R v White - [2014] ACTSC 158

THE QUEEN v MATTHEW PETER WHITE
[2014] ACTSC 158 (5 June 2014)

CRIMINAL LAW – Judgment and Punishment – Sentencing – Burglary – Theft

Crimes (Sentence Administration) Act 2005 (ACT)
Crimes (Sentencing) Act 2005 (ACT), s 7

Criminal Code 2002 (ACT), ss 308, 311

Love v The Queen [2012] ACTCA 8
R v De Simoni (1981) 147 CLR 383
R v Hayes [1984] 1 NSWLR 740
R v Oliver (1980) 7 A Crim R 174
R v Ponfield (1999) 48 NSWLR 327
Veen v The Queen (No 2) (1988) 164 CLR 465

EX TEMPORE JUDGMENT

No. SCC 155 of 2013

Judge: Refshauge J
Supreme Court of the ACT

Date: 5 June 2014

IN THE SUPREME COURT OF THE       )
  )          No. SCC 155 of 2013
AUSTRALIAN CAPITAL TERRITORY    )

THE QUEEN
v
MATTHEW PETER WHITE

ORDER

Judge:  Refshauge J
Date:  5 June 2014
Place:  Canberra

THE COURT ORDERS THAT:

Matthew Peter White be convicted of burglary at Braddon on 21 May 2013.

Matthew Peter White be sentenced to fifteen months’ imprisonment, to commence on 23 August 2013.

Matthew Peter White be convicted of theft of electronic equipment on 21 May 2013.

Matthew Peter White be sentenced to nine months’ imprisonment, to commence on 23 August 2013, that is, to be wholly concurrent with the sentence for the burglary.

The sentence be suspended from 5 June 2014.

Matthew Peter White be required to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years, with a probation condition that he accept supervision of the Director-General or her delegate and obey all reasonable directions of the person delegated to supervise him, including as to counselling for unresolved trauma issues and any ongoing drug and alcohol treatment or counselling for two years or such lesser period as the person delegated to supervise him considers to be appropriate.

The illegal entry into business premises is a serious matter. Not only does it involve a trespass on people’s premises, but it can cause damage and disruption, and it causes businesses to take security measures which can cause inconvenience to members of the public and be passed on as an expense to consumers. Theft of goods from such premises also requires businesses to increase the price of their goods having an effect on all consumers, quite apart from the wrong of taking property when it does not belong to the thief.

It is unsurprising, therefore, that the legislature provides for serious punishment for offences of burglary and theft, which include the unauthorised entry into businesses and the stealing of their property.

Matthew Peter White has pleaded guilty to one count of burglary and one count of theft.

Burglary is an offence against s 311 of the Criminal Code 2002 (ACT), which provides for a maximum penalty of 1,400 penalty units (that is, a fine of $154,000) or imprisonment for fourteen years, or both. Theft is an offence under s 308 of the Criminal Code and renders Mr White liable for a maximum penalty of 1,000 penalty units (that is a fine of $110,000) or imprisonment for ten years, or both.

