R v YT and RA
[2014] ACTSC 191
•23 May 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v YT and RA |
Citation: | [2014] ACTSC 191 |
Hearing Date: | 23 May 2014 |
DecisionDate: | 23 May 2014 |
Before: | Penfold J |
Decision: | See [66] to [70] (YT) See [73] to [78] (RA) |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentencing of two offenders for multiple dishonesty offences – all offences in breach of earlier good behaviour orders made in connection with suspended prison sentences – Victim Impact Statements – significant prior criminal records involving juvenile offending – disadvantaged backgrounds – substance abuse – whether mental health concerns meant that prison would weigh more heavily on offender – effect of substantial periods in juvenile detention – parity, including with other co-offenders – pleas of guilty – sentences of imprisonment. |
Legislation Cited: | Crimes Act 1900 (ACT), s 334 Crimes (Sentence Administration) Act 2005 (ACT), ss 108, 110, 320H Criminal Code 2002 (ACT), ss 308, 311, 312, 318, 334 |
Cases Cited: | R v Verdins (2007) 16 VR 269 |
Parties: | The Queen (Crown) YT (Offender) RA (Offender) |
Representation: | Counsel Ms A Jamieson-Williams (Crown) Mr R Davies (YT) Mr C Lynch (RA) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (YT) Craig Lynch & Associates (RA) | |
File Numbers: | SCC 128 of 2013; SCC 129 of 2013; SCC 187 of 2013 |
Publication Restriction: | Offenders’ and co-offenders’ names |
Introduction
YT has pleaded guilty to one count each of theft, take motor vehicle without consent and burglary.
RA has pleaded guilty to ride or drive motor vehicle without consent, and to offences charged as aid and abet burglary and aid and abet theft.
YT and RA committed those offences in the course of the same incident which also involved RA’s older brother, EA.
As well, RA has pleaded guilty to one count each of aggravated burglary and theft committed with AT, whom I sentenced for his part in the incident on 22 April this year.
The offences arise as follows:
(a)burglary is created by s 311 of the Criminal Code 2002 (ACT), and it carries a maximum penalty including imprisonment for 14 years;
(b)aggravated burglary is created under s 312 of the Criminal Code, with a maximum penalty including 20 years imprisonment;
(c)theft arises under s 308 of the Criminal Code, with a maximum penalty including 10 years imprisonment; and
(d)take or ride or drive a motor vehicle without consent is an offence under s 318 of the Criminal Code, and it carries a maximum penalty of five years imprisonment.
RA’s offences were committed in breach of good behaviour orders made when I sentenced him in 2012. YT’s offences were committed in breach of a good behaviour order made in the Magistrates Court in April 2013.
The first group of charges arose out of a burglary in Farrer, committed by YT with help from RA and his older brother EA, during the day on 16 May 2013 (I shall refer to these as the May offences). The other offences were committed by RA, with AT, on 8 October 2013 (the October offences).
The May offences were detected because police had YT under surveillance. They observed him meet RA and travel to various locations in RA’s mother’s car, in the course of which they picked up EA. Eventually RA and YT stopped in Farrer. After knocking on one door and discovering a person at home there, they moved further down the same street and YT broke into a house while RA waited outside. Property worth roughly $1,800 was stolen, including the key to a car parked at the house. YT and RA drove away in that car, while EA left in his mother’s car.
The October offences committed by RA and AT involved the daytime burglary of an occupied house in Stirling. Three juveniles had come with RA and AT when they drove to the house, and they waited in the car while the burglary was committed. The occupant of the house was disturbed by tapping at the window and ran next door, from where she and her neighbour watched RA and AT walk out of her house with a small safe which was then thrown into the bushes.
10. RA and YT were arrested on the day of the May offences and brought before the Magistrates Court on the following day. Bail was refused. There were some negotiations, and changes to the charges. On 22 August 2013 both YT and RA pleaded guilty to the charges then current. Given the revision of the charges and the fact that the guilty pleas came before the offenders were committed to the Supreme Court, I shall accept these as relatively early guilty pleas.
11. YT has been in custody since 16 May 2013.
RA was released on bail on 26 August 2013, but arrested again after the October offences, and has been in custody ever since; my understanding is that the agreed backdating date for RA is 26 June 2013.
