2014-11-04 R v Craft; R v O'Connor [2014] ACTSC 327
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
|Case Title: |R v Craft; R v O’Connor |
|Citation: |[2014] ACTSC 327 |
|Hearing Date: |30 October 2014 and 4 November 2014 |
|Decision Date: |4 November 2014 |
|Before: |Murrell CJ |
|Decision: |Mr O’Connor – effective sentence of 8 years’ imprisonment |
| |Mr Craft – effective sentence of 5 years’ imprisonment |
| |See [51]-[53]. |
|Category: |Sentence |
|Catchwords: |CRIMINAL LAW – Sentence – co-offenders – burglary – theft – dishonesty drive/ride in motor |
| |vehicle – attempt aggravated robbery – dishonestly take motor vehicle – accessory after the fact|
| |to aggravated robbery – guilty pleas – substantial criminal history – history of substance abuse|
| |– breach of parole |
|Legislation Cited: |Crimes (Sentencing) Act 2005 (ACT) ss 33, 35 |
| |Criminal Code 2002 (ACT) ss 44, 308, 310, 311, 318(1), 717 |
| |Drugs of Dependence Act 1989 (ACT) s 123 |
|Cases Cited: |R v Henry (1999) 46 NSWLR 346 |
| |R v Ponfield (1999) 48 NSWLR 327 |
|Parties: |The Queen (Crown) |
| |Daniel James Craft (First Offender) |
| |Mark Anthony O’Connor (Second Offender) |
|Representation: |Counsel |
| |Ms S Saikal (Crown) |
| |Mr A Doig (First Offender) |
| |Mr R Davies (Second Offender) |
| |Solicitors |
| |ACT Director of Public Prosecutions (Crown) |
| |Darryl Perkins Solicitor (First Offender) |
| |Legal Aid ACT (Second Offender) |
|File Number(s): |SCC 88, 89, 110 and 129 of 2014 |
MURRELL CJ:
Introduction
Mr O’Connor is to be sentenced for the following offences, which have the listed maximum penalties:
|1 |19-20 January 2014 |burglary at Deakin |Criminal Code 2002 (ACT) |14 years’ imprisonment |
| | | |(Criminal Code) s 311 | |
|2 |22 January 2014 |burglary at Belconnen |Criminal Code s 311 |14 years’ imprisonment |
|3 |22 January 2014 |theft at Belconnen |Criminal Code s 308 |10 years’ imprisonment |
|4 |22 January 2014 |burglary at Melba |Criminal Code s 311 |14 years’ imprisonment |
|5 |22 January 2014 |theft at Melba |Criminal Code s 308 |10 years’ imprisonment |
|6 |22–26 January 2014 |dishonestly drive/ride |Criminal Code s 318(1) |5 years’ imprisonment |
| | |in motor vehicle | | |
| | |without consent (van) | | |
|7 |25 January 2014 |attempt aggravated |Criminal Code s 44, 310 |25 years’ imprisonment |
| | |robbery of car | | |
|8 |25 January 2014 |dishonestly take motor |Criminal Code s 318(1) |5 years’ imprisonment |
| | |vehicle (Proton) | | |
Mr Craft is to be sentenced for the following offences, which have the listed maximum penalties:
|1 |22-26 January 2014 |dishonestly drive/ride in|Criminal Code s 318(1) |5 years’ imprisonment |
| | |motor vehicle without | | |
| | |consent (van) | | |
|2 |25 January 2014 |accessory after the fact |Criminal Code ss 310, 717 |20 years’ imprisonment |
| | |to attempt aggravated | | |
| | |robbery | | |
|3 |25 January 2014 |dishonestly take motor |Criminal Code s 318(1) |5 years’ imprisonment |
| | |vehicle (Proton) | | |
In relation to offence 7 involving Mr O’Connor and offence 2 involving Mr Craft, two additional offences of minor theft of petrol (on 24 and 25 January 2014) are to be taken into account. The maximum penalty that can be imposed for an offence of minor theft is six months’ imprisonment.
The offenders indicated pleas of guilty after they were committed for trial to the Supreme Court, but before the matters were fixed for trial. Although the Crown case was strong in relation to each of the offences, the offenders should receive sentence discounts of at least 15 per cent to recognise the utilitarian value of the guilty pleas and other considerations under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
Mr O’Connor has been in custody since 27 January 2014 in relation to these offences.
Mr Craft has been in custody since 26 January 2014 and is serving the remainder of the sentences for which he was on parole at the time that these offences occurred, and sentences that were imposed by the Magistrates Court in July 2014 for minor offences of dishonesty that occurred in August and December 2013. His current effective sentence expires on 30 April 2016 and his nonparole period currently expires on 28 June 2015.
In the period leading up to the offences, Mr O’Connor was in custody serving sentences for burglary and other dishonesty offences. He had elected to serve out those sentences rather than apply for parole. The sentences expired on 12 January 2014, and Mr O’Connor was released on that day. He began to consume a significant quantity of illegal drugs. The first burglary for which I am to sentence him occurred eight days after Mr O’Connor was released from custody.
Facts
The burglaries and the associated thefts were unremarkable. Each of the burglaries involved breaking into residential premises during the afternoon or early evening, when the occupants were not at home. In each case, moderate damage was occasioned at the point of entry. In the case of the burglary at Deakin, the premises were unoccupied because they were being prepared for sale. Nothing was stolen. In the case of the burglaries at Belconnen and Melba, there were associated thefts. The value of items taken from the Belconnen premises was $2677. The value of items taken from the Melba premises was $4100 and the stolen property included a significant quantity of jewellery, which is assumed to have had some sentimental value to the owner.
In relation to the burglaries, Mr O’Connor was identified as the culprit by means of forensic evidence.
