R v Winters
[2022] ACTSC 371
•26 April 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Winters |
Citation: | [2022] ACTSC 371 |
Hearing Date: | 14 April 2022 |
Decision Date: | 26 April 2022 |
Before: | Refshauge AJ |
Decision: | 1. Joshua Luke Winters be convicted of aggravated burglary and sentenced to 18 months imprisonment to commence on 26 November 2021 and end on 25 May 2023. 2. Joshua Luke Winters be convicted of minor theft by joint commission and sentenced to 2 months imprisonment to commence on 26 March 2023 and end on 25 May 2023. 3. Joshua Luke Winters be convicted of damaging property and sentenced to 6 months imprisonment to commence on 26 January 2023 and end on 25 July 2023. 4. Joshua Luke Winters be convicted of aggravated burglary by joint commission and sentenced to 18 months imprisonment to commence on 26 April 2023 and end on 25 October 2024. 5. Joshua Luke Winters be convicted of minor theft and sentenced to 7 months imprisonment to commence on 26 June 2024 and end on 25 January 2025. 6. Joshua Luke Winters be convicted of dishonestly driving a motor vehicle without consent and sentenced to 10 months imprisonment to commence on 26 August 2024 and end on 25 June 2025. 7. Joshua Luke Winters be convicted of theft by joint commission and sentenced to 9 months imprisonment to commence on 26 December 2024 and end on 25 September 2025. 8. Joshua Luke Winters be convicted of driving while disqualified as a repeat offender and sentenced to 6 months imprisonment to commence on 26 May 2025 and end on 25 November 2025. 9. Joshua Luke Winters be convicted of minor theft and sentenced to 2 months imprisonment to commence on 26 September 2025 and end on 25 November 2025. 10. Joshua Luke Winters be convicted of trespass and fined $500, to be paid within 12 months. 11. A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Joshua Luke Winters for 2 years from today, commencing on 26 April 2022 and ending on 25 April 2024, in respect of the primary offence of aggravated burglary of which he has been convicted and for which he has been sentenced to 18 months imprisonment. 12. That Order be extended to the offences of minor theft by joint commission, damaging property, aggravated burglary by joint commission, minor theft, dishonestly driving a motor vehicle without consent, theft by joint commission, driving while disqualified as a repeat offender and minor theft of which Joshua Luke Winters has been convicted and for which he has been sentenced, and which are associated offences of the primary offence. 13. It be noted that convictions for the primary offence and the associated offences have been recorded and that sentences have been imposed for each of them, which convictions and sentences be hereby incorporated into the Drug and Alcohol Treatment Order in the custodial part of the Order. 14. 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, 26 April 2022, until 25 November 2025. 15. Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), Joshua Luke Winters 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 Drug and Alcohol Treatment Order, 26 April 2024, until the end of the total sentence, 25 November 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. 16. For the treatment and supervision part of the Drug and Alcohol Treatment Order:
17. Joshua Luke Winters be directed to appear by electronic means in Court on Friday 6 May 2022 at 12:30 pm. 18. Joshua Luke Winters 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. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Aggravated Burglary – Minor Theft – Damaging Property – Dishonestly Driving a Motor Vehicle Without the Owner’s Consent – Theft – Driving While Disqualified as a Repeat Offender – Trespass – Joint Commission – Subjective Circumstances – Childhood Disadvantage – Sentence of Imprisonment – Drug and Alcohol Treatment Order |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 85 Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 12A, 33, 35, 46J, 46K, 63, 80S, 80W, 80Y, 80ZA Crimes Act 1900 (ACT) s 116 Criminal Code 2002 (ACT) ss 45A, 308, 312, 318, 321 Public Order (Protection of Persons and Property) Act 1971 (Cth) s 11 Road Transport (Driver Licensing) Act 1999 (ACT) s 32 Road Transport (General) Act 1999 (ACT) s 72 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Channon v The Queen (1978) 33 FLR 433 Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 Dawson v The Queen [2019] ACTSC 9 Douglas v The Queen (1995) 56 FCR 465 Elphick v The Queen [2021] ACTCA 35 Haisman v Smelcher [1953] VLR 625 Halden (1993) 9 A Crim R 30 Hili v The Queen [2010] HCA 45; 242 CLR 520 Lloyd v The Queen [2022] NSWCCA 18 Meissner v The Queen (1995) 184 CLR 132 O'Brien v The Queen [2015] ACTCA 47 Olney v Martin [2017] ACTSC 79 Poole v Edwards [2016] ACTSC 159 Quzag v The Queen (No 4) [2016] ACTCA 27 R v Bessant [2020] ACTSC 365 R v Button [2002] NSWCCA 159; 54 NSWLR 455 R v Crawford (No 1) [2020] ACTSC 245 R v Davey (1980) 50 FLR 57 R v Davis [2015] ACTSC 101 R v Deng [2022] ACTSC 143 R v Forrest (No 2) [2017] ACTSC 83 R v Foster [2021] ACTSC 229 R v Govinden [1999] NSWCCA 118; 106 A Crim R 314 R v Grey [2020] ACTSC 40 R v Hancock [2021] ACTSC 52 R v John (No 2) [2017] ACTSC 186 R v McCurley [2020] ACTSC 140 R v McGrail [2016] ACTSC 142 R v McHughes [2021] ACTSC 92 R v McMahon [2014] ACTSC 280 R v Norton [2019] ACTSC 111 R v Ogilvie [2015] ACTSC 296 R v Oliver (1980) 7 A Crim R 174 R v Pearson [2020] ACTSC 375 R v Reid (No 1) [2021] ACTSC 334 R v Ridley [2014] ACTSC 382 R v Thompson (No 3) [2017] ACTSC 53 R v Tonna (No 1) [2020] ACTSC 360 R v Ware [2016] ACTSC 264 R v Winters [2019] ACTSC 289 Singh v The Queen [2017] ACTCA 17 Storey (1984) 6 Cr App Rep (S) 104 |
Texts Cited: | Australian Institute of Family Studies, Children’s Exposure to Domestic and Family Violence (CFCA Paper No 35, 2015) |
Parties: | ACT Director of Public Prosecutions ( Crown) Joshua Luke Winters ( Offender) |
Representation: | Counsel N Deakes ( DPP) E West (14 April 2022), C Duffy (22 April 2022) ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) | |
File Numbers: | SCC 25 of 2022 SCC 26 of 2022 |
REFSHAUGE AJ
It is now known, through careful research, that many factors are involved in people committing crimes. While offenders must take responsibility for their actions, they must be “accountable for his or her actions”, as s 7(1)(e) of the Crimes (Sentencing) Act2005 (ACT) (Sentencing Act) specifies. It is also recognised that the criminal justice response to crimes must include the promotion of the rehabilitation of the offender (s 7(1)(d)). It is perhaps relevant that the latter purpose appears in the section before the former, though too much cannot be read into this.
Nevertheless, those factors, which include poverty, homelessness, experiences of trauma, mental health challenges, experiences of family violence, disruption of education, childhood neglect and abuse, including sexual abuse, social exclusion and physical health issues such as an acquired brain injury, hearing impairment or even foetal alcohol disorders are now better understood. There are now methods to address them and to help the people who experience them to move away from the suffering the effects of them.
In the context of the Drug and Alcohol Sentencing List, the relevant issue is dependence on alcohol or drugs or both, often created because of early exposure to alcohol or drugs which can explain their entry into crime. See Douglas v The Queen (1995) 56 FCR 465 at 470.
The use of such substances can also lead to associations with antisocial people. Often, of course, there are multiple issues, especially mental health or family violence issues, which are sometimes also able to be addressed by the intensive intervention available under a Drug and Alcohol Treatment Order (Treatment Order).
Now appearing for sentence is Joshua Winters, who has pleaded guilty to two charges of aggravated burglary (one by joint commission), a charge of dishonestly driving a motor vehicle without consent, a charge of theft by joint commission, three offences of minor theft (one by joint commission) and one charge each of driving whilst disqualified, damaging property by joint commission and trespass.
Mr Winters has sought, on sentencing, that a Treatment Order under s 12A of the Sentencing Act be made.
On sentence, the Crown tendered, without objection, the Crown Tender Bundle, which included the required cover sheet, the committal and transfer of charges documents, an Agreed Statement of Facts, Mr Winters' Criminal History, a Victim Impact Statement and photographs of various aspects of the offending.
Also included were relevant documents for consideration of a Treatment Order. These included the Drug and Alcohol Treatment Assessments (Suitability Assessments) prepared under s 46J of the Sentencing Act, being the Drug and Alcohol Sentencing List Suitability Assessment dated 23 March 2022, prepared by Alcohol and Drug Services, which also included a Case Plan and the Drug and Alcohol Treatment Assessment dated 5 April 2022, prepared by ACT Corrective Services. The Tender Bundle further included a Forensic Mental Health Drug and Alcohol Sentencing List Assessment dated 25 February 2022 and a Drug and Alcohol Sentencing List Eligibility Assessment dated 25 February 2022. These latter were the Eligibility Assessments as described in R v McHughes [2021] ACTSC 92 at [7].
The Victim Impact Statement was read out by counsel. This is important so that the voice of a victim is heard and helps to impress on an offender the consequences of his or her actions in the context of a sentencing hearing, which is otherwise almost wholly directed towards him or her. It provides an insight into what has been done and the consequences of it to other persons, as opposed otherwise to the concentration in sentencing on the offender’s personal characteristics and what he or she has done.
Ms E West, counsel for Mr Winters, tendered, without objection, progress notes from the Canberra Hospital from 17 December 2021 and 21 February 2022 relating to attendances by Dr John Nguyen and Dr Cameron Edgell, respectively, on Mr Winters, a letter to the Court from Mr Winters, a letter to the Court from his sister, Ms T Winters, and a Drug and Alcohol Sentencing List Referral to Treatment Form, undated, from Canberra Health Services, making a reference to the Canberra Recovery Services.
A consent form signed by Mr Winters for the making of the Treatment Order had been filed in Court.
None of the contents of the admitted documents were challenged.
Mr N Deakes, counsel for the Crown, also tendered, without objection and with no challenge to its contents, a certificate under s 72(1)(a) of the Road Transport (General) Act 1999 (ACT), relating to Mr Winters' driver licence and documents relating to his prosecution in the ACT Magistrates Court on 22 May 2019 for an offence of driving whilst disqualified as a repeat offender.
Both counsel provided helpful, thoughtful and comprehensive written submissions supplemented by oral submissions, which included answering questions from the Court and engaging in insightful discussion with the Court.
From this material, the Court makes the following findings.
The facts
Sometime between 23 and 26 November 2021, the ACT registration plates affixed to a motor vehicle parked at its owner's residence in Red Hill, ACT, were stolen. These plates were valued at $60. Though they are said to be the facts to found one of the charges preferred against Mr Winters, namely one of minor theft charges, there is no actual allegation in the Agreed Statement of Facts to assert that it was Mr Winters who stole them. Those facts would, therefore, be insufficient to prove such an offence.
It must be assumed, therefore, that reliance for this is placed on Mr Winters' plea of guilty to that offence, which admits all the elements of the offence (Meissner v The Queen (1995) 184 CLR 132 at 157) and that has been relied on for this important element of the offence.
An Agreed Statement of Facts is not merely the allegations of the Crown. On sentencing, an Agreed Statement of Facts is a statement of what is now accepted by both parties as to the actual factual situation. Hence, for example, the unnecessary use of “the Crown submits” still seen in some of these documents (along with statements such as “the Crown contends”) is otiose, as it may otherwise appear to require a disputed facts hearing: R v Deng [2022] ACTSC 143 at [9].
On 25 November 2021, early in the morning, a burglary was committed at a residence in O'Connor, ACT, when, inter alia, the keys to a Honda Jazz motor vehicle were stolen and the motor vehicle itself was also then stolen. The owner reported the matter to police. It is not alleged that Mr Winters was involved in either the burglary or the theft.
That vehicle, however, with the stolen registration plates affixed, was later driven early on 27 November 2021 to a residence in Chisholm where the male occupants broke into a Mazda Bravo motor vehicle and one of them drove it away. The other drove the Honda Jazz motor vehicle away. No charges have been laid against Mr Winters arising out of these events, other than in relation to later charges arising out of property that was in these motor vehicles.
Later that morning, the two vehicles were driven to a fast food outlet in Weston, ACT, and parked there. The store's CCTV captured the arrival of the vehicles.
CCTV footage from the store captured an unknown male approaching the front of the store and smashing the front door with a sledgehammer, which fell into the store. While that was happening, Mr Winters walked to the store from the direction of one of the stolen vehicles. These events constituted the offence of damaging property by joint commission. There was no specific value that the damaged caused in the evidence, but it was accepted to be less than $5,000.
Mr Winters and the other offender then entered the store and searched through a number of cupboards and drawers. Their activities were also captured on CCTV. There was, however, no evidence of damage being caused within the store. These were the events that lead to the charge of aggravated burglary. The circumstance of aggravation was that Mr Winters was in company when committing the burglary.
Mr Winters and the other offender then left the store at about 4:40 am, taking with them two bottles of soft drink each. The four bottles had a replacement value of $18. It is most helpful to have this evidence. These facts formed the basis of the offence of minor theft by joint commission.
The two offenders later abandoned the Mazda Bravo motor vehicle in Duffy and drove the Honda Jazz motor vehicle to Denman Prospect, ACT, where they parked it, at about 5:02 am, outside some residential units adjacent to a construction site. Both offenders entered the construction site without any permission and walked behind a shipping container. They walked to the site office and attempted to open the door to it, but the locking device prevented that. They then returned to the motor vehicle. This was the event that resulted in the charge of trespass.
Later the same day at about 5:23 am, the two used sledgehammers to break into a cafe in Casey Market Town, Casey, ACT. They entered the store. This led to the charge of aggravated burglary. It was an offence by joint commission.
During the burglary, several hundred dollars in Australian notes and several hundred dollars in coins were taken in an ANZ bank branded cloth bag and a Suncorp bank card was also taken. There was no evidence of damage being done within the cafe.
Mr Winters was seen in Evatt driving the Honda Jazz motor vehicle, stopping it and searching it. Shortly afterwards, police arrived and spoke to Mr Winters. They noted the incorrect registration plates for the vehicle affixed to it. They searched the vehicle and found the ANZ bank cloth bag containing $365 in cash and the Suncorp card, not in the name of Mr Winters. He was charged with the offence of minor theft for this.
They viewed some CCTV footage from a neighbouring residence, which showed Mr Winters driving the vehicle there. As a result, he was charged with dishonestly driving a motor vehicle without the owner's consent.
The motor vehicle was then seized by police and taken to a police facility, where it was further searched. Apart from the cash and bank cards earlier seized and the soft drink bottles also already the subject of charges, police also found some items: a compressor, esky and green first aid kit that had been stolen from the Mazda Bravo motor vehicle and later some other items, including a soft drink bottle, clothes and particularly a large sledgehammer. The fiberglass canopy that had been on the vehicle when it was taken, however, was not to be found and was also part of the property stolen.
These items together were alleged to be worth more than $2,000 and Mr Winters accepted that by his plea. There was no evidence, however, of the precise value of these items. These facts lead Mr Winters to being further charged with theft by joint commission.
His criminal record shows that, on 22 May 2019, he was convicted of driving whilst disqualified.
The tendered certificate of driver licencing shows that, on 22 May 2019, Mr Winters had been disqualified from holding or obtaining a licence for five years, which ended on 21 May 2024. He was, accordingly, disqualified as at 27 November 2021 from holding or obtaining a licence and, accordingly, he was charged with driving whilst disqualified as a repeat offender.
The certificate further certified that Mr Winters was not recorded as “holding a driver licence in any state or territory”. It appears that he has never held such a licence.
The proceedings
Mr Winters was arrested on 27 November 2021. He was refused bail by police. As that date was a Saturday, he did not appear in the ACT Magistrates Court until Monday 29 November 2021. He was charged with dishonestly driving a motor vehicle without the owner's consent and driving whilst disqualified. He applied for bail, which was refused, and he was remanded in custody. The proceedings were adjourned.
He appeared again on 20 December 2021, where he indicated that he would plead guilty to these offences. He was also charged then with the aggravated burglary at Casey, the aggravated burglary at Weston, damaging property and minor theft by joint commission. He also indicated a plea of guilty to these four offences. He was further remanded in custody.