The facts

Between about 12:30 am and 1:30 am on 21 May 2013, Mr White used a metal bollard to smash a glass door at a used car saleyard in Braddon, ACT, activating an alarm. He took a black fifty-four centimetre television and a Radio Shack aerial and left the premises.
A cyclist riding along the street saw the alarm lights and heard the alarm and called the police. He followed Mr White down the street. Police later located Mr White and arrested him. He was charged with burglary and theft. He later appeared before the ACT Magistrates Court and was refused bail.
After a number of adjournments, he appeared in the Magistrates Court on 25 July 2013 and entered a plea of not guilty. The matter was subsequently listed on 9 September 2013, when Mr White entered a plea of guilty and was committed to this court for sentence. On 20 December 2013, Mr White adhered to his pleas of guilty to both charges and sentencing proceedings commenced.
Subjective circumstances
Mr White was born in Sydney about thirty-four years ago, where he remained until, when he was twelve years of age, his family moved to Canberra. He has one brother and one sister and was raised in a good family environment with supportive relationships.
When he was in Year 9 at school, aged fourteen, he was gang-raped by five adult males, including the uncle of his best friend at the time. He told the author of the report prepared by the Court Alcohol and Drug Assessment Service (CADAS) that the offenders gave him alcohol and then bashed and raped him. He did not mention this until seven years later when he told his father, who was supportive.
While he had been using cannabis and alcohol prior to the attack, his drug problems escalated following it, as he used alcohol and other drugs to cope with the traumatic impact and the effects he experienced.
He completed Year 12 at school, but was an average student. He has taken no further study.
He gained employment after he left school in work including landscaping, positions with a window manufacturer and installer at Parliament House with building services and with a bakery, as a trade assistant and as a removalist.
When he was twenty-four, however, he lost his licence due to drug driving and this affected his ability to keep employment. He has worked off and on at Exhibition Park over the last six years for a rug company displaying rugs for sale.
He has been in receipt of a disability support pension while in the community. He has few friends who are not drug users or offenders.
He first drank alcohol when he was fifteen and, as a teenager, would “binge-drink” on weekends with his friends. More recently, he has limited his alcohol consumption to occasional use though, on the day before his arrest, he had drunk four packs of bourbon and coke.
He first smoked cannabis also when he was fifteen and became a regular user, smoking ten cones of cannabis a day. More recently he has reduced his cannabis use and feels that while cannabis is not a drug of addiction for him; he can “go without cannabis” should he wish to do so. Although he used cannabis the day before he committed these offences, he has not used cannabis whilst in custody, or since.
When he was twenty-six, Mr White began injecting ice, using up to one point of ice every three days. In 2009, however, he reduced his use of ice to two or three times a month and was abstinent for a six month period later in 2009. In recent years, he has injected ice on a monthly basis, his most recent use being in May 2013.
He has been prescribed Valium for about seven years to treat his anxiety. He sometimes took more than the prescribed dose, however, but, while in custody, has been gradually reduced off the medication.
He has been smoking tobacco for the last eighteen years, but is trying to quit with the assistance of nicotine replacement therapy.
Mr White’s drug of choice is heroin, which he started using when he was seventeen. He has injected heroin daily over the last sixteen years, in the last five years injecting about $400 worth of heroin daily. Since he has been in custody, he has commenced a pharmacotherapy treatment with methadone and is on thirty milligrams daily whilst in custody.
Mr White first completed a residential treatment for drug addiction in 2005 at the Kadesh Rehabilitation Program in Wollongong. He attended for eight weeks, but the treatment was not particularly effective because he was not committed to recovery. In 2010, he completed the eight week residential treatment program with Acadia House and remained abstinent for four months thereafter. He has also completed the residential detox program at Arcadia House on about three separate occasions. He has had alcohol and drug service counselling between November 2000 and April 2001 and attended a weekly relapse prevention group program at about the same time.
When he appeared before me in December 2013, he said he had been able to identify a number of triggers that contribute to his relapse to drug use. He had a goal of completing further residential treatment. He told the author of the CADAS Report, “I really want to stay away from drug use and achieve abstinence and this time it is because I am wanting to do this and not because I have to.”
Mr White has been diagnosed with Post Traumatic Stress Disorder following the assault to which I have earlier referred. He has had counselling with about ten sessions with a psychologist. He is currently prescribed sixty milligrams of Avanza daily to treat a mild depression.