13. In 2012 I had sentenced RA for his role in an aggravated robbery, committed late one night at a service station, and involving three other juvenile offenders, two guns, and another weapon that might have been a meat cleaver. I also sentenced him for several other burglaries, thefts and motor vehicle theft. A total sentence of three years and three months was suspended after 18 months, on 12 February 2013. At that point only four of the sentences remained to be served, being for two aggravated burglaries, one associated theft, and the aggravated robbery. Those sentences, once suspended, were all subject to two-year good behaviour orders, which were breached by the offences for which I am currently sentencing RA.
YT was sentenced by Magistrate Mossop on 11 April 2013 for an offence of trespass committed on 19 March 2013. A three-month good behaviour order was made. A separate sentence of four months imprisonment imposed in the Childrens [sic] Court was suspended subject to a 12-month good behaviour order. Both good behaviour orders were breached by YT’s 16 May offences, but the breach of the good behaviour order imposed in the Childrens Court will, under s 320H of the Crimes (Sentence Administration) Act 2005 (ACT), need to be dealt with by that court. However, counsel for YT concedes that the currency of both these good behaviour orders was an aggravating feature of YT’s offending.
The objective seriousness of the offences
15. The May offences were relative routine, daytime, domestic burglary and theft offences, premeditated to the extent that there had been a decision to commit a burglary and the only matter left to be decided was which particular house to burgle. I accept that domestic burglaries are generally seen as more serious than burglaries of commercial premises. The burglary was aggravated by the damage done to the house in order to gain entry, but I note that there was no damage done to the house or its contents otherwise, or to the car that was taken.
16. The October aggravated burglary was clearly premeditated, and was not deterred by the presence of the occupier. The statutory aggravation was that the burglary was committed in company, but the offences were also aggravated by the police pursuit undertaken in order to apprehend the offenders, and by the fact that RA and AT had taken three juveniles along for the ride.
17. All the offences were aggravated by the fact that the offenders were on conditional liberty, that is, subject to suspended sentences with good behaviour orders, when the offences were committed. RA was also on bail in connection with the May offences when the October offences were committed. The Statement of Facts for the October offences refers to the offenders discussing the possibility of stealing guns, but there is no evidence they had any reason to believe that the house they burgled might have contained guns.
18. Most of the stolen property was recovered.
Victim Impact Statements
19. Victim Impact Statements were provided in relation to each of the burglaries.
20. In relation to the May offences, both occupants of the burgled house gave Victim Impact Statements. [The female occupant] said:
I had always felt that with double keyed deadbolts and keyed window locks our house was secure. Since the break in, I now know that anyone determined enough can break into my home. Whenever we leave the house, even if it is only for several hours, I try to hide all spare keys or bring them with me just in cast. Leaving is now a prolonged process as every lock is checked and all spare keys picked up. I am also apprehensive when we return home, worried about what we might find.
I found out about the break in when I was in Sydney and a very worried daughter called me - the police had contacted her because they didn’t have our mobile numbers. It upset me that the break in had caused her such stress. I became very stressed, as I felt under extreme pressure - my husband was about to undergo surgery for prostate cancer and I was unable to return home to sort everything out. It took many phone calls and a lot of time before I could be sure that our house was able to be locked up until we could return home.
Most of the stolen items were recovered, but all the keys on the set with the car key were never recovered, along with the automatic garage door opener. I felt totally insecure until all the locks had been rekeyed and the garage door opened and reprogrammed. I was also upset that a watch my husband received as an award from work was not recovered.
Since the break in we have replaced all other external wooden doors with sturdy solid wood doors and security screens, costing us $3,635 on top of the $500 excess we had to pay for the repairs covered by our insurance, meaning the break in left us $4,135 out of pocket.
21. Her husband said, in his Victim Impact Statement:
The robbery happened while I was in a Sydney hospital having tests in preparation for a 4 hour operation the next day for aggressive prostate cancer. This meant that we were unable to return to our home until 8 days after the robbery. For this period I was left worried about the state of our home and car. I also felt responsible for the robbery happening at all.
The watch that went missing was an award from the company for which I worked for 30+ years prior to my retirement.
We are both very careful now to ensure the house is carefully locked up even though we have replaced all locks and the hollow wooden doors are now solid cedar ones. When we return home it is with the thought that determined criminals can enter our home even though we have taken all necessary steps to make it difficult for them.
22. The victim of the October offences said:
Ever since [the incident] on our premises, I feel very apprehensive when I come home from work if nobody is there and I won’t even shower if nobody is in the house anymore. If my partner goes away for the weekend I won’t stay by myself or even if he isn’t home when I get home I will go into my neighbours until he gets home. Anyway to put all my fears in one bag, I feel very apprehensive when I have never felt like this in my life.”
23. It is apparent that all three victims have been seriously affected by the burglaries and will bear the emotional scars for some time.
Subjective circumstances
24. I turn now to the circumstances of the two offenders.
25. As already indicated, both men have significant prior records. YT, who is now 19, has been offending since he was 14. He has been dealt with for over 30 thefts and over 30 burglaries (although I should note that about two-thirds of those burglary and theft charges were dismissed in the Childrens Court under s 334 of the Crimes Act which relates to mentally impaired offenders). There are also on his record several drug possession offences and car theft offences, as well as two aggravated robberies, one assault and two charges of possessing a knife without reasonable excuse. Counsel pointed out, however, that the current offences were YT’s first as an adult and that his remand to an adult prison had shocked him.
26. When I sentenced RA in 2012, I described his criminal record as follows:
[RA], who is not quite 18, has a criminal record covering the last five years that would be unfortunate even in a much older man. Apart from a few driving offences, the record shows several car theft offences, several other dishonesty offences including burglaries, aggravated burglaries and thefts and some even more worrying offences such as assault, possession of a knife and failing to stop in a police pursuit. He has been under juvenile justice supervision in either the ACT or New South Wales for most of the last five years, and between September 2010 and November last year, when he was remanded in custody on the robbery charges, had spent several months in custody in New South Wales and the ACT. The aggravated robbery offence was committed only a couple of weeks after [RA] was bailed by the Youth Drug and Alcohol Court, which was at that stage dealing with the other offences for which he is to be sentenced.
27. That list did not include the four aggravated burglaries, three burglaries, six thefts, one aggravated robbery and one car theft offence for which I sentenced RA in 2012.
28. YT had a troubled childhood. His parents’ relationship, which according to his mother involved domestic violence, broke up when YT was three or four years old. He maintains a good relationship with his mother and younger sister, and lives with them when not in custody. It seems that he will be able to live with his mother when he is released from prison.
29. YT has been using drugs and alcohol since he was 13, about the same time as he left school. He began with cannabis and moved on to methamphetamine at age 15, via ecstasy which he apparently came across while in juvenile detention. He has never had a job, and efforts to find a job have been unsuccessful, perhaps partly because of his mental health problems and what is described in Dr Sullivan’s report as “slow cognitive processing”. Dr Sullivan noted that an examination of YT’s medical records shows that he has been diagnosed with schizophrenia, Pervasive Developmental Disorder, Autism Spectrum Disorder and a mild intellectual disability, as well as Attention Deficit Hyperactivity Disorder. Dr Sullivan also noted a severe substance abuse disorder. There have been psychotic episodes, including in custody, in 2010 and 2012 and YT has been subject to a Psychiatric Treatment Order, apparently for at least 12 months.
30. There was evidence before me indicating that YT’s mental health and development had been concerning his mother and the doctors from when he was a baby – whatever negative effects may be related to illicit drug use, it cannot be said that YT’s difficulties have been entirely caused by such illicit drug use.
31. YT has made several attempts at drug rehabilitation, but has so far not managed to remain in residential rehabilitation for more than a few weeks at a time. In custody he has been receiving alcohol and drug counselling. The Pre-Sentence Report author also gave evidence of a variety of drug rehabilitation programs and counselling that would be available to YT in custody, subject to his suitability having regard to his mental health and behavioural issues.
32. Dr Sullivan noted the effects of YT’s range of problems. He said:
[YT]’s complex presentation involved a range of diagnoses; it is difficult to apportion responsibility for impairment of functioning to a specific diagnosis. However his current offending appears associated with markedly impaired judgement and a reduced capacity to think clearly or make calm and rational choices. Overall this likely reflects his premorbidly low intellectual functioning and the further effects of psychotic illness, intoxication or craving, and autism spectrum disorder on his capacity to think consequentially.
33. Dr Sullivan concluded:
[YT] has a range of complicated mental health and substance use problems. He will require a multi-agency package of care in the community. He has had poor results from previous interventions. At the least, he will require accommodation, antipsychotic medication provided involuntarily as a depot injection, and support services. Substance use may not only derail plans, but given his risky injecting behaviour, he is at increased risk of overdose or adverse medical conditions arising. In the absence of markedly coercive interventions, his prognosis will likely be poor.
34. Dr Sullivan repeated in oral evidence that in the community YT would need support from many different agencies and the task would be quite complicated.
35. YT gave the following explanation for his offending to the Pre-Sentence Report author:
At the time ... he had been using methamphetamine for “a couple of days.” He suggested that he and his co-offenders had talked about making some money in order to purchase more of the drug. Although the idea of a break and enter had been discussed, [YT] stated he was initially reluctant however, he eventually agreed to participate.
Indicating he was “pretty scattered” at the time, [YT] suggests that he was not thinking properly. He added he “should have gone home and got some sleep”. Although he said he was aware of what would happen if he got caught, [YT] indicated he was not thinking about this. He reflected a frustration with his life not working out and decided “fuck everything”.
36. I note that, if YT was addicted to methamphetamines, he had developed this addiction at a young age and this may accordingly reduce his culpability for an offence committed under the influence of methamphetamines and intended to enable the procurement of more of the drug.
37. YT told the Pre-Sentence Report author that “people don’t deserve to get their stuff stolen”, but did not articulate any more substantial expression of remorse. I note, however, that given YT’s intellectual challenges, it may be unfair to expect him to take a particularly sophisticated approach to his offending or indeed to his expression of remorse.
38. YT has used, as I earlier noted, heroin and ecstasy occasionally, and cannabis and methamphetamines on a regular and problematic basis. He has made various short-lived and unsuccessful attempts at rehabilitation. He has recognised the impact of ongoing drug use on his risk of imprisonment, but it is not clear how he proposes to pursue rehabilitation. YT did attend alcohol and drug counselling at the AMC three times in January and February this year.
39. I note:
(a)the Pre-Sentence Report advice that YT was excluded from the methadone program at the AMC as a result of “diverting” a methadone dose (which I take to mean keeping it to give to someone else); but also
(b)the Pre-Sentence Report author’s oral evidence that since YT has no history of heroin use, it is unclear why he was on the methadone program anyway, and YT’s counsel’s submission that he might have been intimidated, presumably by another prisoner, into seeking to obtain and divert the drug.
40. Accordingly, I propose to disregard all the material about YT and the methadone program.
41. Dr Sullivan gave evidence that time in custody would be “mildly more burdensome” for YT than it would be for a person without his various mental health and intellectual disorders. He qualified this by explaining that the increased burden might result if YT was permitted to refuse his anti-psychotic or other medication but was then as a result housed in a part of the prison where his access to other activities and programs was more restricted. However, it seems that so far YT has been compliant with his treatment regime in the AMC, and I see no justification for sentencing on the basis that he could render any further incarceration more burdensome by ceasing to comply.
42. RA too has not had an easy youth. When I sentenced him in 2012 I said this:
[RA] was born in Canberra. His parents have since separated, and he has little contact with his father, but seems to have a good relationship with his stepfather. He has an older brother and two much younger siblings. He sees his brother as a role model and would like to retain a close relationship with him. [RA] also has a partner and a baby son born during his current time in custody.
43. Now that was in 2012; since then RA’s partner has also given birth to his twins.
[RA] had good experiences in primary school, but did not cope with high school. He appears to have attended only for a few months in Year 7 and 9 and not at all in Year 8. Some of his absences reflect time in custody, but others just involve truancy. [RA] attributes some of his troubles during this period to his brother’s move to Young to look after their sick grandmother. In his brother’s absence, [RA] began associating with the wrong crowd and began drug and alcohol use.
More generally, [RA]’s behaviour seems to reflect a lack of proper and in particular authoritative supervision. It seems that [RA]’s parents struggle with parenting in general, partly perhaps because of their own drug abuse, and around 2010 they moved away from Canberra, leaving [RA] to live with a family friend who, as it turned out, had two jobs and was simply not at home often enough to provide any useful supervision for [RA]. Whether he would have been able to exercise anything like parental authority in any case is a further question. In July 2011, only a few months before the robbery, Youth Justice staff noted that [RA] suffered a “general absence of authoritative supervision, with few requirements being made of him and no consequences for failing to comply with such expectations as were identified”.
44. A Pre-Sentence Report prepared in December 2013 in relation to the current offences summarised RA’s background as follows:
Service records and documents obtained from Community Youth Justice indicate that his familial environment is highly dysfunctional. All parental figures, including [RA]’s biological father and older brother are known to the criminal justice system. [RA] reported having witnessed domestic violence between his biological parents and stated he had been exposed to crime, drugs and various anti-social influences from an early age. Despite [RA]’s belief that he enjoys positive relationships with his family members, [Community Youth Justice] records indicate the absence of parental supervision and a lack of positive role models have been significant factors in his non-compliance with supervision and his ongoing recidivist behaviour.
45. RA has rarely been employed, and appears to have few financial resources, given that he has a substantial debt to Centrelink. He has no current diagnosis for any mental health problems, but has recently raised the possibility that he has an undiagnosed psychological condition that reduces his capacity to avoid offending.
46. RA’s counsel made submissions, on instructions, about the difficulties that RA had faced after being released from custody in February 2013. These included difficulties with accommodation, and the fact that, when RA found accommodation with his partner and child in a refuge house. the rent and the cost of transport to and from work absorbed most of his wages. As a result of this, he fairly quickly gave up his job, following which he resumed drinking, his behaviour deteriorated, and his partner moved back to her family in Young. Counsel made the point that RA’s initial supervision after release from an extended period in juvenile custody involved fortnightly contact with Corrective Services, which after only a month was reduced to monthly reporting.
47. Counsel also noted that RA’s extended periods in custody as a juvenile have left him ill-equipped to live independently in the community, and neither have they, apparently, assisted him the growing-up process.
48. After the May offences, RA was in custody for some months and was then bailed to Karralika, which he left after a month, apparently finding it difficult to engage in discussions about his offending with a group of mainly older people. He sought re-admission but had to wait a month. In the meantime, he spent about a week at a day program at Arcadia House, which ended with the commission of the October offences. As at December last year, RA had indicated that he was not interested in residential rehabilitation.
49. The Pre-Sentence Report author described RA’s attitude as follows:
[RA] did not dispute the statement of facts. Whilst he accepted he committed each of his offences knowing the illegality of these, he diminished his responsibility by claiming he may be suffering an undiagnosed psychological condition. In doing so, he was unable and/or unwilling to demonstrate a level of insight that may indicate a genuine desire to address his criminogenic risks and to reduce his risk of reoffending. Further, he was unable to recognise the impact of his offences on others that were involved in his crimes or affected by his actions.
50. RA has a history of cannabis, methamphetamine and ecstasy use, but has not claimed to have been affected by any illicit substances when the burglaries and thefts were committed. RA offered no explanation for the current offending except the hypothetical psychological condition to which I have already referred.
51. Counsel noted the contrast between RA’s report, that I have already described, of his post-release supervision in 2013 and the comments of Corrective Services, who said
Reports obtained from Community Youth Justice (CYJ) indicate [RA]’s compliance with his obligations and the Court’s conditions has been unsatisfactory in that he has failed to effectively address his risk factors and has continued to re-offend. [RA] is described by his CYJ Case Manager as having “consistently displayed an apparent disregard for his commitments” to both the NSW Department of Juvenile Justice and CYJ [in the ACT].
While subject to supervision from this Service, [RA]’s responsivity to supervision is also deemed to be unsatisfactory in that he has committed further offences resulting in him being remanded in custody on 22 May 2013.
52. One might think that Corrective Services were unduly optimistic in apparently expecting that an 18-year-old:
(a)who had spent 18 months in juvenile detention over the previous two years or so;
(b)who had been under some kind of youth justice supervision or custody for much of the previous five years; and
(c)who clearly had little or no useful family support but only family responsibilities;
would be able to “effectively address his risk factors”, with only the help of a fortnightly or monthly meeting with his supervisor.
53. The Pre-Sentence Report assessments of YT and RA, albeit provided by different Pre-Sentence Report authors, are instructive. YT was described as follows:
A young man, [YT] presents with a range of complex needs which render him vulnerable to marginalization. His lack of fit with the requirements of a mainstream community has resulted in barriers to accessing roles which contribute to a prosocial lifestyle.
54. The assessment of RA was:
[RA] is a young man who, despite being quite articulate, presents as an unapologetic and somewhat blase offender, which may be due to his long involvement in the criminal justice system. This presentation and his attitude towards his offences do not engender confidence in his ability to recognize the triggers and risks that lead to his offending behaviour.
Parity
55. The offences that I am dealing with involve two offenders other than those who are to be sentenced today. It is necessary for parity purposes to mention their sentences, and to make some other comparisons between the various offenders.
56. EA has recently been sentenced in the Magistrates Court for his part in the May offences; like his younger brother, RA, he was charged with aiding and abetting the burglary. He was sentenced to 10 months imprisonment to be suspended after five months subject to a two-year good behaviour order. EA seems to have had a less substantial criminal record than RA or YT, although given that it is set out in a New South Wales bail report it is hard to tell exactly how much less substantial. It does, however, appear not to show any offending since early 2011.
57. YT does not seem to have needed any particular encouragement to engage in criminal activity, so I refrain from any finding that RA was the instigator of the May offences, while noting that there is no principle to the effect that an aider and abettor is necessarily less culpable than the person who commits the primary offence.
58. Recently I sentenced AT, RA’s co-offender in the October offences, for the aggravated burglary committed with RA as well as for an earlier attempted aggravated burglary. AT’s prior record was very minor, but he was also on bail when the October offences were committed. His sentence was 15 months imprisonment as part of a total sentence of 18 months imprisonment, which was backdated to take account of four months in pre-sentence custody and suspended from the sentence date subject to an 18-month good behaviour order.
59. I am satisfied having regard to the material already referred to that RA, who is an intelligent young man with the capacity to be a leader, and who has significantly more experience of offending than AT, was at least as much the instigator of the October incident as AT.
Other matters
60. Counsel for YT submitted that I should take into account three of the matters identified in the Victorian Court of Appeal case of R v Verdins (2007) 16 VR 269 as relevant to sentencing offenders with impaired mental functioning, being the effect on the offender’s moral culpability, the significance of general deterrence, and the impact of incarceration. However, given YT’s concession that before committing the offences he knew what the consequences could be if he were caught it is hard to see that his moral culpability was significantly reduced or that he is an unsuitable vehicle for general deterrence. I have already indicated that I am unconvinced that incarceration need be significantly more burdensome for YT than for another young man with his criminal history, but without his mental impairments.
61. Counsel for RA submitted that RA’s month in Karralika should be accounted for in his sentencing. While it is to RA’s credit that he attempted residential rehabilitation, the fact that he only stayed a month and, more significantly, that he quickly returned to criminal activity after leaving, makes it hard to accept that episode as justifying any measurable kind of sentence reduction or backdating. Residential rehabilitation is valuable because it might actually produce rehabilitation – it is not of such value if offenders see it only as a slightly more tolerable way to serve a sentence than full-time custody.
62. However, I shall of course, take account of RA’s efforts in my overall determination of his sentences.
63. These are offences of a kind for which general deterrence is usually relevant, and certainly it is relevant here. I accept the prosecutor’s submission that it is also appropriate to recognise the harm done to the victims and the need to protect the community, and that specific deterrence is important for both RA and YT. On the other hand, I consider that it is far too early to give up on the prospects of rehabilitating these two young men.
64. As noted, there will be sentencing discounts reflecting the relatively early guilty pleas. The prosecutor pointed to the overwhelming Crown case in relation to the May offences, but even in such circumstances there is utilitarian value in a plea of guilty.
Sentencing
65. YT, RA, please stand.
66. YT, I record convictions on one charge each of burglary, theft, and take motor vehicle without consent, and I also note your conviction in April 2013 for trespass. I note that the three new offences breach the three-month good behaviour order made in the Magistrates Court in April 2013 in relation to that trespass, and under s 108 of the Crimes (Sentence Administration) Act I take no further action on that breach.
67. YT, I now sentence you to imprisonment as follows:
(a)for the burglary, to 15 months imprisonment reduced from 20 months for your guilty plea;
(b)for the theft, to 6 months reduced from 8 months, to run concurrently with the burglary sentence; and
(c)for the motor vehicle offence, to 8 months reduced from 10 months, and to be served so as to add 4 months to the 15-month sentence.
68. That gives a total sentence of 19 months.
The sentence will be backdated to 16 May 2013, when you were taken into custody, and so it will run until 15 December 2014. The theft sentence has therefore already been served.
70. The remaining two sentences will be suspended with immediate effect, leaving you with just over seven months to serve, and I now order you to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act for 18 months from today. The good behaviour order is subject to the conditions that:
(a)you accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General, or delegate (that will be your supervising officer); and
(b)that you undertake such counselling, courses, programs or treatments as directed by your supervising officer.
71. You will be give a written copy of the good behaviour order I have made, and that you will have to sign, and it will be explained to you by the court officials but, in short, it means that for the next 18 months, you need to keep out of trouble, keep in close contact with Corrective Services, and with your supervisor particularly, and do what your supervisor tells you that you need to do. If you commit another offence during that 18 months, you may find yourself back here before this court to be re-sentenced for these offences (the ones I’m dealing with today) and that could see you back in prison serving the remaining roughly seven months of your sentence. I should say to you, YT, that I’ve set a fairly long good behaviour period, even though there is only that seven months left of your actual sentence, because, as is clear, and as Dr Sullivan among other people have pointed out, you are going to need a lot of help from various different services, and for a long time, if you are to have a serious chance of making progress with your rehabilitation.
It would be useful for you, and I am sure Mr Davies will be in this, to have a proper chat with Mr Davies about the sentences that I’ve imposed and what they mean for you.
73. RA, I record convictions on one charge each of aggravated burglary, theft, aid and abet burglary, aid and abet theft, and ride or drive motor vehicle without consent. I also note your earlier convictions for two aggravated burglaries, one theft, and one aggravated robbery, and that the new offences breach the two-year good behaviour orders in relation to those earlier offences that were made in June 2012 and took effect in February 2013, when you were released last time. Under s 110 of the Crimes (Sentence Administration) Act, I cancel those earlier good behaviour orders and I will need to deal with the sentences for those four offences to which the good behaviour orders applied.
74. I now sentence you to imprisonment as follows.
First for the old offences, under s 110, the four outstanding suspended sentences are imposed, with the same concurrency and accumulation as originally set, and they will be backdated to take account of time already served before those sentences were suspended (so that was before you were released the first time) as well as time in custody since May last year. Using the backdating date of 26 June means that three of those sentences have now also been served and the fourth, the armed robbery sentence, will be completed on 25 March 2015.
76. For the new offences the sentences are as follows:
(a)for the May 2013 offences, 15 months imprisonment for aid and abet burglary and 6 months for aid and abet theft, reduced from 20 months and 8 months respectively for the guilty pleas. They will run concurrently with each other, and for the motor vehicle offence, 8 months reduced from 10 months and accumulated so as to add 4 months to the 15-month sentence;
(b)for the October 2013 offences, 16 months for the aggravated burglary and 6 months for the theft, reduced from 22 months and 8 months respectively and again to run concurrently with each other, so as to add 6 months to the May 2013 sentences.
77. As already mentioned, there will backdating of the old sentences to take account of time served and time in custody since last May. The agreed backdating date for that pre-sentence custody is 26 June 2013, so nearly 11 months ago now. The first 8 months of that period have been set against the old sentences, so the new sentences, which total 25 months imprisonment, started to run on 26 February this year and they will run until 25 March 2016.
78. I set a non-parole period for the new sentences of 13 months.
79. The effect of the backdating and the non-parole period is that you will be eligible for parole, at the earliest, in about 10 months, namely 25 March 2015. At that point, the last of the old sentences, that is the aggravated robbery sentence, will also be finished, and you will have parole supervision after that, on the new offences, for another year. Before you are eligible for parole, RA, you will have plenty of time to consider trying drug rehabilitation in the Solaris Therapeutic Community at the AMC, and if you do that you may even become eligible for whatever transitional release program is available by then, which might well be useful if it is available to you. Certainly you will have plenty of time to think about where your life is going from here and, I think you understand that is some thinking you need to do very seriously at this stage.
| I certify that the preceding seventy-nine [79] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Date: |
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