The Queen v David Michael Evans
[2015] ACTSC 311
•16 October 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | The Queen v David Michael Evans |
Citation: | [2015] ACTSC 311 |
Hearing Date(s): | 14 October 2015 |
DecisionDate: | 16 October 2015 |
Before: | Robinson AJ |
Decision: | See [17] – [19] |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – particular offences – aggravated burglary – theft – plea of guilty |
Legislation Cited: | Criminal Code 2002 (ACT) ss 308, 312 |
Parties: | The Queen (Crown) David Michael Evans (Offender) |
Representation: | Counsel Mr D Swan (Crown) Mr D Johns (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number(s): | SCC 176 of 2015; SCC 177 of 2015 |
ROBINSON AJ:
Background
David Michael Evans, the offender, is now 29 years of age. He completed school to the level of year 9 at the age of 15. He started an apprenticeship as a painter. He did not complete it and has not held any full-time employment since that time. He has had two brief separate casual positions.
The offender began using illicit substances in his teens. He started with cannabis and moved onto methamphetamines. His position immediately prior to his current incarceration was that he would use “ice” every day. He told me in evidence that he spent between $700 and $1200 per day on the drugs. The offender identified, to the author of the Pre-Sentence Report, the challenges of maintaining this level of drug use and the increase in his criminal activity in order to support his addiction.
On 31 August 2015, Magistrate Campbell sentenced the offender for 28 offences. The dates of the offences ranged from 11 November 2014 to 8 February 2015. The vast majority of these offences were related directly or indirectly to the need for the ingestion of drugs. The Magistrate sentenced the offender to a total period of 29 months imprisonment with a non parole period expiring on 7 July 2016. That sentence commenced from 8 February 2015 owing to credit for pre sentence custody. The individual sentences contained substantial periods of concurrency.
Two matters were committed to the Supreme Court for sentence. These offences occurred on 31 December 2014 and hence in about the middle of the period of the commission of crimes dealt with by Magistrate Campbell.
Offences
Those two offences, to which the offender pleaded guilty, are-
(a)Aggravated burglary. (in contravention of s 312 of the Criminal Code).
(b)Theft. (in contravention of s 308 of the Criminal Code.)
Facts
It is convenient to recite the facts taken from the document agreed between the parties:
On Tuesday 30 December 2014 the offender entered the Avenue Apartments, located at 80 Northbourne Avenue, Braddon, ACT.
The offender approached the reception and checked into room ‘G8’. The offender produced his New South Wales driver’s licence (No: 16122467) as proof of identification, with a photocopied version retained by the Avenue Apartments.
At approximately 8:40AM on Wednesday 31 December 2014 the offender was captured on CCTV walking through the hallways of the apartment complex whilst in the company of another male, whose identity remains unknown.
At this time the offender and the unknown male entered room ‘G11’.
Whilst in that room the offender and the unknown male removed the following items:
Two large ‘LG’ brand flat screen television sets;
The contents of the stocked mini-bar located in the room;
Bedding from inside the room.
The total value of those items was $2,683.00
The offender and the unknown male wrapped the televisions and mini-bar fridge contents inside the bedding and then left the room and proceeded towards the nearby elevator.
CCTV footage captured the accused and the unknown male enter the elevator and proceed to the basement of the Avenue Apartment building where they then exited the building.
Police subsequently attended and retrieved CCTV footage capturing the movements of the offender and the unknown male. Police were able to positively identify the offender from the CCTV based on previous dealings.
Shoes worn by the offender at the time of his arrest were consistent with shoes worn by the offender in the CCTV captured at the time of the subject offences.
A statement provided by the employee who had interacted with the offender on 30 December 2014, when he checked into the hotel, identified him as the man captured in the CCTV entering and removing items from room ‘G11’.
Objective Seriousness
The maximum penalty for aggravated burglary is 20 years imprisonment and for theft is 10 years. The offences are in the lower range. There was no suggestion of violence and the two actors entered an unoccupied room. The amount stolen was not great. The crime was amateurish given the offender checked in under his real name and supplied a driver’s licence and CCTV captured the incident.
Criminal Record
The offender has a very long criminal history. He can obtain no leniency at all from it.
Subjective Matters
I invited counsel for the offender to call the offender to give evidence before me. Counsel had put propositions to me from the bar table which appeared irreconcilable with the written material from ACT Corrective Services and CADAS concerning the level of co-operation of the offender with persons who sought to assist him.
The offender gave evidence and told me that there was a reason for his past apparent non co-operation. The fact that he has now received a sentence from Magistrate Campbell has assisted him. He explained that as a non-sentenced prisoner he is at a disadvantage. Now he is allowed to access programs which he proposes to take up. There is some recently occurring evidence of the offender seeking to take up such programs.
He is also now on daily methadone which has had the result that his craving for methamphetamines has gone. He has had some relapses whilst in AMC. Methamphetamines and pain killers are available in AMC. The offender told me the methadone was a tremendous help in this respect.
The offender expressed the view that he wishes to eschew his current lifestyle in favour of a family life. He referred to his partner visiting him every day in prison. A letter from Ms Erica Thompson dated 14 October 2015 was tendered on sentence which gave further detail to the offender’s previous life style but more relevantly expressed great support for him. He will need it. The offender said that he will seek to move to Perth or Darwin because “we don’t know anyone over there. We just want to start our life”
I formed the very tentative (perhaps naive) view, on his evidence, that there may be substance in the offender’s resolve to do better for himself this time. Rehabilitation is not yet a foregone prospect.
Disposition
The two offences I will treat as, in substance, one transaction.
I find that only sentences of imprisonment are appropriate to the offending.
I propose to approach the matter in much the same way as the Magistrate and treat the offending as being part of the conduct engaged in from the period 11 November 2014 to 8 February 2015 and allow a substantial degree of practical concurrency.
Order
For the offence of aggravated burglary, you are convicted and I sentence you to 12 months imprisonment. I reduce that sentence to 10 months on account of your plea of guilty. It has some utility even if belatedly entered. That sentence is to commence on 8 November 2016. The sentence will expire on 7 September 2017
For the offence of theft, you are convicted and I sentence you to 4 months imprisonment. I will reduce that to 3 months on account of your plea of guilty. That sentence is to commence on 8 November 2016.
I set a new non parole period expiring on 7 September 2016 before which you cannot be released.
| I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Robinson. Associate: D.Hoitink Date: 16 October 2015 |
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