Mr White suffered depression when he was about twenty-one years old and was prescribed medication. He had a bad reaction and took twenty-four Panadeine Forte pills in combination with half a gram of heroin in an attempt to commit suicide and his general practitioner subsequently changed the prescription.
Mr White has a long and depressing criminal history. He has fifty-six offences on his record in twenty court appearances. The vast majority, thirty-three, are dishonesty offences. The majority of these, namely eighteen, are minor thefts. While this takes him out of the usual run of dishonesty offenders, it is still a very significant attack on the right of people to retain their own property for which they have often worked hard.
Nevertheless, he committed five earlier offences of burglary, but they were committed on the same day and many years ago. While his criminal record denies him the leniency that a crime free record would (Veen v The Queen (No 2) (1988) 164 CLR 465 at 477), there have been no such offences committed by him in the last ten years.
The evidence of Mr White’s addiction are the nine drug offences. He has also committed nine traffic offences.
The Offences
Burglary and theft are serious offences, as the maximum penalties provided by the legislature show: R v Oliver (1980) 7 A Crim R 174 at 176.
As Street CJ pointed out in R v Hayes [1984] 1 NSWLR 740 at 742, domestic burglary is a serious offence, particularly because of the effect on the victims.
That is not to say, however, that a burglary of commercial properties is less serious, indeed, such offences have a wide impact on the community, driving up the cost of goods, especially when, as here, property is damaged in order to gain entry. It also risks the viability of the business. The cost is passed on to the community in the increased cost of goods and of insurance premiums.
Clearly the community expects the courts will act to impose meaningful sentences when burglars are caught and convicted. This, hopefully, will also deter would-be burglars when it is learnt that the crimes of burglary and theft are regarded as serious and attract severe punishment.
In this case, there was no particular circumstances of aggravation; indeed, the fact that Mr White activated the alarm on the premises shows a certain level of unsophistication in the offences.
While damage was committed when Mr White entered the premises, that, of course, could have been charged as a separate offence and would ordinarily not be considered a matter of aggravation. See R v De Simoni (1981) 147 CLR 383. Despite that the New South Wales Court of Criminal Appeal held in R v Ponfield (1999) 48 NSWLR 327 at 337; [48] that accompanying burglary with “vandalism and by any other significant damage to property is an aggravating feature”.
Nevertheless, burglary will ordinarily attract a sentence of twelve to eighteen months' imprisonment in the absence of particular aggravating features. See Love v The Queen [2012] ACTCA 8 at [13].
Mr White has expressed remorse for his offending and, particularly, as he knew the owner of the business the subject of his offending. He also expressed that remorse in a letter he wrote to me, which was tendered in the proceedings.
Rehabilitation
Mr White was arrested on 21 May 2013 and has remained in custody since then. He made inquiries about rehabilitation and in July 2013 was assessed as suitable for admission to Canberra Recovery Services, but no bed was then available.
He has continued to investigate rehabilitation options, and on 20 February 2014, was accepted into the Orana Haven Drug and Alcohol Rehabilitation Program at Brewarrina, New South Wales.
On 26 February 2014, however, I released Mr White on bail from 3 March 2014 to attend the Orana Haven program. That program is a comprehensive drug and alcohol rehabilitation program which has a particular structure requiring participation in household chores, maintenance groups and attendance at various therapeutic groups. These include alcohol and drug educational groups, TAFE programs, one to one and group counselling sessions. There are health and mental health checks and the site is visited by a mental health worker, housing, sexual health, probation and parole workers, and also there is access to a general practitioner and psychologist random and full-house supervised urine testing is already carried out.
The program is for ninety days and Mr White has completed the ninety day program. A report provided to the Court stated
During his stay at Orana Haven, Mr White has attended all education and group therapy sessions, participated in all other community activities, including household chores and outings. He has also attended all Alcoholics Anonymous (AA) meetings. All urinalysis and breath tests have returned a ‘nil detected’ result.
...
Mr White is learning to develop skills in stress and anger management. He has also learnt to use the support systems available to him. Mr White has recognised other underlying factors of his chemical dependency and is learning how to change thinking and behaviours associated with addiction. The ability to talk about his problems through assertive and non-aggressive behaviours is a process that Mr White is working on and is showing some progress.
Mr White is also becoming aware of the complicated thought processes and excuses he uses to justify his actions. Mr White has made genuine progress towards overcoming the issues that caused his past drug use and that is vitally needed to continue if he is to maintain recovery.