On 27 January 2022, he appeared in the ACT Magistrates Court and was further charged with the offences of minor theft of the items from the Mazda Bravo motor vehicle and trespass. He was further remanded in custody.
After another adjournment, he appeared in the ACT Magistrates Court on 3 February 2022 and entered pleas of guilty, in accordance with the indications given, to the charges of dishonestly driving a motor vehicle without the owner's consent, aggravated burglary at Weston, aggravated burglary at Casey, minor theft by joint commission at Weston, damaging property and trespass.
It is not quite clear why, but the proceedings were then adjourned until 7 February 2022, perhaps because there were further offences to be preferred or to determine how to proceed. He remained in custody.
In any event, he appeared on that day and was further charged with a minor theft of the items at Casey found in the Honda Jazz motor vehicle, the minor theft of the registration plates and the minor theft of the items from the Mazda Bravo motor vehicle. He entered pleas of guilty then to the charges of theft from the Mazda Bravo motor vehicle, driving whilst disqualified as a repeat offender, the minor theft of the items found in the Honda Jazz and the minor theft of the registration plates.
Mr Winters was then committed for sentence to this Court and the summary charges were transferred as related offences. It was indicated that he should appear in the Drug and Alcohol Sentencing List. He remained in custody.
He appeared on 25 February 2022 in this Court and, after Eligibility Assessments recommended that he was suitable to be assessed for a Treatment Order, Suitability Assessments were directed to be prepared and a date was set for sentence. He remained in custody.
He has, therefore, been in custody since 27 November 2021 for 151 days. This pre-sentence custody shall be taken into account in the sentence to be imposed.
The offences
Having pleaded guilty, the Court must now sentence Mr Winters for these offences. Such a sentence must be just and adequate: Singh v The Queen [2017] ACTCA 17 at [93].
In order to achieve that, the court sentencing an offender is required by s 33(1) of the Sentencing Act to take account of a number of specified matters, though not limited to those matters, thus enabling general common law principles also to be considered.
Among these matters, as set out in s 33(1)(a) of the Sentencing Act, the nature and circumstances of the offences must be considered. This requires the Court to consider the facts of the offences, as have been set out above (at [16]–[34]), the legislated maximum penalty and the current sentencing practice, which identifies from the collective wisdom of judges (R v Oliver (1980) 7 A Crim R 174 at 177) the relevant factors involved in the actual commission of the offences which aggravate or mitigate the version of the offence for which the offender is actually to be sentenced. Most offences can be committed in a variety of ways in a diversity of circumstances.
Aggravated burglary is an offence against s 312 of the Criminal Code 2002 (ACT), which provides for a maximum penalty of 20 years imprisonment or a fine of $320,000 or both. This legislated maximum shows that, within the criminal calendar, it is a very serious offence and to be dealt with by the courts accordingly.
One of the offences committed in Casey is, however, charged as being committed by joint commission. Thus, under s 45A of the Criminal Code, which provides that where a person enters into an agreement with another person or other persons to commit an offence, and the offence is then committed, each party to that agreement is taken to have committed that offence and is punishable as if the person had committed the offence.
This is a little odd in this situation, since the offence is aggravated burglary which, by s 312 of the Criminal Code, is committed when the offence of burglary, “is committed in company with one or more other people”. The phrase “in company” is not defined, but it has been the subject of judicial consideration. See R v Button [2002] NSWCCA 159; 54 NSWLR 455.
In R v Davis [2015] ACTSC 101, the Court applied it in the case of aggravated burglary, holding (at [45]) that what was required was “participation in a common purpose”. That is what s 45A of the Criminal Code also requires. Here, where the facts in the Agreed Statement of Facts are that both Mr Winters and the co-offender broke into the cafe, it is entirely clear that this is “in company” and that the allegation of joint commission adds nothing to the offence. No submission was made that this allegation of joint commission made the offence, by virtue of that allegation, more or less serious than were the offence simply to have been charged as an aggravated burglary.
The relevant factors for burglary have been identified in R v Hancock [2021] ACTSC 52 at [33] after a review of the relevant authorities. While aggravated burglary is a more serious version of the same offence, these factors are also relevant. It is not necessary to list them, but to identify those that are relevant here.
Both properties were commercial properties and the burglaries were committed at a time when it would not ordinarily be expected that any persons were on the premises. There was no evidence to show that there were any people there, even contrary to expectations.
Damage was done in order to effect entry in both cases. In both cases, the doors of the premises were attacked with sledgehammers, one in the case of Weston, two in the case of Casey. The cost of the damage was not in evidence, though it would have been reasonably significant. In the case of the burglary at Weston, the damage was the subject of a separate charge. It alleged that the damage was less than $5,000, though that is a large range. In the circumstances, the sentence for that offence would be largely, if not wholly, concurrent on the sentence for the burglary as the damage done either on entry or while in a premises the subject of a burglary is also relevant to the seriousness of that offence.
There is little evidence of the motivation for the offences. Mr Winters did explain to the authors of the Suitability Assessment that he had been using heroin and methamphetamines significantly after his most recent release from custody and, “a mate asked me to help him”, that mate clearly being also a drug user. He said that his use of illicit substances, as well as having been awake for six nights prior to the offending contributed to the offending.
There was some premeditation and planning, but little of that and the offences were relatively unsophisticated. No masks were worn by the offenders and their identities were clearly shown on the CCTV footage. Clearly, the sledgehammers would have had to be obtained and the co-offender had co-opted Mr Winters for the offending. There does not, however, seem to be any significant planning or preparation.
The property stolen was not particularly substantial, though in both cases it was the subject of separate charges. As noted in R v McMahon [2014] ACTSC 280 and in many other decisions of this Court, the sentences for the burglary and the thefts committed at the same time will generally be concurrent. See also Dawson v The Queen [2019] ACTCA 9 at [35]. These offences are dealt with further below.
Such offences, however, are a serious disturbance of the peace of the community and the capacity for its members and their businesses to develop and flourish. They further cause inconvenience when, for example, the doors which protect the businesses are broken and need urgently to be repaired or replaced so that the business may continue to be protected.
There were no other particularly aggravating factors in the offending in either case, though, of course, it was an aggravated form of burglary and the Crown quite properly and accurately described them as, “relatively unremarkable versions of the offence”.
Dishonestly driving a motor vehicle without the owner's consent is contrary to s 318(2) of the Criminal Code and attracts a maximum penalty of 5 years imprisonment or a fine of $80,000 or both. It is, thus, still a serious offence, but much less serious than the aggravated burglary offences.
Again, there have been considerations addressing the relevant factors of this offence identified in a number of cases including, in particular, R v Reid (No 1) [2021] ACTSC 334 at [26]–[28].
Though the maximum penalties are the same, the offence of dishonestly taking the motor vehicle without the owner’s consent is regarded as more serious than dishonestly driving it without their consent.
The length of time of the driving and the distance travelled are relevant, but often the evidence is unclear. Indeed, it will often be very difficult for investigators to know or find that information out. Here it can be reasonably inferred that Mr Winters drove the vehicle to the Weston store, as two vehicles had gone there and Mr Winters was seen walking from it while the other offender attacked the door of the store. It is impossible, however, to know on the evidence from where Mr Winters had driven the motor vehicle.
He then can be reasonably assumed to have driven the vehicle away until the Mazda Bravo motor vehicle was abandoned and he drove the co-offender to Denman Prospect. He may or may not have driven it to Casey, but he was found in the driver’s seat at Evatt, so again, he had likely driven it there. The events at Weston occurred around 4:38 am and he arrived at Evatt and was seen stopped at about 7:10 am. So, the driving was at least two and a half hours, not an insignificant period of time. The distance is difficult to calculate, but it was quite across a large part of Canberra that would be something of the order of 35 to 50 kilometres. There was, however, nothing remarkable about the manner of driving the motor vehicle.
There was evidence of damage to the vehicle in the Victim Impact Statement, though it was recovered and, presumably, after a forensics examination returned to the owner who had been also significantly inconvenienced by being deprived of its use for at least the best part of three days. The car, it appears, had to be extensively repaired, though it appears that most of the repairs were to the bodywork.
