the Court Registry before he leaves the Court precincts 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 this Order is in force.

    (16)Mitchell John West be directed to appear by electronic means in Court on Friday 17 March 2023 at 12:30 pm.

[His Honour then spoke directly to the offender]

1. Mr West, that is a lot of words and there were a lot of words last week. As I said then, you probably understand much of it because it is about you and it is about what you did, which constituted very serious offences. Even though you did not get any property with the robbery, it was a nasty offence and it is one of which I think you are and ought to be ashamed and you want to put that behind you.

2. I have assessed that you are ready for rehabilitation and now is your opportunity. You should take it with both hands and work on it. It will be hard. It is not easy. Drug dependency is a pernicious addiction which is really difficult to manage, but it can be done and a lot of people who come to this Court, and otherwise - we are not the only way – have been able to achieve that, and I hope you can. I am assessing that you are in that position and have the capacity now to do that.

3. If you are willing, if you are keen, if you will put your mind and heart to it, then this is the right place to come. Not only will the Court support you, but we are assisted by a team of professionals, not quite in addition to, but consistent with, the people at Canberra Recovery Services, who will do so. They’re there to help you, but helping does not always mean doing what you want. There will be times when you will have to do something that you may not like to do, but you will have to do it.

4. The program is for quite a long time because it does take time, as you know, to address these issues, and to come through it and to be drug and crime free so that you can have a useful, fulfilling and appropriate life, with family and all the other things you may want.

5. So, the order you will sign will set out the obligations. I want you to read them carefully and take a copy with you. It sets out the core conditions, which are basically that you are to do the right thing and obey any directions of the Court. That is a summary of them. That will require you to undertake the program at Canberra Recovery Services and you will see me, from next Friday, every week, for a while, and then every fortnight, until you have completed the program at Canberra Recovery Services.

6. The point of that is for me to note the progress that you are making, make sure it is continuing progress. If you are going well, I will congratulate you and I hope that is helpful but, at the end of the day, you need to feel that you are doing well and take pride in what you are achieving in this process.

7. If things are not going so well, then I will look at ways in which that needs to be addressed. One of the ways that can be addressed may be to send you back to prison for a period of time. If it’s really not working, then I can cancel the order and adjust the ordinary course, the balance of the four years you will have to serve in prison, depending on how it turns out and so on.

8. What is important is, obviously, that you commit yourself, but what’s also really important, in the process of managing a drug dependence, is to be honest. Obviously be honest with the Court, that is a serious offence if you are not, but be honest with your counsellors, because that's the way they can advise you, support you, encourage you, lead you to how you will manage this addiction which has blighted your life and led you in and out of prison and live, I hope you now see, an unsatisfactory life.

9. Also, however, it is important to be honest with yourself. It is very easy, because you have got to live with yourself 24/7, to say, “Well, it wasn't that bad, I just had a quick sniff, or just a quick taste, it really wasn't that bad”. Be honest, that is bad. That does not mean it is the end of the world. Yes, perhaps you should be ashamed of yourself, but that is because you will not do it again, not because you are a bad person, you have just done a bad thing. Own up to that. Yes, to the Court, if you own up and say, “I'm sorry, I lapsed”, the Court will be able to address that positively. If you deny it, and yet it is there, there is a urinalysis that is clear, or witnesses that see what happened or whatever, then you clearly are not ready for proper rehabilitation. But you have got to live with yourself, you have got to be comfortable and you've got to build in yourself the insight and the understanding that will lead you in a positive direction and not to say, “It doesn't matter very much”, when it does, because it matters, because that leads you to the wrong path, not the right path.

10. So, hopefully this will work for you. I am reasonably confident and I have made an order to allow you to do that. It will be tough. As you overcome those challenges you will get stronger and you will be able to manage them more and more and better and better as it goes along. If there are difficulties, talk with someone, do not hide it. It is very easy to say, “I'm a macho man, I can deal with it all myself, it doesn't matter.” People can assist you, and the team and the Court will not be judgmental in that assistance but will try to move you forward. What makes us proud is when people who come into this Drug Court graduate and live a successful life thereafter. So that is what we are aiming to achieve. It is tough. You will do it, I am confident, if you put your mind to it. If you do not, then there is really only one alternative, ultimately, and that is back to prison and that way leads, often, in and out, in and out, in and out, which is not a way to have a satisfying life and certainly not a family. You may be seated.

I certify that the preceding one-hundred-and-thirty-three [133] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge.

Acting Justice Refshauge

Date: