Smith v O'Dell

[2016] ACTSC 176

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Clissold
Citation:	[2023] ACTSC 250
Hearing Date:	11 July 2023
Decision Date:	11 September 2023
Before:	Baker J
Decision:	See [85]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary with intent to steal – theft – young offender – burglary of commercial premises -– supportive family and pro-
social supports – sustained employment – reasonable prospects of rehabilitation – diagnosis with a number of mental health issues – poor engagement with authors of Pre-Sentence report explained by mental health issues – offender demonstrated willingness to engage in counselling – s 10 threshold crossed –
Intensive Corrections Order appropriate
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT), s 42
Crimes (Sentencing) Act 2005 (ACT), ss 11(2), 11(5), 11(6), 33
Cases Cited:	DPP v Karazisis (2010) 31 VR 364; VSCA 350
Hogan v Hinch (2011) 243 CLR 506; HCA 4 Love v The Queen [2012] ACTCA 8
R v Alfred [2022] ACTSC 216
R v Elphick [2021] ACTSC 9 R v Hancock [2021] ACTSC 52
R v Pocock [2015] ACTSC 77
R v Ponfield (1999) 48 NSWLR 327; NSWCCA 435 R v Reid [2021] ACTSC 72
R v Verdins [2007] VSCA 62; 16 VR 269;
R v White[2014] ACTSC 158
Smith v O’Dell [2016] ACTSC 176
Wyper v The Queen [2017] ACTCA 59
Texts Cited	Explanatory Statement to the Crimes (Sentencing and
Restorative Justice) Amendment Bill 2015 (ACT)
Parties:	Director of Public Prosecutions (DPP) Harrison Clissold (Offender)
Representation:	Counsel
C Wanigaratne (DPP) J Maher (Offender)
Solicitors
ACT DPP Fortify Legal (Offender)
File Number:	SCC 329 of 2022
BAKER J:
Introduction
1․	The offender, Harrison Clissold, has been charged with the following two offences:

(a) Count 1 (CC 2022/9295) – aggravated burglary with intent to steal, contrary to

s 312 of the Criminal Code Act 2002 (ACT).

(b) Count 2 (CC2022/9601) – theft, contrary to s 308 of the Criminal Code.

2․	The maximum penalty for the offence of aggravated burglary with intent to steal is
20 years’ imprisonment, a fine of $320,000 (2,000 penalty units), or both. The maximum
penalty for theft, is 10 years’ imprisonment, a fine of $160,000 (1,000 penalty units), or
both.
3․	The offender entered a plea of guilty to each charge on 12 December 2022, whilst the
proceedings were in the Magistrates Court.

Background

The offences

4․	The factual background to the offending is set out in an Agreed Statement of Facts.
5․	In brief, the offending arises from events that occurred the morning of 19 January 2022,
during which the offender entered the Apple Store in the Canberra Centre with a co-
offender and stole a number of electronic devices.
6․	Shortly after 9:30pm on the evening of 18 January 2022, the offender and a co-offender
checked in to the Hotel Realm, in Barton. The offender provided the Hotel with his mobile
phone number and the car registration of a blue Holden Commodore which was
registered in the name of the offender’s father. Hotel staff incorrectly recorded the
offender’s name as Harrison Cliffold.
7․	At approximately 3:00am the following day, the blue Holden Commodore left the Hotel
Realm.
8․	At around 3:35am, the co-offender attended the Canberra Centre and used a claw
hammer to smash a hole through the entrance to the shopping centre. After a number of
attempts in different parts of the entrance window, the co-offender created a hole through
which he was able to stretch his arm and push a green exit button on the inside of the
centre, as a result of which the doors opened and allowed him entry.
9․	At approximately 4am, the co-offender smashed the glass entry panel of the Apple Store
in the Canberra Centre, with the same hammer. Once inside the store, the co-offender attempted to open another door in the rear stock area, which triggered an alarm. The co-
offender fled when this alarm was sounded. It is not alleged that the offender was present
during these events. Telephone records indicate that the offender made several
unanswered calls to the co-offender over the period from 3:50am to 4:10am.
10․	However, at approximately 4:30am on the same day, the co-offender returned to the
Apple Store with the offender. The offender was wearing black clothing and had his face
covered. The co-offender, using the claw hammer, hit the plasterboard next to the locked
door inside the rear stock area multiple times, causing a hole in the plasterboard. The
co-offender then put his arm through the hole and unlocked the door. This door led to
the storeroom of the Apple Store.
11․	The offender and the co-offender entered the Apple Store storeroom and filled bags with
the following electronic devices:

(a) 22 new Apple iPhone 13s contained in their original boxes and plastic

wrapping;

(b)	Nine ‘Airpods’ headphones in their original packaging;
(c)	Ten ‘Beats’ branded headphones;
(d)	Five Apple iPhone 13 display phones (not in their original packaging); and
(e)	Two Apple iPhone 12s phones (not in their original packaging).

12․	The offender carried two bags containing the stolen items out of the Apple Store and his
co-offender carried three. As they were leaving the Canberra Centre, the offender and
the co-offender were pursued by a security guard. Whilst running away from the security
guard, the co-offender dropped one of the bags containing several of the stolen Apple
products. These items spilled across the floor. The co-offender and the offender left the
store with the remaining four Apple Store bags.
13․	The Agreed Statement of Facts records that the total value of the stolen property was
$60,791. It is not clear whether this amount includes the items which spilled out of the
bag that was dropped by the co-offender (which were presumably recovered by the
Apple Store). It does not appear that any remaining stolen goods have been returned to
the Apple Store, nor that the offender has compensated the Apple Store, or the Canberra
Centre, for losses incurred.

Subjective circumstances

Sources

14․	The subjective circumstances of the offender are summarised in a Pre-Sentence Report
(PSR) dated 30 January 2023, a letter from the offender’s parents, a psychological report
authored by Mr Peter Watt dated 10 July 2023, and a letter from the offender’s General
Practitioner, Dr Ana Reodica. The Court also received a short letter of apology from the
offender and a letter from the offender’s employer.
15․	The authors of the PSR state that the offender engaged poorly with ACT Corrective
Services in preparing the report. In particular, the authors of the PSR state that whilst
the offender attended four out of five appointments required to assess him for the
purposes of the PSR, he was “obstructive with the process” and “defensive and vague”
when asked questions or providing answers. As a result, most of the information within
the PSR is the product of information received by ACT Corrections in the course of
conducting verification checks of the offender’s statements.

Personal background

16․	The offender turned 18 two weeks prior to the offending. He is now 19 years of age.
17․	The offender currently resides with his parents in the Australian Capital Territory. In his
interview with ACT Corrective Services, the offender described his childhood and family
relationship as “alright” and declined to discuss his childhood further. He said that he got
along well with his parents, that he has a “reasonable” relationship with his sister, and
that he has a close relationship with his grandfather, who also lives in the ACT.
18․	The offender’s mother advised the authors of the PSR that the offender had had a good
childhood, which included a three-year diplomatic posting to Germany. In their letter to
the Court, the offender’s parents confirm their continued support for the offender and
their willingness to ensure the offender is able to become a “contributing member of
society.”
19․	It appears that the offender completed year 10 of High School. However, he told authors
of the PSR that that he was “always getting in trouble… and school was not for him.” The
offender’s mother verified this, advising that the offender was first suspended from school
at the beginning of year 9. She said that the offender was in a gifted and talented program
for most of his education, however, he did not continue this program when his Attention
Deficit Hyperactivity Disorder (ADHD) became a problem and was causing him anxiety.

Employment

20․	The offender first commenced employment when he was 17 years old. The offender
currently works at GetScaffed Up, a scaffolding company, where he has been employed
since late last year or early this year. Mr McLennan, Director of GetScaffed Up, provided
a letter to the court which confirmed that the offender has been a reliant, trustworthy and
punctual employee. Mr McLennan reported that the offender is seeking to “concentrate
more on work, bettering his life and staying out of trouble”. The offender’s mother told
ACT Corrective Services that she was “proud of how he [the offender] had turned himself
around and is trying to find his way again”.
21․	In their letter to the Court, the offender’s parents confirm the offender’s commitment to
his employment, noting that the offender has recently completed a night course at the
Canberra Institute of Technology, successfully receiving a qualification to further his work
in the industry.

Mental health

22․	In their letter, the offender’s parents disclose that the offender was diagnosed with mental
health issues, specifically ADHD as a young teenager. They consider that this condition
has contributed to the offender’s ability to make sound decisions as well as to his
involvement in impulsive and risky behaviour. They state that they have worked closely
with the offender and medical professionals to manage these complex issues. They
state that over the last 18 months, after the offending had occurred, they have observed
a marked increase in the offender’s behaviour, resulting in significant and positive
changes in the offender’s life.
23․	In her letter to the Court, Dr Ana Reodica, a General Practitioner who has been engaging
with the offender for ten years, confirmed the offender has been also diagnosed with
Bipolar Disorder, in addition to depression, and that he had been prescribed several
medications each of which had a “variable effect” on his health. Dr Reodica considered
that, with support of his family, the offender would be able to achieve “better mental
health outcomes” in the future.
24․	In his report, Mr Watt, psychologist, noted that the offender had indicated he was
diagnosed with Bipolar Disorder at age 10, and subsequently, anxiety, depression and
ADHD when he was 12 or 13 years old. Mr Watt recorded that the offender had indicated
that he was prescribed various medications from when he was ten years old, including
anti-psychotics and Ritalin. The offender indicated that in more recent years, he had
been prescribed an anti-depressant and mood stabiliser, which he reported to be taking
up until six months prior to his assessment with Mr Watt.
25․	At the time of the assessment, Mr Watt diagnosed the offender as suffering from
adjustment disorder and alcohol use disorder (moderate). He was of the view the
offender would benefit from psychological treatment involving psychotherapy, in
particular cognitive behavioural therapy along with anger management and skills
training. Mr Watt advised that the offender should obtain a Mental Health Treatment Plan,
including offence specific counselling for a period of at least six to twelve months.
26․	Mr Watt considered that a period of full-time imprisonment would have a detrimental
effect on the offender’s mental health. In particular, he said that incarceration would
increase the severity of the offender’s mental health symptoms. Mr Watt further
cautioned that, as a young adult, the offender could be vulnerable to the “negative
influences of older more hardened inmates”.
27․	Mr Watt concluded that the offender’s prospects of rehabilitation are good if he is willing
to engage in treatment, take his medication and stop drinking alcohol for the treatment
period. Mr Watt considered that the suggested treatment plan should be for a minimum
of twelve months.
28․	In the sentencing proceedings before me, the offender confirmed, through his counsel,
his willingness to engage in mental health treatment.

Drug and alcohol use

29․	In his interview with the PSR authors, the offender denied any issues associated with
alcohol consumption and reported that he was not currently drinking (in compliance with
bail conditions). The offender reported that prior to the bail order being imposed he
consumed alcohol “here and there”.
30․	The offender reported to Mr Watt that he drank alcohol from the legal age and that the
last time he drank alcohol was at the time of the offending when he had consumed “quite
a bit” of alcohol. To both Mr Watt, and authors of the PSR, the offender denied using any
illicit substances.
31․	However, it was noted in the offender’s PSR that a letter from Canberra Health Services
dated 22 December 2022 stated the offender had been diagnosed with a substance use
disorder. As noted above, Mr Watt also diagnosed the offender as suffering from an
alcohol use disorder.

Criminal history

32․	Whilst the offender’s criminal history is less significant than his co-offender, his history
does contain a number of matters of a similar nature to the present, each of which were
dealt with by the Childrens Court.

Sentencing Considerations

Nature and circumstances of the offences (s 33(1)(a) Crimes (Sentencing) Act)

33․ Matters relevant to assessing the seriousness of offences of burglary include:

(a) whether the property on which the offender trespassed was residential, which would be more serious, although an underground car park in an apartment complex is perhaps not so serious, but not at the level of seriousness of, say, commercial premises;

(b) whether there was damage committed on entry or while the offender was in the premises, unless causing that damage is separately charged, and whether there was vandalism, scattering property of the premises around about and the like;

(c) whether the occupants of the premises were present or the burglary was committed

at a time when they were likely to be present;

(d) the motivation for the burglary;

(e) whether there was premeditation or planning or organisation, especially professional

organisation and execution;

(f) whether there are on the premises, or were likely to be there, elderly, sick or disabled

persons, which is especially aggravating if the offender knows this;

(g) whether the offence is committed in a series of repeat incursions into the same

premises; and

(h) the actual trauma suffered by the occupants.

See R v Hancock [2021] ACTSC 52 at [33]. See also R v Ponfield [1999] NSWCCA 435;

48 NSWLR 327 at [48], as applied in Smith v O’Dell [2016] ACTSC 176 at [34].

34․	In the present case, the premises targeted was a commercial shopfront. The offending
occurred at a time early in the morning, when it was unlikely occupants would be present
in a commercial premises.
35․	The offending involved damage to glass doors of the Canberra Centre and the Apple
Store. Although the offender was not present for his co-offender’s actions in damaging
the Canberra Centre, he was able to enter the Canberra Centre owing to that damage.
The offender was present whilst the co-offender damaged the Apple Store.
36․	It does not appear that the offending was motivated by a need to fuel a drug or alcohol
addiction. As submitted by the offender’s counsel, the motivation for the offending
remains “quite opaque”.
37․	The prosecutor submitted that there was a degree of forethought and planning. In this
respect, the prosecutor relied on the fact that the offender’s name at Hotel Realm had
been incorrectly recorded and submitted that this was consistent with “a little bit of
deception” and “planning”. The prosecutor also made reference to the fact that the
offender was wearing black clothing and his face was covered at the time of the
offending. The prosecutor acknowledged that there was no evidence as to what the
offender’s face was covered with.
38․	I do not consider that these matters demonstrate that the offending was planned. In
circumstances where the name recorded by hotel staff was very similar to the offender’s
actual name, where the offender gave the Hotel Realm his correct phone number, and
the registration plates of a car that was registered in his father’s name, I consider that a
transcription error is the more likely explanation for the error in recording his surname.
As there is no evidence about what the offender’s face was covered with, I do not
consider that the offender’s clothing is evidence of planning. However, I do take into
account that the offending was deliberate in that a particular store was targeted,
intentionally damaged and that a number of items of significant value were stolen.
39․	The offences followed a first attempt at entry, and in this sense could be described as a
“repeat incursion”, however, as the offender was not present when the first damage was
inflicted, I have not taken this matter into account in my assessment of the seriousness
of the offending.
40․	There were no vulnerable persons in the commercial premises at the time of the burglary,
and there is no suggestion that any person suffered any trauma as a result of the
offending.
41․	As to the theft, I note that the monetary value of the items stolen was $60,791. As noted
above, it is not clear whether this amount includes the items which spilled out of the bag
that was dropped by the co-offender (which were presumably recovered by the Apple
Store). There is no evidence that any of the goods were recovered, and there is no
suggestion that the offender has paid, or offered to repay, the Apple Store or the
Canberra Centre for the losses incurred.

Guilty Plea (s 33(1)(j) of the Crimes (Sentencing) Act)

42․	The offender entered pleas of guilty to both offences in the Magistrates Court. I will afford
the offender a 25% discount in respect of each offence owing to that plea.

Moral Culpability and Verdins considerations

43․	As outlined above, as a teenager, the offender was diagnosed with various mental health
conditions, including ADHD and adjustment disorder. The offender’s counsel did not
contend that these conditions reduced the offender’s moral culpability. He conceded that
the offender’s self-induced intoxication at the time of the offending “would obscure the
extent” to which the offender’s mental health played a role in the offending.
44․	Counsel for the offender accepted that the offender’s intoxication cannot be regarded as
mitigating circumstance. However, he submitted that intoxication is part of a broader
“factual matrix”, which, combined with the offender’s ADHD, lack of consequential
thinking and impulsivity, led to the offender being somewhat disinhibited and exercising
poor judgment.
45․	As the offender’s counsel properly conceded, the offender’s intoxication does not
mitigate the seriousness of the offending. I accept the concession that the offender’s
mental health does not reduce his moral culpability for the offending. However, the
offender’s mental health remains relevant to the sentencing process, in particular, in
considering the context of the offending, and in considering the kind of sentence that
should be imposed: R v Verdins Verdins [2007] VSCA 62; 16 VR 269 at 276 at [32].
46․	On the basis of the evidence of Mr Watt, I am satisfied that the offender’s mental health
conditions are such that a period of full-time imprisonment would weigh more heavily on
the offender than a person in normal health, and that there is a significant risk that a
period of full-time imprisonment would have a significant adverse effect on the offender’s
mental health.

Responsibility and Remorse (ss 33(1)(i) and 33(1)(w) of the Crimes (Sentencing) Act)

47․	The offender has expressed differing attitudes to the offending at different times and to
different people.
48․	The authors of the PSR reported that on a number of occasions the offender refused to
discuss the offending for which he is being sentenced. The offender claimed to have a
“vague memory” of the offending and suggested that he “may have” been intoxicated to
some degree at the time of offending.
49․	However, in his letter to the Court, the offender stated that he takes “full responsibility”
for his behaviour. He described what he did as being “dumb” and that he made “stupid
decisions” at the time. He said that he regretted his actions and advised that he is now
working with his doctor to improve his mental health. The offender similarly described
the offending to Mr Watt and told him that the offending “was a bit dumb” and that he
was “stupid” for doing what he did. He also told Mr Watt that “he had learnt a lesson from
being caught” and that “his parents were ‘not impressed’ with the charges.” The
offender’s parents confirmed that the offender has indicated his remorse and “admitted
his stupidity”.
50․	The prosecution characterised the offender’s recollection of offending as one in which
the offender sought to shift responsibility to his “inebriated” state rather than displaying
some degree of responsibility for his actions.
51․	In contrast, the offender’s counsel made the following submission:

…I can at least indicate from my dealings with [the offender] that the impression I’ve formed

is that he’s just a man of very few words. He is a man who appears to have some difficulty

expressing both how he feels but also just generally expressing himself in a social context.

52․	I accept this submission, particularly bearing in mind the mental health conditions to
which I have referred above. I also note that the offender has not attempted to shift
responsibility to his intoxicated state in his conversations with his parents, to Mr Watt or
to the Court.
53․	Accordingly, I consider that the offender’s expressions to the Court, to his parents and
to Mr Watt, more accurately reflect the offender’s attitude than his expressions to the
authors of the PSR. I am satisfied, in these circumstances, that the offender has
accepted responsibility for the offending and that he demonstrates remorse.

Risk of re-offending and prospects of rehabilitation

54․	Throughout the PSR process, the offender showed a degree of a lack of insight into his
behaviour and the impacts that such offending had on its victims and the community.
The authors of the PSR expressed concerned that the offender’s “negative response” to
the PSR process may be indicative of a risk of future non-compliance with a community-
based order. However, they also noted that should the offender engage positively with
ACT Corrective Services and any rehabilitative process, this may positively assist the
offender in identifying the effects of his offending.
55․	Although the offender did not demonstrate insight into his offending in his conversations
with the PSR authors, the offender has shown insight into his behaviour in his
conversations to his parents, Mr Watt and in his letter to the Court. As stated above, I
accept that the offender has difficulty expressing how he feels and expressing himself in
a social context. I am satisfied that these difficulties explain the negative responses that
he provided to ACT Corrective Services.
56․	As noted above, during sentence proceedings, the offender indicated through his
counsel that he was willing to see a psychologist. Both Dr Reodica and Mr Watt have
indicated a willingness to continue to treat the offender’s mental health conditions. I
consider that such treatment will greatly improve the offender’s prospects of rehabilitation
and will reduce also his risk of re-offending.
57․	I also take into account that the offender has a number of protective factors in his life,
including stable accommodation, a pro-social and supportive family and full-time
employment, and that he has been compliant with bail conditions, in particular, conditions
relating to the consumption of alcohol.
58․	In all of the circumstances, I am satisfied that the offender has reasonable prospects of
rehabilitation, and that, provided the offender engages in such rehabilitation, his risk of
re-offending will be low.
Parity
59․	The offender’s co-offender pleaded guilty to two sets of offences, which included one
charge of aggravated burglary and one charge of theft relating to the burglary of the
Apple Store with the offender. The co-offender was sentenced by Norrish AJ on 7 July
2022: R v Alfred [2022] ACTSC 216. For the offence of aggravated burglary relating to
the Appel Store, the offender was convicted and sentenced to imprisonment for one year
and seven months’ (reduced from two years’ imprisonment on account of his guilty plea),
which was suspended after six months’ imprisonment upon the co-offender entering into
a Good Behaviour Order (GBO) for a period of 18 months. For the offence of theft, the
co-offender was convicted and sentenced to 12 months’ imprisonment (reduced from 15
months’ imprisonment), to be suspended after 6 months upon the co-offender entering
into a GBO for a period of six months. These sentences were wholly concurrent. The co-
offender was also sentenced on that occasion for two counts of damage to property,
relating to his damage to the Canberra Centre and Apple Store, and for other unrelated
offending.
60․	It is necessary for the Court to take into account parity principles in determining the
sentence to be imposed. Such an analysis must take into account not only the similarities
in the offending, but also any relevant differences, both in the role played by the offenders
and in their subjective circumstances: Lowe v R [1984] HCA 46; 154 CLR 606 at 609.
61․	The prosecutor properly conceded that the offender’s role in the offending was less
serious than that of the co-offender but contended that there remained “some degree of
forethought and a bit of planning in relation to the matter.” The prosecutor also noted that
the co-offender had been sentenced to a period of full-time imprisonment.
62․	The offender’s counsel submitted that the offender’s involvement in the offending should
be characterised as that of a “follower” or “helper”. He noted that the offender was not
present for the co-offender’s first break in; the offender was not holding a weapon or
responsible for physical damage to the building; and there is no evidence the offender
“flaunted” the stolen goods, as the co-offender later did.

63․ The offender’s counsel acknowledged that the co-offender was younger than the

offender (the co-offender was 17 years old at the time of offending) and that the co-

offender had a background of significant disadvantage and complex trauma, which was

found to be a mitigating factor. However, the co-offender had a significant criminal history including having served a period of full-time detention previously. The sentence imposed

on the co-offender for the present offences included a period of full-time imprisonment,

which was served by the co-offender whilst on remand prior to his sentencing.

Current Sentencing Practice (s 33(za) of the Crimes (Sentencing) Act)

64․	In Love v the Queen [2012] ACTCA 8 at [13], Penfold J (with whom North and Burns JJ
agreed) observed that several comparative cases “indicated that sentences of around
18 months could be said to be within range for the ordinary course of domestic burglaries,
but that higher sentences would be justified in particular circumstances”.
65․	I do not consider that these general statements are applicable in determining the
sentence to be imposed in the present case. The present case has a number of features
which may distinguish it from cases within the ‘usual range’ considered in Elphick and
Love. In particular, the present offending was committed on commercial premises (not
residential premises) by a young person, who suffers from mental health issues.
66․	In these circumstances, I consider that it is more useful to consider the sentences
imposed in particular cases, so that those differences in the objective and subjective
cases may be properly taken into account in determining the appropriate sentence to be
imposed.
67․	In this respect, the offender’s counsel referred the Court to three comparative cases,
namely, R v Reid [2021] ACTSC 72, R v Pocock [2015] ACTSC 77 and R v White [2014]
ACTSC 158.
68․	The offender in R v Reid pleaded guilty to two counts of theft and burglary. The offending
occurred in a commercial premises and in the company of a co-offender, and the value
of goods stolen comprised $100,000. The offender had a history of alcohol and
substance abuse and a criminal record. The offender was sentenced to 2 years’
imprisonment for the thefts, and 6 months’ imprisonment for the burglary; a total
imprisonment period of 3 years and 9 months, which was ordered to be served by way
of an Intensive Corrections Order (ICO).
69․	The offender in R v Pocock was sentenced for four burglaries and two counts of theft.
The offender had stolen goods from a number of electronics stores, the combined value
of which was approximately $16,000. It was accepted the offending was motivated by a
need to fund the offender’s drug use. The offender had a significant history of drug and
alcohol use. The offender was sentenced to a Deferred Sentence Order which allowed
the offender to attend a program at Karralika. The offender successfully completed the
program and was subsequently sentenced to three years’ imprisonment, the whole of
which was suspended upon the offender entering into a two year GBO.
70․	R v White involved an offender pleading guilty to one count of burglary and one count of
theft. The offending involved smashing a glass door at a car yard and stealing electronic
items. The offender had a significant history of drug and alcohol use and extensive
criminal history, predominantly dishonest offences. That offender was sentenced to 15
months imprisonment for burglary and nine months’ imprisonment for theft. Those
sentences were wholly concurrent. The offender had already served nine months’
imprisonment by way of pre-sentence custody and the sentences which were imposed
for the burglary and theft were suspended from the date of sentence.

Submissions

71․	The offender’s counsel conceded that the s 10 threshold is crossed and that a term of
imprisonment is the only appropriate sentence. However, he submitted the offender’s
youth and positive indications of rehabilitation would support an imposition of a
suspended sentence or sentence served by way of ICO or a suspended sentence.
72․	I did not understand the prosecutor to oppose an order that the sentence be served by
way of an ICO. Rather, he submitted that “an ICO sentence would create an extra burden
or requirement on an offender to demonstrate they have actually – or actually are taking
steps to address their underlying issues”. The prosecutor submitted that if an ICO or a
suspended sentence was imposed, it would be appropriate to require the offender to
engage in programs and counselling relating alcohol issues and underlying mental health
issues.

Determination

73․	The offences are serious. As Burns J noted in R v White at [30], burglaries of commercial
premises:

… have a wide impact on the community, driving up the cost of goods, especially when, as

here, property is damaged in order to gain entry. It also risks the viability of the business. The cost is passed on to the community in the increased cost of goods and of insurance premiums.

74․	Taking into account the nature and circumstances of the offending, as described at [33]
– [41] above, I consider that the sentence to be imposed must reflect the need for general
deterrence, specific deterrence and denunciation: s 7 of the Sentencing Act.
75․	However, the law also requires me to take into account that the offender is young. He
was only just an adult at the time that these offences were committed, having turned 18
two weeks before the commission of the offences. The law recognises that rehabilitation
must carry significant weight in the sentencing of such an offender: DPP v Karazisis
[2010] VSCA 350; 31 VR 634 at [111]. Such rehabilitation, if it can be achieved, will be “the most durable guarantor of community protection”: Hogan v Hinch [2011] HCA 4; 243
CLR 506 at [32], per French CJ.

76․ As noted above, in the present case, assessment of the offender’s prospects of

rehabilitation has been complicated by his lack of engagement with ACT Corrective

Services. However, it is important to take into account the reasons for this lack of

engagement. As outlined above, I am satisfied that the offender’s lack of engagement

stems in a large part from his ADHD. In particular, I consider that the offender’s

reluctance to talk about his offending stems from his mental condition and does not

indicate an unwillingness to engage in rehabilitation generally.

77․ In the sentencing proceedings, the offender indicated his willingness to see a

psychologist. The offender has a supportive family and stable employment. A period of

full-time imprisonment would remove this young offender from these social supports, and

would jeopardise his ongoing rehabilitation.

78․	In all of the circumstances, I am satisfied that the offender has sufficient prospects of
rehabilitation to order that the offender’s custodial sentence be served by way of an ICO.
An ICO is “designed to be punitive whilst still allowing the courts to incorporate elements
of rehabilitation”: Wyper v The Queen [2017] ACTCA 59 at [128], citing the Explanatory
Statement to the Crimes (Sentencing and Restorative Justice) Amendment Bill 2015
(ACT).
79․	ACT Corrective Services have recommended that any ICO imposed contain a curfew
condition. I am satisfied that a curfew condition will ensure that the ICO best addresses
the need for the protection of the community, as well as general and specific deterrence
and denunciation. The offender has been assessed as suitable for a Community Service
work condition. Again, to ensure that the sentence meets the need for general and
specific deterrence and denunciation, I propose to order that the offender perform
20 hours of community service.
80․	I note that the offender’s counsel invited me to impose a suspended sentence rather than
an ICO. I do not consider that a suspended sentence would take proper account of the
seriousness of the offending, nor that it would adequately meet the need for general
deterrence, specific deterrence or denunciation.
81․	I have taken into account the sentence imposed on the co-offender when determining
both the term of the sentence and the form in which it is to be served. In particular, I have
taken into account that the co-offender was younger than the offender (the co-offender
was a juvenile at the time of the offending) and that his background was such as to
mitigate his moral culpability. I have also taken into account however, that the co- offender played a more significant role in the offending. Taking into account these
differences, the overall term that I will impose on the offender will be similar to the overall
term that was imposed on the co-offender for the present offences. Unlike the co-
offender, the offender will not be required to serve any period in full-time custody,
however, the offender will be subject to an ICO for a longer period than the period of full-
time custody that was served by the co-offender. As stated above, that ICO will include
a curfew condition, and a community service condition.
82․	In view of the overlap between the criminality involved in the offence of theft and of
burglary, I will impose concurrent sentences for both offences.

Orders

83․	For the above reasons, I will impose a sentence for the offence of aggravated burglary
of two years’ imprisonment, reduced to 18 months on account of the offender’s early
guilty plea. In respect of the offence of theft, I will impose a sentence of six months’
imprisonment, reduced to four and a half months, to be served concurrently with the
sentence for the aggravated burglary.
84․	I will order that both sentences be served by way of ICO pursuant to s 11(2) of the Crimes
(Sentencing) Act, with additional conditions to the core conditions set out in s 42 of the
Crimes (Sentence Administration) Act 2005 (ACT), including the imposition of a curfew,
requiring the offender to abstain from consumption of illicit substances and alcohol and
requiring the offender to engage in counselling sessions with a psychologist or
psychiatrist. I am satisfied that the offender’s parents, with whom the offender resides,
consent to the curfew: s 11(6) of the Crimes (Sentencing) Act.
85․	The orders of the Court are:

(1)	For the offence of aggravated burglary with intent to steal (CC 2022/9295) you are convicted. I sentence you to a term of imprisonment of 18 months, commencing on 11 September 2023 and expiring on 10 March 2025.
(2)	For the offence of theft (CC2022/9601) you are convicted. I sentence you to a term of imprisonment of 4 months and 14 days, commencing on 11 September 2023 and expiring on 24 January 2024.
(3)	I order that those sentences be served by way of Intensive Correction Order subject to the core conditions listed in s 42 of the Crimes (Sentence Administration) Act 2005 (ACT) and the following additional conditions under s 11(5)(e) of the Crimes (Sentencing) Act 2005 (ACT):

(a)	That you abstain from consuming any alcohol or illicit substances;
(b)	That you engage in counselling with a psychologist or psychiatrist as directed by ACT Corrective Services;
(c)	That you engage in drug and alcohol programs as directed by ACT Corrective Services;
(d)	That you reside at 1 Kettle Street Gungahlin ACT and that you be present at the place of residence from 7pm each day and remain there until 7am the following morning for such time as directed by ACT Corrective Services;
(e)	That the period of supervision be only for the period deemed necessary by ACT Corrective Services.

(4) The Intensive Correction Order in relation to the charge of aggravated burglary with intent to steal is subject to the further condition that you perform 20 hours of community service within the next 12 months.

I certify that the preceding eighty-five [85] numbered paragraphs are a true copy of the Reasons for Sentence of Her Honour Justice Baker.

Associate:

Date: 11 September 2023