It is also relevant that the vehicle was used in the commission of other offences, a factor of aggravation.
There was, however, no evidence or allegation that Mr Winters had stolen the vehicle initially, as noted above.
Theft is prohibited and, therefore, criminalised by s 308 of the Criminal Code, which prescribes a maximum penalty of 10 years imprisonment or a fine of $160,000 or both. It is, thus, quite a serious offence. The charge against Mr Winters was, too, charged as a joint commission offence.
There are also three offences of minor theft, which it is convenient to deal with at the same time. The theft offence and one of the minor theft offences are alleged to have been committed by joint commission, which is also regulated by s 45A of the Criminal Code, as noted above (at [48]). This is appropriate because it was unclear who actually took the bottle from the Weston store, but both were there at the Weston fast food outlet to steal and both were jointly responsible for the theft of the four bottles of soft drink.
The difference between the offence of theft and that of minor theft is in the amount of property stolen. Minor theft is only available when the value of the stolen property is less than $2,000. Theft is an offence which has no such limit, including that it can be charged for property valued at less than $2,000 and so is a parallel offence for the amount stolen of less than $2,000.
Minor theft is made a crime by s 321 of the Criminal Code for which the legislature has set a maximum penalty of six months imprisonment or a fine of $8,000 or both.
For theft, including minor theft offences, the most relevant factor is the value of the property stolen. Unfortunately, as is often the case, there is little clear evidence here of the actual value. The property stolen from the fast food outlet at Weston was valued at $18; the property taken from the café at Casey was valued at $365 when recovered; the property taken from the Mazda Bravo motor vehicle, however, was valued at more than $2,000, but it was unclear how much more, though likely to be significantly more than that, given the nature of the canopy.
Of course, value also includes non-monetary value, such as the inconvenience caused by the loss of the stolen items or the sentimental value of them, which may make some irreplaceable.
In this case, all but those stolen from the Mazda Bravo motor vehicle have been in such a category as to be related to the employment, presumably, of the owner, as the latter items appear to be. The assertion of the Crown that it would have caused the owner inconvenience was not challenged by Mr Winters.
It is a crime to drive while disqualified as a repeat offender, made so by s 32(1) of the Road Transport (Driver Licensing) Act 1999 (ACT) which sets a maximum penalty of imprisonment for one year or a fine of $16,000 or both.
This offence, as explained in R v Tonna (No 1) [2020] ACTSC 360 at [30] is a serious offence, as it amounts to a defiance of a court order. Indeed, in Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 at 306–8, it was noted that in some jurisdictions it is ordinarily visited by a sentence of imprisonment, though that may not apply so much in the Territory: Poole v Edwards [2016] ACTSC 159 at [118]. It is also an undermining of the regulatory regime for driving, which is, of course, a potentially dire and dangerous, indeed possibly lethal, activity. Again, the length of driving, both in terms of time but in this case perhaps more importantly distance, is highly relevant. That has been identified, so far as it can be, as set out above (at [63]) and is not an insignificant length of driving.
In this case, the driving is not very proximate to the imposition of the disqualification — about 18 months later which moderates the seriousness of the aggravating factor.
There is, of course, no legitimate reason for the driving, such as an emergency. Indeed, it was so that offences could be committed, which increases the severity of the offence, making it, it appears, a contumacious one.
It is also relevant that not only has Mr Winters never held a driver licence in the Territory, he has been dealt with by the courts of this Territory for seven prior offences of disqualified or unlicenced driving, which reinforces the appearance of complete disregard he displays towards the need to be licenced before he drives.
All these matters mean that the offence as committed by Mr Winters is a serious version of the offence.
Damaging property where the damage caused does not exceed $5,000 is proscribed by s 116(3) of the Crimes Act 1900 (ACT) and the section provides that the maximum penalty is two years imprisonment or a fine of $8,000.
As noted in Halden (1993) 9 A Crim R 30 at 36, the amount of damage caused is a primary factor, but, as noted in Storey (1984) 6 Cr App Rep (S) 104 at 107, by no means the only relevant factor. The circumstances in which the offence has been committed is also relevant: R v Ware [2016] ACTSC 264 at [60]. That the damage may be covered by insurance is not necessarily a matter of moderation, since it has a flow-on effect because of the effect on premiums, which affect the insured, but also the premiums of many others.
The offence was committed in the course of committing another offence, namely the aggravated burglary, also serious, though this is relevant to the degree of concurrency between the sentences for the two offences.
The final offence is trespass, which is created as an offence by s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth) and legislates the maximum penalty of a fine of $2,220.
Clearly, the place where the offence is committed is relevant. Thus, for example, trespass in a residence, especially at night or where there are vulnerable occupants is more serious: Olney v Martin [2017] ACTSC 79 at [14], [18]. See also R v Pearson [2020] ACTSC 375 at [32], where it is also noted that the time taken during the trespass is relevant. Any damage done in the illegal entry or while inside is relevant, though if that is charged separately it will have to result in a sentence which is wholly or at least substantially concurrent with that other offence.
Trespass is an element of the offence of burglary and aggravated burglary, so relevant factors from those offences may also be relevant, though some may also be irrelevant. Further, when a trespass breaches a fundamental right, such as privacy, it will be more serious: R v Thompson (No 3) [2017] ACTSC 53 at [76]. A rather incidental or careless offence would clearly be less severe: R v Grey [2020] ACTSC 40 at [13].
It is also relevant to take into account whether the trespass is part of some other offence. Thus, as was said in Haisman v Smelcher [1953] VLR 625 at 628, where it was said of the offence of trespass that:
It is not directed at behaviour that may, because of an infringement of some civil right, give rise merely to a civil remedy; it is designed to make punishable conduct that is preparatory to or in furtherance of some criminal purpose, or which, by reason of its violating recognised standards of decency, tranquillity and decorum and the accepted usages of the community, is likely to put occupants in fear or apprehension […].
That is partly relevant here, although there were no persons on the premises and therefore some of the reasoning in that case is not relevant, but it was part, in this case, of an intention to enter the site office of the construction site. Mr Winters was not entitled to have access to this office and it may be assumed that he might have been interested in either taking property or other illegal activity, thus preparatory to such criminality.
Subjective circumstances
Having considered the nature and circumstances of the offence, both s 33(1) of the Sentencing Act, in a number of paragraphs, and the common law require a consideration of the personal circumstances of the offender in order to impose the appropriate sentence.
Mr Winters was born 28 years ago in Queensland, the eldest of his parents' seven children. He and his siblings were exposed to the extensive and escalating verbal, physical and sexual abuse of his mother by his father. He, as the eldest, saw it frequently. It ended with his father's imprisonment for the very serious offence of attempted murder when Mr Winters was seven years old. The family came to the notice of Child and Youth Protection Services and Mr Winters was placed in out of home care from time to time. He would run away from those placements, however, and return to his mother. Some of his siblings were also placed in out of home care.
These experiences, having resulted in him suffering complex Post-Traumatic Stress Disorder (cPTSD), and he experiences nightmares, flashbacks and insomnia. It also led him into drug use.
His mother, unsurprisingly, suffered depression and later other mental health issues and substance abuse. Nevertheless, after her marriage to Mr Winters' father dissolved, she remarried and had four more children. This was a partnership not marred by family violence, but because of the damage that the earlier abuse and mistreatment had caused to Mr Winters' mother, she struggled and, in the words of Mr Winters, she had a, “really rough patch” because of his biological fathers' earlier activities. As a result, the new relationship also ended.
Mr Winters, however, has a strong and positive relationship with his step-father, but his step-father is unfortunately currently involved in substance use. Mr Winters, however, had a good ongoing relationship with his siblings and his mother despite her relocating to Victoria via the New South Wales south coast.
Mr Winters did, of course, attend school, but disengaged. He was repeatedly suspended for fighting, substance abuse and causing police intervention. He was subsequently expelled, leaving school at age 12. He has had no further formal education other than achieving some trade certificates, a White Card, Asbestos Awareness Card and a forklift operation licence. This allowed him to gain some employment in the construction industry, though limited, as it was interrupted by him spending time in custody.
He says that he has been in custody for about 11 years of his whole life. When the early age, when he could not be imprisoned, is taken into account, that is a hugely distressing situation, given the significantly regrettable truth of a comment of the Court when recently sentencing him in 2019 that, “[h]e is fast approaching the stage where he should consider changing his permanent address to the AMC because he is likely to be in and out of that institution for many years to come”: R v Winters [2019] ACTSC 289 at [7]. There was some expression there of hope, apparently, in an unexplained exhibit then tendered. Unfortunately, as these offences show, that glimmer of hope has not yet eventuated into a redirection of his life.
Mr Winters has had some intimate relationships, but they have not lasted. His longest relationship was with a partner with whom he had been engaged since they were 11 years of age and, since they were 15 years old, have lived together at various times.
Although he has no children, he regards that partner's child as his step-child with whom he has a supportive relationship.
Apart from infection with Hepatitis C some years ago, Mr Winters has had no physical health issues. His mental health, however, is very different. As noted above, he has been diagnosed with cPTSD, confirmed by the progress notes of the medical practitioners in evidence. As well as the violence of his father, he also witnessed a cousin hit by a car while crossing a road one evening, which set his rehabilitation back. He has been able to access counselling through the Victims of Crime program for approximately seven years, but he has some residual symptoms, though recent assessments when entering into custody and for the eligibility assessments showed no pervasive symptoms of any major mental illness.
Alcohol and drug use started early for Mr Winters. He first consumed alcohol when he was 12 years old. It did not create problems for him, however, though he did drink to excess occasionally, remarking, rather interestingly, that his drunkenness has never “exceeded social norms”. He also started smoking tobacco at age 12 and now smokes about 20 to 25 cigarettes a day. He did quit use for about a year, going “cold turkey”, but started again when he re-entered custody.
Mr Winters started using cannabis when he was 13 years old, though another report suggested 15 years old. That may have been when he escalated his use, which was significant in his later teens and into his twenties. He has, as described, “gotten over” it and is now only using it by “a few puffs” occasionally and not seeking it out.
Methamphetamine, however, is one of his main drugs of choice. He started using at 14 years of age, through intravenous injection from the beginning. By the time he was taken into custody for these offences he was consuming one gram every day. His last use, however, was on 25 November 2021.
His other major drug of choice is heroin, which he also started at age 14, also by intravenous injection. Depending on its purity, his daily use was one half to one gram. By five years ago he was using up to 1.5 grams per day, but, by the time he was taken into custody most recently, he was using half a gram daily.
He has briefly used MDMA/Ecstasy once in his lifetime and non-prescribed benzodiazepines to manage the brief periods of withdrawal. He does not appear to have used other drugs.
He was prescribed methadone as part of an opioid maintenance therapy program about seven years ago, but in custody has received Buvidal therapy, which he prefers. He was compliant with the therapy.
Mr Winters has engaged in treatment for alcohol, tobacco and other drugs over the years. When he was 15 years old, he entered a Ted Noffs Foundation residential drug rehabilitation facility, but drug use led to him being asked to leave before he completed the program. He did attend the Triple Care Farm, a residential drug and alcohol rehabilitation agency in the New South Wales southern highlands for 16 to 24 year olds conducted by Mission Australia. It specialises in young people with comorbid drug dependency and mental illness. There was no evidence of how he went at the program. He has also engaged in some other programs as SMART recovery (see R v McGrail [2016] ACTSC 142 at [78]–[80]), a program referred to in evidence as ADAPT and some counselling at Directions Health Services.
Mr Winters has a really depressing and serious criminal history which does justify the Court's pessimistic prognosis referred to above.
[Redacted for legal reasons].
As an adult, he has 33 offences on his record. Most of these are dishonesty offences, including five burglary offences and two aggravated burglary offences. A good number of traffic offences are also included, including some “technical driving offences” (R v Norton [2019] ACTSC 111 at [6]), but also including dishonestly taking, driving or riding in a motor vehicle without the owner's consent. As he said, as noted above (at [94]), he has spent much of his life in incarceration.
Worryingly, he has on eight occasions been formally dealt with by the courts for breaching community-based orders. This reflects the ACT Corrective Services Suitability Assessment, which reported that his compliance with community-based supervision is considered generally unsatisfactory.
Apart from the current offence of trespass, which he has not previously committed, he has committed offences of the kind for which he is currently to be sentenced on at least, and often many more than, two occasions in the past, except that he has only one prior offence of damaging property on his record.
Mr Winters wrote a letter to the Court in which he showed a recognition of the destructive hold that his dependence has had on him, finding that it was too easy, after some rehabilitation, to fall “back in to old habits and come (sic) back to jail”. He recognises what he has lost in that his dependence and incarceration has “cost me every good thing iv (sic) ever had in my life”. He seeks a program which will build on the support from his family and lead him into a pro-social lifestyle.
This plea is supported by his sister who has written to the Court also offering support for him. She writes that:
I strongly believe that with the right supports in place including drug and alcohol programs and placement, therapy for his childhood trauma and mental health, family support and financial support to assist him on his road to recovery and a normal life he will achieve this.
Mr Winters engaged enthusiastically with the Suitability Assessments. He was motivated and seeking, at least initially, residential drug rehabilitation. He was willing to commit. He could, at some stage in the program, live with his partner, but that is presently deemed to be unsuitable for someone under a Treatment Order, though the reasons were not stated. That can be reassessed at the end of any residential program.
Mr Winters does seem to be at a crossroads. Such an assessment must always be approached with caution and evaluated, especially in the light of actions taken as well as words spoken: see R v Govinden [1999] NSWCCA 118; 106 A Crim R 314 at 319; [35].
Nevertheless, his continued incarceration has not been successful and it is a form of madness to keep doing the same thing expecting a different outcome.
Victim Impact Statement
One of the victims of his offence was a 94 year old gentleman who was the owner of the Honda Jazz motor vehicle which Mr Winters was illegally driving.
The victim's son provided a victim impact statement setting out in most distressing detail the effect the deprivation of the vehicle has had on his father.
His father was required to attend appointments at an older person's oncology clinic at Woden related to a fall at his home on 5 November 2021. His wife had also been admitted to hospital on 17 November 2021 and was not discharged until 20 December 2021.
The first the victim knew of the loss of his car was when informed by police who, “standing at the foot of his bed woke him up and informed him” of the loss of his car.
The car was recovered and, after police examination and while the insurer paid part of the costs of repairs, less the excess, it was not returned to the victim until late January because of repair delays over the Christmas holiday period.
The stress caused by this disruption to the victim’s medical appointments and treatment, as well as to the support the victim wished to provide to his 89 year old wife was considerable, together, of course, with the inconvenience and loss. The victim's son was also very stressed about the consequences for his father and dealing with him had, “put on hold” his own life.
These are the harms that are specific to the victims and do show that the general level of harm that can be identified by Courts for the offences can be so much less than the actual experience, in particular circumstances, from time to time. This must be taken into account on sentence.
Childhood disadvantage
As explained in R v Deng at [152]–[153], the courts accept that childhood disadvantage with exposure to family violence, disrupted education and similar matters leading to turbulent and traumatic upbringing can be relevant to sentencing. Such experiences, or perhaps a lack of experience of, for example, a good education, the availability of appropriate role models and a stable and secure upbringing guided by good parenting are important and missing from persons who experience that childhood disadvantage.
Clearly, Mr Winters has suffered such disadvantage and that is important, and it was raised squarely by Ms West and not controverted by the Crown.
Thus, the Australian Institute of Family Studies’ report Children’s Exposure to Domestic and Family Violence (CFCA Paper No 35, 2015) shows that exposure to family violence can lead to destructive behaviours, low school attendance, poorer academic outcomes, increased aggression, lack of emotional control and impaired cognitive functioning. These are not far from many of the experiences of Mr Winters, which is consistent with the evidence.
The courts have held that such experiences are relevant to sentencing and to the level of moral culpability of the offender: Bugmy v The Queen [2013] HCA 37; 249 CLR 571. Further, the High Court has there accepted that, despite the passage of time and, importantly, the continuing commission of criminal offences and the sentencing consequences, the effect of such disadvantage on the moral culpability of the offender and the moderating effect on sentence does not abate over time.
Thus, this is an important factor to take into account when sentencing Mr Winters.
Current sentencing practice
The current sentencing practice mandated by the legislature in s 33(1)(za) of the Sentencing Act as a factor to be considered includes the sentences actually currently being imposed. This is in addition to the identification of aggravating or mitigating factors in the assessment of the objective seriousness of an offence, which are then considered with all the other relevant factors including the personal circumstances of the offender.
This factor can be assessed by accessing the ACT Sentencing Database, which records many, but not all, of the sentences imposed for offences by Territory Courts. This gives a snapshot of the approach to sentencing in this Territory, but has limitations.
For example, it includes factors that have a very significant criminological reference, such as gender or indigenous status, and while it does include important factors directly relevant to sentencing, such as whether the offender entered a plea of guilty or was on conditional liberty at the time of the offending. It does not include, however, important factors to allow for real consistency to be assessed, such as the value of property stolen, the nature of the premises targeted for a burglary or the length of time or distance a stolen car was driven.
Further, though the Database does show whether the offender has pleaded guilty and in which court, it does not show whether it is an early plea or, if the offender has a criminal record, it shows that, but not the seriousness of prior offending or the number of repetitions, of the offences for which the offender is to be sentenced.
Thus, while such statistics provide some information, it is the reasons why the sentencing have been fixed that is more important. See Hili v The Queen [2010] HCA 45; 242 CLR 520 at 537; [54]–[55]. This does not deny that such statistics can provide some important information, but with significant limitations.
While the Database can also be helpful in that it does, for the Supreme Court, provide a link to many of the sentencing remarks, which do give some further information on why a particular sentence has been imposed, there are many where clearly the remarks have been delivered and even published, but there is no link.
In this case, there is some information available for such guidance. Thus, in Elphick v The Queen [2021] ACTCA 35 at [17], the Court of Appeal cited without comment but with apparent approval, and in dismissing the prisoner's appeal, the following comment by the sentencing judge:
17. After acknowledging that sentencing statistics had limitations Her Honour, at [154], referred “for what they are worth” to the following statistics:
(a) the offence of aggravated burglary usually results in a sentence of between 18 months’ and three years and six months’ imprisonment;
(b) the offence of burglary usually results in a sentence of between 12 months’ and three years and six months’ imprisonment;
(c) the offence of taking a motor vehicle without consent usually results in a sentence of six to 12 months’ imprisonment;
(d) the offence of obtaining property by deception usually results in a sentence of six to 12 months’ imprisonment;
(e) the offence of theft usually results in a sentence of six to 18 months’ imprisonment;
(f) the offence of minor property damage is usually punished by sentence of six months’ imprisonment;
(g) the offence of minor theft usually results in a sentence of six months’ imprisonment; and
(h) the offence of drive while disqualified usually results in a sentence of six months’ imprisonment.
Such information does not, of course, provide any limits beyond which a proper sentence may not be imposed.
More helpful information, however, is from the actual sentencing remarks when the Court is sentencing the offender in comparable cases, so that the relevant factors and reasons can be seen and understood. Nevertheless, no sentence is a precedent: Quzag v The Queen (No 4) [2016] ACTCA 27 at [44].
The Crown provided reference to a number of recent decisions setting out the sentences imposed for offences of burglary and aggravated burglary and other offences. Although all the decisions have differences, the reasons do assist in assessing reasonable approached to such sentences. The sentences were R v Ogilvie [2015] ACTSC 296, R v Forrest (No 2) [2017] ACTSC 83, R v McCurley [2020] ACTSC 140, R v Crawford (No 1) [2020] ACTSC 245, R v Bessant [2020] ACTSC 365 and R v Foster [2021] ACTSC 229. Attention has been given to each of them and the need for consistency that such consideration will reflect in the sentence to be imposed on Mr Winters. Reference was also made to R v John (No 2) [2017] ACTSC 186, but many of the sentences there were for rolled-up pleas, which makes comparison difficult.
The assistance that these comparable sentences have provided to the difficult challenge of imposing a just and adequate sentence is significant and careful consideration has been given to the sentences imposed, the circumstances of the offending and the circumstances of the offender in each case.
Plea of guilty
It is important to take into account the pleas of guilty entered by Mr Winters to the offences. This is required by s 33(1)(j) of the Sentencing Act and may, as set out in s 35 of the same Act, result in the court imposing a lesser sentence as a result. There are various factors that must be taken into account when considering this.
In this case, the pleas were all entered in the Magistrates Court, that is at an early time. No pleas of not guilty were entered, so no prosecution Brief of Evidence was required to be prepared. Thus, the utilitarian value of the pleas was high. In most cases, the plea of guilty was indicated some time before the plea was actually entered. In some cases, the plea was entered on the day that the charge was preferred.
For the offence of dishonestly driving a motor vehicle without consent, the plea was indicated on the second mention and entered on the fourth mention. In the case of the offence of aggravated burglary at Weston, the plea was indicated at the first mention and entered on the third mention. In the case of the offence of aggravated burglary at Casey, a plea was indicated at the first mention and entered at the second mention. In the case of the theft from the Mazda Bravo motor vehicle there was no indication of a plea, but it was entered on the third mention.
For the offence of driving whilst disqualified as a repeat offender, the plea was indicated at the second mention and entered on the fifth mention. In the case of the offences of minor theft at Weston by joint commission and of damaging property by joint commission, the pleas were indicated on the first mention and entered on the third mention. In the case of the offence of trespass, the plea was not indicated, but entered on the second mention. In the case of the minor theft at Casey and the minor theft of registration plates, the pleas were entered on the first mention.
Nevertheless, the evidence for each offence was strong. There was CCTV footage and, of course, Mr Winters was located in the Honda Jazz motor vehicle.
The pleas of guilty are some evidence of remorse, especially as they were all entered at a relatively early time.
Thus, not only should they be considered as part of the general consideration (s 33(1)(j) of the Sentencing Act), but they will generally result in the imposition of a lesser sentence (s 35(3) of the Sentencing Act). Such a reduction in the sentence, however, must not be significant if, based on established facts, the Crown case is “overwhelmingly strong” (s 35(4) of the Sentencing Act).
While, as noted above (at [142]), the case was a strong one, it does not seem to reach the high threshold of being overwhelmingly strong, though it may be said to be approaching that. Nevertheless, it will to some extent moderate the reduction that would otherwise be available to Mr Winters.
Consideration
Having set out the relevant nature and circumstances of the offending in this case and the personal circumstances of Mr Winters, it is now necessary to impose the appropriate sentence which must be just and adequate. That requires identification of the purposes for which the sentence is to be imposed. In this Territory, these are helpfully set out in s 7 of the Sentencing Act.
Thus, the seriousness of the offences requires that there is an important element of punishment in the sentence. This will also serve as denunciation of the offending conduct. These purposes will also reinforce the need for compliance with the standards of conduct required in the community, which the offending has breached. In this, it may also have the effect of deterring others in the community who may be minded to offend in the same way. There is, of course, some argument about the effectiveness of sentences in deterring people, but it is not necessary to address that debate here. See Lloyd v The Queen [2022] NSWCCA 18 at [40].
The sentence must, of course, make Mr Winters accountable for his actions. This will also address the need to deter him from repeating the offending. To some extent, this is problematic as he has previously committed these offences, save for the trespass offence, and has been sentenced for them, but has continued to offend and repeat them. This might require a different approach and rehabilitation, also a legislative purpose, may be a way in which a better outcome for him and the community can be achieved.
Indeed, if these purposes are achieved and effective then, as required, after all, the overarching purpose of the criminal law, that the community will be protected, will be achieved: Channon v The Queen (1978) 33 FLR 433 at 437; R v Davey (1980) 50 FLR 57 at 65.
It is also important to acknowledge the harm done to the victims of the offences. This is assisted by the Victim Impact Statement, though without it, the Court can still appreciate, but only in general terms, the harm that such offences cause victims. See R v Ridley [2014] ACTSC 382 at [43].
Mr Winters is, of course, jointly responsible for the offending, as all the offences were committed in company. Some were charged expressly as jointly committed offences. He is, of course, fully responsible for his own part in the offending, and he was, all of the evidence suggests, a willing participant engaging significantly in it all.