He also spent five days on leave, without relapse, which was consistent with his conduct in the program, and I had a certificate of completion of the program.

Consideration

I take into account Mr White’s plea of guilty. Although not at the very earliest opportunity, as he initially pleaded not guilty, it was entered in the Magistrates Court at a relatively early stage and entitles him to a discount on the sentence to be imposed. I take into account the purposes of sentencing as set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT).
I have regard to the nature and the seriousness of the offences to which Mr White has pleaded guilty as I have noted them above.
I also take into account the fact that he has been in custody between 21 May 2013 and 3 March 2014. I note that part of that time he was a sentenced prisoner, and I accept the submission of Mr M Thomas, who appeared for the Crown, that a full account of that period of custody may render nugatory the imposition of the sentence of imprisonment for the other offences. Nevertheless, Mr White has been, for ninety days, in a rehabilitation program, which has, of course, truncated if not limited his liberty to a substantial degree, and it seems to me that I can take that also into account.
It is clear that Mr White was affected by alcohol or drugs when the offences were committed but clearly it was in part to feed his drug habit from the proceeds.
I take into account the fact that Mr White has completed the drug and alcohol and rehabilitation program at Orana Haven and the report I have received.
I also take into account Mr White’s subjective circumstances as I have described them above. I accept that he is remorseful and understands the seriousness and effects of the offences he has committed.
I did not have a note of the value of the damage caused by Mr White when entering the premises though I imagine that it would be in excess of $500. I also did not have a note of the value of the property but again it would be significant but not substantial.
I note that Mr White was and accepts that he was entirely responsible for the offence.
I take into account his subjective circumstances including his financial circumstances as set out above.
I note that, after a lengthy suspension, Mr White will be eligible for the return of his driver licence and that this will increase the opportunity for him to gain employment, another important element in his rehabilitation.
The author of the Pre-Sentence Report recommended that Mr White take reasonable steps to address his history of trauma. I note that the Pre-Sentence Report recommended that Mr White was not suitable for a community service work condition to a good behaviour order because of his unaddressed illicit substance use issues. That would now not be relevant, and I could override that recommendation, should I be required to do so.
I also note that he has given an oral undertaking to comply with the periodic detention obligations of an offender, but has been assessed as not suitable, for the same reasons as mentioned above at [51], the same response applies.
Having regard to the seriousness of the offences, however, and taking into account Mr White’s subjective circumstances, I consider that no penalty other than a penalty of imprisonment is appropriate.
I also take into account current sentencing practice.

Mr White, please stand:
1. I convict you of burglary at Braddon on 21 May 2013.
2.I sentence you to fifteen months’ imprisonment, to commence on 23 August 2013, that is to take into account pre-sentence custody and the period that you have spent in rehabilitation. Had you not pleaded guilty, I would have sentenced you to twenty months’ imprisonment.
3.I convict you of theft of electronic equipment on 21 May 2013.
4.I sentence you to nine months’ imprisonment, to commence on 23 August 2013, that is, to be wholly concurrent with the sentence for the burglary. Had you not pleaded guilty, I would have sentenced you to twelve months’ imprisonment.
5.I suspend the sentence today.
6.I require you to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years, with a probation condition that you accept supervision of the Director-General or her delegate and obey all reasonable directions of the person delegated to supervise you, including as to counselling for unresolved trauma issues and any ongoing drug and alcohol treatment or counselling for two years or such lesser period as the person delegated to supervise you considers to be appropriate.

[His Honour then spoke directly to Mr White]

Mr White, your experience in the system probably means I do not need to explain that to you, but I am required to do so. I have assessed the seriousness of the offence, having regard to your personal circumstances, as justifying a period of imprisonment for fifteen months. However, I do not require you to spend any more time in custody, and I suspend that sentence today for a period of two years.

I require you to sign an undertaking, which is a promise, to be of good behaviour, not to commit any further offences punishable by imprisonment, for a period of two years. If you do commit such offences, then you can be brought back before me and I can deal with you for any fresh offences, if they are appropriate to be dealt with here, and also for the breach of the good behaviour order, which can include sentencing you to a further period of imprisonment.

I have also made a probation condition that you be under supervision. That involves a degree of control, but it is also an opportunity for you, if things look like they are going a bit pear-shaped, or not going as well as possible, there is someone independent and objective that you can turn to who has knowledge of and access to some of the options that might be available to you so that you can address whatever is going wrong.

The unresolved trauma issues are something you should talk about. Whether that requires any further counselling or other addressing is a matter between you and the person delegated to supervise you. As to ongoing drug and alcohol treatment, I am sure you recognise, and I am sure Orana Haven has made it clear to you, that that is a lifelong exercise for you now and that you have to be vigilant and continue that. I do not mean that you need counselling or treatment for the rest of your life, but from time to time that may be necessary.

I hope that this is a turning point for you. It seems to me that the Orana Haven experience shows that you are able to address those issues and it is a turning point, and I certainly hope that this is an occasion where this will be the last time you appear in the criminal courts. If the Court has done anything to assist that, then we have done our job, and I hope that you will take the opportunity that we have presented to you and that you won't be seen in the criminal courts again.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 6 August 2014

Counsel for the Crown:  Mr M Thomas
Solicitor for the Crown:  ACT Director of Public Prosecutions
Counsel for the defendant:  Ms T Warwick
Solicitor for the defendant:  Kim Bolas Criminal Lawyers
Date of hearing:  26 February, 5 June 2014
Date of judgment:  5 June 2014