SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: / R v HuntCitation: / [2016] ACTSC 379
Hearing Dates: / 16 August, 8 December 2016
Decision Dates: / 16 August, 8 December 2016
Before: / Murrell CJ
Decision: / Sentenced to 21 months’ imprisonment.
Catchwords: / CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – theft – damaging property – trespass – on conditional liberty when offences committed – adjourned to permit rehabilitation – offender breaches bail by leaving residential rehabilitation program early – sentence of full-time imprisonment imposed
Legislation Cited: / Crimes Act 1900 (ACT) s 116
Criminal Code 2002 (ACT) ss 312, 308
Public Order (Protection of Persons and Property) Act 1971 (Cth) s11
Parties: / The Queen (Crown)
Benjamin John Hunt (Offender)
Representation: / Counsel
Mr D Sahu Khan (Crown)
Mr P Bevan (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown)
Bevan & Co (Offender)
File Numbers: / SCC 130 of 2016; SCC 132 of 2016
MURRELL CJ:
1. The offender is to be sentenced for two episodes of offending. On 16 November 2015, he committed the offences of aggravated burglary (burglary in company) and theft at the premises of Beaurepaires in Fyshwick. On 17March 2016, he committed offences of damage property and trespass in Wanniassa.
2. The maximum penalty for an offence of aggravated burglary, contrary to s312 of the Criminal Code 2002 (ACT) (Criminal Code), is 20 years' imprisonment and/or a substantial fine. The maximum penalty for theft, contrary to s308 of the Criminal Code, is 10years' imprisonment and/or a fine. The maximum penalty for the offence of damaging property, contrary to s116(3) of the Crimes Act 1900 (ACT), is two years' imprisonment and/or a fine. The maximum penalty for an offence of trespass, contrary to s11 of the Public Order (Protection of Persons and Property) Act 1971 (Cth), is a fine of $1,500.
3. The offender has been in custody since his arrest on 17 March 2016.
Offences on 16 November 2015
4. On 16November 2015, the offender was on a two-year good behaviour order (from 23June 2014) relating to a three-month suspended sentence for the offence of failing to appear. He was also on suspended sentences for furious driving (threemonths) and driving with an illicit drug in his system (six weeks).
5. Between about 2:00–2:30am on 16 November 2015, the offender and another male forced entry to the commercial premises of Beaurepaires at Fyshwick. The offender forced a lock to a storeroom. The offenders stole various items from the yard and the storeroom (total value of $11,840).
6. On 4 December 2015, police searched the offender's residence at Richardson and recovered some of the items that had been stolen on 16 November.
7. The co-offender was not charged.
8. The offender entered pleas of guilty to the 16 November offences in the Magistrates Court at the seventh mention. He will receive a discount of 25% for the pleas, a relatively generous discount given that the pleas were not entered until the seventh mention.
9. The aggravated burglary was of some objective seriousness, but not of high objective seriousness. It occurred at commercial premises at night, when no-one was present or likely to be present. As far as the theft was concerned, some of the property was recovered and the stolen items were not of sentimental value.
10. The fact that the offender was on conditional liberty at the time of the offences for a number of other matters, albeit of a different nature, is of some importance.
Offences on 17 March 2016
11. In March 2016, the offender was on bail for the offences committed on 16November 2015.
12. At 9.15 am on 17 March 2016, the offender and his co-offender, MsSchubert, used tools on a rear door of a residence at Wanniassa in an attempt to break into the premises. They left a pickaxe nearby. They were observed by a witness, who called the police. Police located the offender in Wanniassa, trespassing on other premises.
13. The co-offender pleaded guilty in the Magistrates Court.
14. The matters were transferred to the Supreme Court. When the matters were before the Registrar, the offender indicated that he would plead guilty. The offender should receive a 15% discount for the pleas.
15. The offender was on conditional liberty at the time of the offences of 17 March 2016, which constituted breaches of the good behaviour orders to which I have already referred. The March offences were similar to those for which the offender was on bail.
16. On 9 August 2016, the Chief Magistrate dealt with the breaches, sentencing the offender to three months' full-time imprisonment for the breaches involving the offences of fail to appear and furious driving. The three-month sentences are to be served concurrently and to run from 17March to 16June 2016. The Chief Magistrate also sentenced the offender for the offence of being a driver with an illicit drug in his system to six weeks' full-time imprisonment, from 17 June to 30 July 2016, totally cumulative.
17. Since 31 July 2016, the offender has been in custody solely in relation to the matters for which I am to sentence him.
Subjective circumstances
18. The offender is now 33 years old. He has a significant criminal record consisting largely of motor vehicle offences. There is no significant record for matters of dishonesty. Prior to 9 August 2016, he had not been sentenced to fulltime imprisonment.
19. The pre-sentence report states that, since 2009, the offender has been subject to 11periods of supervision, either on bail or on a good behaviour order. He has responded poorly.
20. The offender is the oldest of three children. His childhood was unstable, largely due to his father's illicit substance abuse and criminal activity. The family was itinerant; the offender's father often moved the family at short notice to avoid the police. The offender's father was severely physically abusive to the offender and his siblings. The offender has no ongoing contact with his father, but is close to his mother and two younger siblings.
21. The authors of the pre-sentence report state that the offender would benefit from counselling in relation to the child abuse.
22. The offender has had two significant relationships. A former relationship produced two children, with whom the offender maintains contact. The offender has been with his current partner for 12months.
23. The offender was educated to a Year 8 standard. However, the family's itinerant lifestyle meant that the offender did not benefit greatly from education. He has limited literacy skills. He has worked as a cleaner, factory worker and forklift operator. The offender says that, if released, he may be able to obtain employment as a truck driver's offsider with a local concrete company.
24. The offender has a long history of polysubstance abuse. He commenced using cannabis at 12 years of age and methamphetamine at 14years of age. Prior to his arrest in March 2016 he was a heavy user of both substances. He asserts that he has not used illicit substances since his admission to custody. However, on 28 June 2016, he was disciplined for introducing methamphetamine into the Alexander Maconochie Centre (AMC) via the visits area.
25. While in the AMC, the offender has completed the SMART Recovery program (on 30 June 2016). He has also made inquiries about residential rehabilitation. Despite the fact that he is 33 years of age and has had a polysubstance abuse for two decades, the offender has not previously attempted residential rehabilitation.
26. The offender has completed an assessment for participation in the Arcadia House transition program run by Directions ACT. It is a 12-week transition program for substance use, consisting of an eight-week residential program and fourweeks’ full-time treatment in a Monday to Friday day program. Subject to providing further supporting material, the offender’s suitability for the program will be assessed. If suitable, he will then await a placement. There is no indication as to how long that might take.
27. It is desirable that, at 33 years of age and after two decades of substance abuse, the offender attempt an intensive therapeutic rehabilitation program at Arcadia House. If he is able to address his substance abuse, then he will indirectly address the key factor in his offending behaviour. The offender understands the correlation between his substance abuse and offending behaviour.
28. The offender has been assessed as having a medium risk of general re-offending, but this seems to relate largely to the high-risk factor of substance abuse. It is my view that the offender should be given the opportunity of undertaking the Arcadia House Program. Participation would address the sentencing purposes of punishment and accountability because of the restrictions associated with the Program. It is to be hoped that the offender will achieve significant progress with rehabilitation through the Arcadia House Program.
16 August 2016
29. On 16 August 2016, I indicated the following sentences that result in an effective sentence of 21 months:
(a) For the offence of aggravated burglary, I indicated that I would impose a sentence of two years' imprisonment, less 25% to arrive at a sentence of 18 months' imprisonment.
(b) For the associated offence of theft, I indicated that I would impose a sentence of 12 months' imprisonment, less 25% to arrive at a sentence of ninemonths' imprisonment, to be served concurrently with the sentence for aggravated burglary.
(c) For the offence of damage property, I indicated that I would impose a sentence of sixmonths' imprisonment, less 15% to arrive at a sentence of about fivemonths' imprisonment, two months to be served concurrently.
30. For the offence of trespass, I convicted the offender and fined him $250, payable immediately.
31. I adjourned finalisation of the sentence proceedings until 6 September 2016. The parties were granted liberty to re-list the matter if the offender obtained a place at Arcadia House.
19 October 2016
32. On 19 October 2016, the offender entered residential rehabilitation at Arcadia House.
33. The offender was bailed to Arcadia House and one of the conditions was:
If for any reason he leaves the Arcadia House Program the offender is to report immediately to Corrective Services in person or by telephone if for any reason it is not feasible to report in person. The offender is also to report to his legal representatives.
8 December 2016
34. Regrettably, the offender remained at Arcadia House for only 12 days, discharging himself on 1 November 2016 for the stated reason that the Arcadia House workers went through his personal belongings.
35. He reported neither to Corrective Services nor to his legal representative and, for the past five weeks, has lived with his partner and his children. There is no explanation for his failure to comply with the important bail condition requiring him to report.
36. It is recognised that drug addiction is a chronic relapsing condition. Addicts may relapse. It is for that reason that I imposed the bail condition. It was designed to provide an “escape mechanism”. Problems associated with relapse can sometimes be addressed if they are brought to notice quickly.
37. Unfortunately, the offender’s failure to remain at Arcadia House is consistent with a past history of poor response to supervision.
38. In these circumstances, having regard to sentencing purposes, including general and specific deterrence, the only appropriate manner in which to proceed is to impose a sentence of full-time imprisonment.
Sentence
39. For the offence of aggravated burglary, the offender is sentenced to 18 months’ imprisonment from 30 April 2016 to 29 October 2017. For the offence of theft, he is sentenced to nine months’ imprisonment from 30 April 2016 to 29 January 2017. For the offence of damage property, he is sentenced to five months’ imprisonment from 30August 2017 to 29 January 2018.
40. The sentences have been backdated by seven months and eight days to 30 April 2016 to take account of the fact that the offender spent seven months and two days in custody from 17 March to 19October 2016 and 12 days in residential rehabilitation which, in accordance with convention, I have equated to six days in full-time custody.
41. As this is the first set of sentences that the offender has served by way of full-time imprisonment, I will impose a relatively short non-parole period. The offender’s attendance at Arcadia House provides some indication that he is interested in pursuing rehabilitation. I hope that, if given the opportunity to rehabilitate on parole, the offender will take advantage of that opportunity. I set a non-parole date of 29 March 2017 and the offender may be released to parole from that date.
I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.Associate: Anneke Bossard
Date: 4 January 2017
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