The Queen v Putra Hendra

[2014] ACTSC 102

THE QUEEN v PUTRA HENDRA
[2014] ACTSC 102 (23 April 2014)

CRIMINAL LAW – Judgment and Punishment – Sentencing – Theft

Crimes (Sentence Administration) Act2005 (ACT)

Criminal Code 2002 (ACT), s 308

Muldrock v The Queen (2011) 244 CLR 120
Weston (1980) 2 Cr App R (S) 391

EX TEMPORE JUDGMENT

No. SCC 191 of 2013

Judge:             Refshauge ACJ
Supreme Court of the ACT

Date:              23 April 2014

IN THE SUPREME COURT OF THE     )
  )          No. SCC 191 of 2013    
AUSTRALIAN CAPITAL TERRITORY           )          

THE QUEEN

v

PUTRA HENDRA

ORDER

Judge:  Refshauge ACJ
Date:  23 April 2014
Place:  Canberra

THE COURT ORDERS THAT:

1. Putra Hendra be convicted of the theft of property on 30 May 2014;

1. Putra Hendra be sentenced to eight months’ imprisonment;

1. Putra Hendra be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of twelve months, with the following conditions:

(a)         that he be under the supervision of the Director-General or her delegate for a period of twelve months, or such lesser period as the person delegated to supervise him deems appropriate, and that he obey all reasonable directions of that person, especially as to counselling or other treatment for gambling;

(b)         that he perform fifty hours of unpaid community service work within twelve months from 23 April 2014 and;

(c)         that he report to the officer of ACT Corrections at Eclipse House, London Circuit, Canberra City within forty-eight hours.

1. Putra Hendra has pleaded guilty to one charge of theft and appears before me for sentence. Theft is an offence against s 308 of the Criminal Code 2002 (ACT) and provides for a maximum penalty of 1,000 penalty units; that is, a fine of $110,000 or imprisonment for ten years, or both. It is, thus, to be regarded as a serious offence judging by the statutory maximum penalty: Muldrock v The Queen (2011) 244 CLR 120 at 133; [31].

1. Mr Hendra has pleaded guilty to stealing an eighteen carat gold ring with a one carat brilliant round cut diamond to the value of $12,500.  This is a very significant value and, of course, the value of the property stolen is always a very relevant matter in such offences.  See R v Weston (1980) 2 Cr App R (S) 391 at 392.

The offence

1. The circumstances of the offence are that he went into a jewellery shop in the Tuggeranong Hyperdome on 30 May 2012 and was shown the ring by a sales assistant employed by that firm.  He was looking at rings for about forty-five minutes before that ring was shown to him.  The shop assistant turned away to make a phone call about the price of the ring and Mr Hendra took the ring and left the shop. 

1. He left the Hyperdome and went to Sydney where, notwithstanding his belief that the ring was valued at $10,000, he sold it for $3,000 to an unknown person.  The ring has not been recovered.  Police were called and, after viewing security footage and some fingerprints that he had left in the store, Mr Hendra was identified as the thief and, subsequently, was arrested by police on 2 September 2013.  He made admissions to the police of taking the ring, having no permission to take it and selling it in Sydney.  He also made admissions to spending the proceeds on gambling.  He was granted bail and has not been in custody.

Subjective circumstances

1. He is now thirty, having been born in Indonesia, where his parents divorced while he was still an infant.  He then remained in Indonesia with his father until he met his mother when he was eighteen and decided to migrate to Australia to be with her.  He arrived when he was nineteen.  He has a good relationship with both his parents, though he has not disclosed the current offence to either of them. 

1. He seems to have somewhat uncertain accommodation.  He has been in shared accommodation through public housing and, prior to that, was staying with friends.  At the time of the offence Mr Hendra was homeless.

1. He completed the equivalent of Year 12 schooling in Indonesia but has not undertaken any further education or training.  He has had employment as a cleaner and a baker and has mostly been employed.  He is a pastry chef and was last working about two months ago.  He is currently unemployed and has some debts to pay.  He is waiting for these proceedings to be over before he makes attempts to gain further employment. 

1. He says that his financial difficulties arose through gambling on poker machines.  He told the author of the helpful Pre-Sentence Report that he gambled once a week on pay day.  He has, however, told the author of the Pre-Sentence Report that he no longer gambles. 

1. He pleaded guilty in the Magistrates Court and his early plea, together with his admissions to police, are to be taken into account.  He has expressed a desire to make reparation to the victim and appears to have taken responsibility for the offence.  The likelihood of him making any reasonable reparation in any reasonable period of time is fairly remote. 

1. He has been assessed as being at a low risk of re-offending but, obviously, his unemployment and potential gambling problems are very relevant to that risk.  If he gains employment and if, in fact, the position is that he has given up his gambling, then the likelihood of re-offending must be fairly remote. 