The consideration of the just and adequate sentence must take into account the nature and circumstances of the offences. These have been addressed above. While it was a relatively sustained period of criminality, it seems to have come to an end when police intercepted the Honda Jazz vehicle in Evatt, though the evidence does not clearly show that Mr Winters was intending to turn the events of the morning into a sustained rampage of criminality. His co-offender had departed, and it was now around 7:30 am when employees would have been coming to work.
It was, however, a course of conduct which is a relevant sentencing matter.
Further, the personal circumstances of Mr Winters must also be taken into account. The childhood disadvantage he suffered is very relevant, and reduces his moral culpability, and therefore the severity of the sentence to be imposed. His plea of guilty is some evidence of remorse and the insight that he has shown into his offending behaviour and a wish to address the causes of his offending behaviour is also evidence of that. His empathy with the victims of his offences is perhaps not as strong as to show significant remorse. The plea of guilty, of course, will be taken into account, as noted above (at [138]–[145]).
The mental health of Mr Winters is also relevant, which, however, he currently has it under control, and he suffers from no significant mental illness at the moment, though he still suffers from cPTSD.
The other matters set out above in the remarks must also be and will be taken into account. Nevertheless, having regard to all these matters and having considered all the alternatives, it is clear that no sentence other than a sentence of imprisonment is just and adequate: s 10 of the Sentencing Act.
There are, of course, ten offences for which Mr Winters has to be sentenced. These must be dealt with in accordance with sentencing principles. These have been helpfully set out in O'Brien v The Queen [2015] ACTCA 47 at [26]. Thus, a proper sentence must be fixed for each offence, though it must ensure that Mr Winters is not punished twice for the same criminality, especially where there are common elements.
This can also be dealt with by ensuring an appropriate level of concurrency or cumulation of sentences. It is important, in this case, for the aggravated burglary offences to have some common culpability with the theft and damaging property offences and this must be addressed.
Further, the fact that the offences form part of a course of conduct is also relevant and this is particularly relevant when considering the role in the aggravated burglary offences that the offence of dishonestly driving a motor vehicle without the owner's consent played.
The level of concurrency, however, must not give rise to a perception that an offender can commit additional offences with impunity and that an offender who commits one or two offences will be dealt with in the same way as one who commits six or seven offences.
The total length of the sentence must also be considered so that the important value of totality in sentencing is respected and that the total sentence is adequate and especially where each offence or offences are independent, not wholly concurrent, but is appropriate to reflect the total criminality of all the offences of no more than that and that this may require some adjustment to the level of concurrency, so as to avoid a sentence that is excessive.
It should leave open, also, the realistic prospect of Mr Winters being able to engage in the rehabilitation he seeks and to achieve his hopes and goals when he completes his sentence. This would be an appropriate basis for a level of concurrency, though not complete between various offences.
This may result in what some might see as a lenient sentence in the extent of the cumulation and concurrency, but it is important that the total sentence is proportionate to the total culpability of Mr Winters and that all of the other factors, such as his pleas of guilty, childhood disadvantage, remorse, mental health and desire for rehabilitation are given appropriate weight. A synthesis of all of these and the other relevant factors, as set out in these remarks, must result in a sentence that leaves Mr Winters with a hope for his future that he wishes to make for himself.
The pre-sentence custody of 151 days must also be taken into account, which will be done by backdating the commencement of the sentence in accordance with s 63 of the Sentencing Act.
Sentence
[His Honour then spoke directly to the offender]
Mr Winters, please stand.
1.You be convicted of the aggravated robbery at Weston and sentenced to 18 months imprisonment, to commence on 26 November 2021. Had you not pleaded guilty, you would have been sentenced to two years imprisonment.
2.You be convicted of minor theft by joint commission and sentenced to two months imprisonment. That will commence on 26 March 2023, to be wholly concurrent with the sentence for aggravated burglary. Had you not pleaded guilty, you would have been sentenced to ten weeks imprisonment.
3.You be convicted of damaging property and sentenced to six months imprisonment, to commence on 26 January 2023. That is to be cumulative as to two months on the sentence for minor theft by joint commission. Had you not pleaded guilty, you would have been sentenced to 8 months imprisonment.
4.You be convicted of aggravated burglary by joint commission at Casey and sentenced to 18 months imprisonment, to commence on 26 April 2023. That is to be cumulative as to 15 months on the sentence for damaging property. Had you not pleaded guilty, you would have been sentenced to two years imprisonment.
5.You be convicted of minor theft from Casey and sentenced to seven months imprisonment, to commence on 26 June 2024. That is to be cumulative as to three months on the sentence for aggravated burglary by joint commission. Had you not pleaded guilty, you would have been sentenced to nine months imprisonment.
6.You be convicted of dishonestly driving a motor vehicle without the owner's consent and sentenced to 10 months imprisonment, to commence on 26 August 2024. That is to be cumulative as to five months on the sentence for minor theft. Had you not pleaded guilty, you would have been sentenced to 13 months imprisonment.
7.You be convicted of theft by joint commission and sentenced to nine months imprisonment, to commence on 26 December 2024. That is to be cumulative as to three months on the offence of dishonestly driving a motor vehicle without the owner's consent. Had you not pleaded guilty, you would have been sentenced to 12 months imprisonment.
8.You be convicted of driving whilst disqualified as a repeat offender and sentenced to six months imprisonment, to commence on 26 May 2025. Had you not pleaded guilty, you would have been sentenced to eight months imprisonment.
9.You be convicted of the minor theft of the registration plates and sentenced to two months imprisonment, to commence on 26 September 2025. That sentence is wholly concurrent on the offence of driving whilst disqualified as a repeat offender. Had you not pleaded guilty, you would have been sentenced to six months imprisonment.
10.You be convicted of trespass and fined $500 with 12 months to pay.
You may be seated.
Drug and Alcohol Treatment Order application
Mr Winters has now been sentenced to 18 months imprisonment for the offence of aggravated burglary and a total of four years imprisonment for all the offences for which he was to be sentenced, plus a fine of $500.
He has now asked that the sentence be served by a Treatment Order. Given that he has strongly expressed his wish to address the main criminogenic risk he faces, namely his drug dependence, it is appropriate to consider this option first, and the way the sentence should be served. In order to do that, it is necessary to determine whether he is eligible and, if so, whether he is suitable for one to be made.
The eligibility criteria for the making of a Treatment Order are set out in ss 12A and 80S of the Sentencing Act. It is appropriate to consider those in s 12A first.
Mr Winters has pleaded guilty to the primary offence of aggravated burglary, which is an eligible offence. He has also pleaded guilty to nine other offences, eight of which are also eligible offences. As noted, he has been sentenced to terms of imprisonment for these. These terms, individually and in totality, are within the eligibility for a Treatment Order, namely the sentence for the primary offence is of at least one years imprisonment, and the total sentence is not more than four years imprisonment.
The one other offence, that of trespass, has been dealt with by a fine, which is, thus, not an eligible offence, but that sentence is not a sentencing order of the purposes of s 12A of the Sentencing Act and Mr Winters is not subject to any other such sentencing order.
The Suitability Assessments, which were not challenged, show that Mr Winters has a long history of alcohol and drug use and accepts that he has a dependency on methamphetamines and heroin. This is sufficient to show that dependence on the balance of probabilities.
Mr Winters has also indicated, without challenge, that he was influenced by his recent drug use when committing the offences and that that use substantially contributed to the offending.
Mr Winters has lived in Canberra all his life and has accommodation here, though his mother, with whom he is now close, lives in Victoria. The Court can be satisfied to the requisite degree that he will be resident in the Territory for the term of the sentence.
Mr Winters has also signed a form consenting to the making of a Treatment Order. In this form, he also asserts that he has had sufficient information to make an informed judgement as to whether to give that consent. He also confirms that he has had the opportunity to ask any questions about the Order and has had any questions answered. He appeared to understand the answers. This is also confirmed by the evidence in the Suitability Assessment, the preparation of which he engaged with satisfactorily.
Accordingly, subject to suitability, which is an eligibility criterion in itself, Mr Winters is eligible for a Treatment Order to be made.
The Suitability Assessments have been carefully, professionally and very comprehensively prepared, addressing thoughtfully the question of whether Mr Winters is suitable to be subject to a Treatment Order.
