R v Winters

[2019] ACTSC 289

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Winters

Citation:

[2019] ACTSC 289

Hearing Date:

15 October 2019

DecisionDate:

15 October 2019

Before:

Elkaim J

Decision:

See paragraph [16]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Attempted aggravated burglary – Guilty plea

Legislation Cited:

Crimes (Sentence Administration) Act 2005 (ACT) ss 6, 7
Criminal Code 2002 (ACT) ss 44, 312, 318(1), 324(1), 326
Road Transport (Driver Licensing) Act 1999 (ACT) s 32(1)(a)

Parties:

The Queen (Crown)

Joshua Luke Winters (Offender)

Representation:

Counsel

P Dixon (Crown)

S McLaughlin (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Offender)

File Numbers:

SCC 135 of 2019; SCC 136 of 2019

ELKAIM J:

1. On 21 August 2019 the offender was arraigned on an Indictment dated 19 August 2019. He entered a plea of guilty to all four charges. The charges and their maximum penalties are:

(a) One charge of attempted aggravated burglary (CC2019/3224) contrary to s 312 of the Criminal Code 2002 (ACT) by virtue of s 44 of the Criminal Code. The maximum penalty is a fine of $320,000, 20 years imprisonment or both;

(b)  One charge of driving a motor vehicle without consent (CC2019/3223) contrary to s 318(1) of the Criminal Code. The maximum penalty is a fine of $80,000, 5 years imprisonment or both; and

(c)  Two charges of obtaining property by deception (SCCAN2019/3758; SCCAN2019/3747) contrary to s 326 of the Criminal Code. The maximum penalty is a fine of $160,000, 10 years imprisonment or both.

1. The offender also pleaded guilty to two transfer charges (CC2019/6070; CC2019/3222). The offence of unlawful possession of stolen property, contrary to s 324(1) of the Criminal Code 2002 (ACT), carries a maximum penalty of a fine of $8,000, 6 months imprisonment or both. The offence of driving while disqualified, contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT), carries a maximum penalty of a fine of $16,000, 1 year imprisonment or both. I note the automatic disqualification period that applies.

1. On 12 March 2019 the offender and another person drove a stolen Holden Commodore. This makes up the charge of driving a motor vehicle without consent.

1. At about 8:20 AM the offender drove the vehicle to an address in Gordon. He left the vehicle carrying a rifle or perhaps a replica rifle. He and the co-offender entered the premises through the garden where they encountered a young child. Upon seeing the child they left. The entry into the premises makes up the offence of attempted aggravated burglary.

1. Later on the same day the offender stole a credit card. He used it to buy two packets of cigarettes and 35.47 litres of petrol at a service station. Later he attended a Woolworths store and bought another two packets of cigarettes. Shortly afterwards he went to a different liquor store and bought a bottle of cognac. These purchases make up Count 3.

1. Also on the same day the offender used the credit card at yet another liquor store where he purchased a bottle of whiskey. This is Count 4.

1. The offender was born in 1993. He already has a significant criminal history. He 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. He could of course decide to take a different path in life but that is up to him. Hopefully Exhibit 1 indicates he has now chosen to improve his position.

1. The offender is one of six siblings. He had a difficult upbringing with exposure to drug use, family violence and other persons acting in a criminal manner. He appears to get on well with his stepfather as well his as his mother and siblings. The family however, almost as a group, is well known to the correction authorities.

1. The offender left school in Year 8. He has had assorted jobs but these have, not surprisingly, been interrupted by periods in prison, drug use and some mental health problems. The latter include depression and post-traumatic stress disorder. He is at least apparently attempting to deal with these problems through medication and counselling.

10.  I will note, in relation to the facts of the offences, that he and his co-offender, to their credit, immediately abandoned the burglary upon seeing the child.

11.  The pre-sentence report says the offender has a high risk of reoffending. This will no doubt depend on his attitude to his own rehabilitation. He is only 26 years of age and there is more than enough time for him to change the path of his life ahead.

12.  None of the offences stretch beyond medium objective seriousness. Had the burglary succeeded it might have been a more serious offence but it stopped with the attempt.

13.  The offences were committed while the offender was on conditional liberty. He is currently serving a sentence of 9 months for his breaches. The sentence is due to end on 14 December 2019.

14.  The pleas were entered following a criminal case conference. He is entitled to a discount of 20%. The defence asked for a reference for an Intensive Correction Order. This was opposed by the Crown because the offences demand full-time imprisonment. I agree.

15. I also take into account ss 6 and 7 of the Crimes (Sentence Administration) Act 2005 (ACT) which set out the principles and objects of sentencing.

16.  I make the following orders:

(a) For the offence of attempted aggravated burglary (CC2019/3224) the offender is sentenced to 12 months imprisonment (reduced from 15 months) to commence on 14 December 2019 and end on 13 December 2020.

(b) For the offence of drive motor vehicle without consent (CC2019/3223) the offender is sentenced to 3 months imprisonment to commence on 13 November 2020 and end on 12 February 2021.

(c) For the offence of obtaining property by deception (SCCAN2019/3758) the offender is sentenced to 3 months imprisonment to commence on 13 November 2020 and end on 12 February 2021.

(d) For the offence of obtaining property by deception (SCCAN2019/3747) the offender is sentenced to 3 months imprisonment to commence on 13 November 2020 and end on 12 February 2021.

(e) For the offence of unlawful possession of stolen property (CC2019/6070) the offender is sentenced to 1 months imprisonment to commence on 13 November 2020 and end on 12 December 2020.

(f)  For the offence of driving while disqualified (CC2019/3222) the offender is sentenced to 3 months imprisonment to commence on 13 November 2020 and end on 12 February 2021.

(g) The total period of imprisonment is 14 months commencing on 14 December 2019 and ending on 12 February 2021.

(h) I set a non-parole period of 15 months commencing ­­­15 March 2019 and ending on 15 June 2020.

I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Sentence of His Honour Justice Elkaim.

Associate:

Date: 15 October 2019