1. He has a short criminal history.  He has one entry on his record of possessing an offensive weapon with intent.  That appears to be a black-handled kitchen knife which, it appears from the limited information I have, he must have picked up while in an altercation at his work.  He was released immediately on a twelve month good behaviour order with no supervision condition and, accordingly, I take that into account as the appropriate assessment that the court then made of that offending. 

Consideration

1. I take into account Mr Hendra’s plea of guilty.  It was at an early stage and entitles him to a significant discount on the sentence.  I also accept that he was remorseful.  I take into account his relatively slight criminal history.  The offence is objectively serious and the owners of the ring will be significantly disadvantaged because the circumstances were apparently that it was not covered by insurance and, as I have indicated already, Mr Hendra is unlikely to be able to make any significant contribution to reparation.

1. I note that the offence was fundamentally opportunistic.  He was in the store for about forty-five minutes.  That may be because he was trying to seek some opportunity to run off with some jewellery, but I am prepared to accept that it was not planned in any significant sense and that it was probably a spur of the moment kind of offence because the shop assistant had her attention briefly taken from him.

1. There is no suggestion that he has any drug or alcohol problems and I note that the offence is now some two years old.  He has not come to the notice of the police, apparently, for any similar or, indeed, any offences other than the one that I have already referred to in that time.  Mr Hendra has been assessed as suitable for a community service work condition to a good behaviour order and I note that there is work available to him.  He has been assessed as suitable for periodic detention and has signed the relevant undertaking. 

1. Having regard to the seriousness of the offence, however, it seems to me that no penalty but a term of imprisonment is appropriate.  I do not consider, however, that it is necessary that the sentence be served by immediate full-time custody.

1. [His Honour then spoke directly to Mr Hendra]

1. Mr Hendra, please stand: 

1.       I convict you of the theft of property on 30 May 2012.

2.       I sentence you to eight months’ imprisonment.  Had you not pleaded guilty I would have sentenced you to ten months’ imprisonment.  I suspend that sentence immediately.

3.       I require you to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of twelve months, with the following conditions:

(a)       that you be under the supervision of the Director-General or her delegate for a period of twelve months, or such lesser period as the person delegated to supervise you deems appropriate, and that you obey all reasonable directions of that person, especially as to counselling or other treatment for gambling;

(b)      that you perform fifty hours of unpaid community service work within twelve months from today and;

(c)       that you report to the officer of ACT Corrections at Eclipse House, London Circuit, Canberra City within forty-eight hours.

1. Mr Hendra, that is a lot of words and a lot of legal words.  Your English probably does not allow you to understand exactly what I have said.  I am going to try and explain it a bit to you but Mr O’Brien will explain it further to you.

1. I have said that this is a very serious offence, and if you had not pleaded guilty I would have sentenced you to ten months’ imprisonment.  Because you admitted to the offence and said “I’ve done it”, I have reduced that to eight months, but I do not require you to go into prison.  I am not locking you up.  I am releasing you on what is called a suspended sentence.  So the sentence is there but it is not active unless you commit another offence.  If you do something more like this you will come back and see me and I will probably send you to prison.

1. If you do not obey the probation officer and what he or she tells you to do, you can come back here and I will have to deal with you.  I have put you under supervision, that is, you have to report to a probation officer.  Ms Bromwich might be the one that will do that, I do not know, and that person will have a talk with you every week, every fortnight and if it is all going well, we will say “no more” okay.  But she will also talk to you about gambling because she needs to be satisfied that you are not gambling anymore because that is the risk, that is when you get into trouble.

1. She or he can be very useful if things are not going well.  You can have discussion about what is going wrong and they can help you, perhaps help you to get a job and so on.  I have also said that you must do some unpaid work for the community.  So you have to go and do some jobs around the city and you will not get paid for it, because that is you paying back to the community for this theft, do you see?  There are fifty hours of that.  You should be able to do that in a short period of time but you have got to do it in twelve months.  If you do not do it in twelve months, you come back here and I will consider what to do then.

1. The third thing you have to do is you have to go over to Corrections, which is probably where you saw Ms Bromwich for the Pre-Sentence Report, over in a big building on the other side of Civic, Eclipse House, and you tell them there that you have been required by the court to come and report and they will explain the situation to you. 

1. This was a very naughty thing to do and very silly.  It could land you in big trouble and if you do not do the things that I have said you can do, you can still be in trouble.  But if your gambling is under control then you just need to get a job and get on with your life because your parents can be proud of you if you do that, but they will be ashamed if you do not.  They will be ashamed when you tell them, and you will have to tell them at some time about this, but you can say that the Court accepted that it was not so serious that you had to go to jail, but next time it will be.

   I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

   Associate:

   Date: 3 June 2014

Counsel for the Crown:  Mr M Reardon
Solicitor for the Crown:  ACT Director of Public Prosecution
Counsel for the defendant:  Mr M O’Brien
Solicitor for the defendant:  Legal Aid (ACT)
Date of hearing:  23 April 2014
Date of judgment:  23 April 2014