Both recommended that he is suitable, and neither counsel submitted to the contrary. Such recommendations must be and have been carefully considered in coming to a conclusion on this issue.
A Case Plan has also been prepared, which sets out a detailed and thorough regime of rehabilitation to address the various criminogenic risks that he has. This shows that there are appropriate arrangements available for the administration of a Treatment Order.
There are no reasons set out in the Suitability Assessments or in counsel’s submissions why the sentence should not be served by a Treatment Order. While the compliance by Mr Winters with previous community-based orders has been unsatisfactory, much of this has been because of continued drug and alcohol use, which the Treatment Order is designed to address.
There are no indications of unsuitability for a Treatment Order, as set out in Table 46K of the Sentencing Act, that would require or make it appropriate that a court decline to make a Treatment Order.
While the sentence of imprisonment must be wholly suspended for a Treatment Order, the sentence imposed on Mr Winters commences before today and so must be partially suspended. This, however, does not render the sentence one that makes Mr Winters ineligible for the sentence to be served by a Treatment Order for the reasons set out in R v Crawford (No 1) at [91]–[111].
Drug and Alcohol Treatment Order
[His Honours again spoke directly to the offender]
Mr Winters, please stand.
11.A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for you for two years from today, commencing on 26 April 2022 and ending on 25 April 2024 in respect of the primary offence of aggravated burglary, of which you have been convicted and for which you have been sentenced to 18 months imprisonment.
12.That Order is extended to the offences of minor theft by joint commission, damaging property, aggravated burglary by joint commission, minor theft, dishonestly driving a motor vehicle without consent, theft by joint commission, drive whilst disqualified as a repeat offender and minor theft, of which you have been convicted and for which you have been sentenced, and which are associated offences of the primary offence.
13.It is noted that convictions for the primary offence and the associated offences have been recorded and that sentences have been imposed for each of them. Those convictions and sentences are hereby incorporated into the Drug and Alcohol Treatment Order in the custodial part of the Order.
14.The custodial part of the Drug and Alcohol Treatment Order for the primary and associated offences is hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from 26 April 2022 until 25 November 2025.
15.Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT) you are 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 Drug and Alcohol Treatment Order, 26 April 2024, until the end of the total sentence, 25 November 2025, with a probation condition that you 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 you considers appropriate and obey all reasonable directions of the person supervising you, including as to urinalysis, counselling and treatment.
16.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 are hereby imposed;
b) You are to travel directly from this Court today to Canberra Recovery Services, Fyshwick, ACT, and admit yourself to the residential drug rehabilitation program at that facility by 1:00 pm today, 26 April 2022;
c) You are directed to complete the residential drug rehabilitation program at Canberra Recovery Services, not to leave the facility until you have 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 you leave or be discharged from the program before completing it, you are to report to ACT Corrective Services by 4:00 pm on the next business day, with a view to having your Drug and Alcohol Treatment Order reviewed;
e) You are to 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 you reside, with whom you associate and your attendance from time to time; and
f) You are to comply with any directions of the Court from time to time about attendance in person or by electronic means.
17.You are directed to appear by electronic means in Court on Friday 6 May 2022 at 12:30 pm.
18.You are directed to attend the Court Registry before you leave 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 for the period that this Order is in force.
Mr Winters, that is a lot of words. It is all about you and your offending, so you probably understand it and as you have been around the Courts for some time you probably understand what is going on, but I am obliged to explain the sentence to you in brief terms. I have said that this totally unacceptable and distressing criminality is really a blight on the community and is deserving of a serious sentence of four years imprisonment. You have served part of that already when on remand, but I do not require at the moment that you serve the rest of that sentence in custody, provided that you engage with the Treatment Order regime.
Now, that is a difficult regime. It does restrict your liberty. You have got to do things. You have got to attend counselling. You have got to stay at Canberra Recovery Services. You have got to attend for urinalysis and you have got to come to Court, or come into Court from Canberra Recovery Services by AVL. If you do not want that program, if you find it is too hard, the alternative, and it is the only alternative, is to go back to prison to serve out the balance of the sentence. The time in rehabilitation will be taken into account, but it does not apply one to one, so there might be still quite a lot of the sentence that you have to serve, even towards the end of the period.
What is really important, if you genuinely want to rehabilitate yourself, is to be honest. Be honest with those who are seeking to assist you, but also be honest with yourself. It is very easy to say “I'll just have a quick taste” or “I'll just nick off for a little while, and that doesn't really matter”. Be honest with yourself and say, “This does matter. I want to rehabilitate and my compliance is essential to that and to achieve that”.
It will be hard. It will not be easy. This is not an easy way out of spending time in prison. It will be hard and you will face challenges. Your mental health will not make it any easier, but you will have support for that also.
Every time you overcome one of those challenges, every time you confront a trigger and say “No, I'm not going back to where I was”, you will be stronger and we hope that at the end of this process you will be abstinent and you will be crime-free. That will be good for yourself, obviously, but it will also be good for the community on whom you prey. It will be good for the victims, particularly those who might be victims in the future who will be distressed, deprived, hurt and harmed by what you have done to them. You have got to start having an insight into that and appreciate that this is just not acceptable. At a simple level, you would not want it to happen to you and you do not want it to happen to other people. You need to work hard to show that you are accountable and that the victims’ harms are recognised.
One of the other really bad things is for you to leave the program. If you leave the program, it is likely that the Treatment Order will be cancelled and you will go back to prison. If you do leave the program, and sometimes things get really tough for you, come back to Court. Report to Corrective Services, they will bring you back to Court and you will probably go into custody for seven to 14 days, depending on the circumstances. You will certainly go into custody if you have committed any offences and if you have not reported to Corrective Services after leaving. Do not leave. I am not suggesting that leaving is okay, I am saying "do not leave” because you will put the Treatment Order and your treatment at risk, but if you do, do not run away.
Those matters are really important. You will have great support. If you are genuine in your wish for rehabilitation, you have come to the right place. There are very professional people who will be able to help you through the rough times and to help you move on, to gain control of your life and, at the end of the day, that will give you the possibility of living a fulfilled life. Obey what they say, learn what they can teach you, put into practice what they suggest. If there are problems, and there will be, you can talk to them about it. If there are other problems, you can raise them with me.
For the first few months you will see me regularly on Fridays and I will have a report on how you have gone, what has been good and what has been bad. I will congratulate you for what is good, I will sanction you for what is bad. Those sanctions can include points, which represent a day in custody in the AMC. I do not usually invoke that until you have earned seven points and then you go in, usually for seven days. Sometimes that is necessary to reset. Sometimes it is necessary because we are going to cancel the Order and put you back full time. Those are things that you must be aware of.
If you take this opportunity, and many have, and many have succeeded in going through this program, and similar programs throughout Australia, then you will be hopefully able to manage your dependency, which will never leave you. You will always be dependent on drugs, but you can manage it, not use and do other things. It will be easier and easier and easier and that will give you a life, an opportunity to be in a family, to get work and to contribute to the community.
Construction is so important in our community. It is where we live, where we work, what makes opportunities to go and experience other things, entertainments possible and, of course, it protects the community. You can contribute to that. That, at the end of the day, is the purpose of imposing sentences and of the criminal law. I hope this works, I really do hope this works. I wish you good luck. We have given you the opportunity. If you do not take it, you know what the consequences are.
If you do take it, you will find, like other people, that it is worthwhile and that you can move beyond this drug-addled crime-filled life. You can show to Elkaim J that he was too pessimistic when he said you should change your address to the AMC. We do not want you to be there any more than you do. You do not want to be there anymore than you have to be. You have spent 11 years of 28 in the AMC and that is getting close to half your life in custody. You do not want that.
Approach this conscientiously, be committed, work hard, look for the people who will help you, raise issues, do not let them fester. Do not just run away. Come back, deal with it, and hopefully you will graduate in two years. Be delighted that this opportunity has meant that you can actually contribute to the community and help protect it. Help those victims who have suffered understand that you have really done the right thing, ultimately, and despite being punished already, have been able to put all this behind you and not allow any other victims to suffer and be harmed as has happened in the past.
You may be seated.
| I certify that the preceding one hundred and ninety-six [196] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge Associate: Date: 27 January 2023 |
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