On 23 January 2014, a Mitsubishi van was stolen from Gungahlin. On the evening of 23 January 2014, the offenders were in possession of the van at the Caldwell shops. Mr O’Connor approached an associate and offered to sell the van to him, and then departed in the van. The offenders continued to drive and ride in the van until 25 January 2014.
At 10 pm on 24 January 2014, Mr Craft drove the van to a Coles Express petrol station in Gungahlin. Mr O’Connor was in the passenger seat. Mr O’Connor filled the van with petrol and the offenders then left without paying.
At about 1.25 am on 25 January 2014, the offenders stopped the van beside a stationary silver Mercedes Benz vehicle that was occupied by the owner of the vehicle, who had just entered it. Mr Craft was driving and Mr O’Connor was in the passenger seat of the van. Mr O’Connor exited the van carrying a large machete, while Mr Craft remained in the van. Mr O’Connor approached the driver’s side of the Mercedes Benz and tried to open the driver’s door, but failed. He used the machete to smash the driver’s window. He reached into the car and attempted to remove the keys from the ignition, without success. He ran back to the van and Mr Craft drove away, travelling through red lights.
At about 2 am on the same morning, the offenders and a Ms Cook drove into a petrol station in Holt. Mr O’Connor left the van carrying the large machete. The lower part of his face was concealed. He approached a silver Proton hatchback vehicle which was unlocked. The keys were in the ignition. Mr O’Connor entered the Proton and drove from the petrol station. Mr Craft and Ms Cook followed in the van. The van was abandoned, and Mr Craft and Ms Cook entered the Proton.
At about 5.15 am Mr Craft drove the vehicle into a petrol station in Kaleen. He exited the vehicle and filled it with petrol. The offenders left without paying.
At about 7 am Mr Craft was driving the Proton along the Federal Highway, heading north from Canberra in NSW. Mr O’Connor was in the back seat with a woman. Ms Cook was in the front passenger seat. Police signalled for the vehicle to stop and then approached the vehicle on foot. Mr Craft accelerated the vehicle away from the police. After a short pursuit, Mr Craft lost control of the vehicle, which crashed into a guard rail and came to a halt. Both offenders were taken to Canberra Hospital, where they were treated for injuries sustained in the collision. Mr O’Connor suffered a number of injuries, the most serious of which was an undisplaced fracture at C4. He was advised to wear a collar for six weeks and to participate in rehabilitation.
Upon discharge from the Hospital, both offenders were arrested.
Objective seriousness
The offence of attempted aggravated robbery was objectively very serious. The victim was confronted at close quarters with a machete and the machete was wielded, albeit that it was used to break into the vehicle rather than used in a direct attempt to intimidate or injure the victim. The victim was, in effect, trapped in her vehicle and, in that sense, she was particularly vulnerable. The vehicle itself suffered significant damage. It is difficult to discern why the offence occurred; possibly it was because the offenders wished to abandon the van and travel in a different and more attractive vehicle. It is most unlikely that there was planning in relation to the specific offence and, in that sense, it could be described as opportunistic. On the other hand, the offenders were in possession of a machete, which Mr O’Connor was prepared to utilise in relation to the seizure of vehicles.
The offence of driving/riding in the van was of moderate objective seriousness. The offenders used the vehicle over several days before abandoning it. The offence of taking the Proton was serious. The vehicle was taken from the petrol station by Mr O’Connor while he was partially disguised and in possession of the machete (albeit that it was not used in connection with the offence, the vehicle being unoccupied). Mr Craft drove the vehicle on the Federal Highway, a major national road.
Victim Impact
The Court received a victim impact statement from the victim of the attempted carjacking. As one would expect, she has suffered significant psychological injury. She feels vulnerable and anxious when she is at home alone. She feels unable to work late hours alone. Because she fears for her personal safety, she has purchased a companion guard dog at significant cost. Her lifestyle has been affected because she has lost the confidence to pursue work and travel opportunities that she may otherwise have embraced. In addition, she suffered damage to her vehicle and lost the use of the vehicle for a significant period while it was being repaired. These are the sorts of injuries that one would expect to flow from a serious offence such as the one in question.
Mr O’Connor
Mr O’Connor is now 26 years old. He was 25 years old at the time of the offences.
As a young person, he misconducted himself in relation to motor vehicles. In 2008 (when he was just 18 years old) he received a six-month suspended sentence order for theft. There was an associated requirement that he undertake drug and alcohol treatment.
In 2009, Penfold J sentenced him for a raft of dishonesty offences committed in 2008: two offences of burglary, four offences of theft and a breach of good behaviour order related to driving a motor vehicle without consent. Her Honour imposed an effective sentence of 30 months’ imprisonment (12 and 18 months on each of the burglary offences) from 22 December 2008, with a nonparole period of 13 months, and made a treatment order under s 123 of the Drugs of Dependence Act 1989 (ACT) for 12 months to commence upon release. He was released to parole on 21 January 2010. His compliance with parole was poor and he was returned to custody in April 2010. Since then, he has spent only brief periods in the community.
On 9 May 2012, Mr O’Connor received an effective sentence of two years and nine months’ imprisonment from 13 April 2012 to 12 January 2015 for aiding and abetting a burglary and theft (that occurred on 21 March 2011), with a nonparole period of one year and nine months and a release date of 12 January 2013.
The subject offences were not committed while the offender was on conditional liberty, but they were committed within two weeks of the expiry of parole. Mr O’Connor has continued to demonstrate an unwillingness to cooperate with ACT Corrective Services. For example, he refused to attend an appointment in relation to preparation of a pre-sentence report for these proceedings.
The offender was raised by his mother until he was 13 or 14 years of age. Thereafter, through his adolescence he resided mainly in refuges or with friends. He has no ongoing contact with his mother, father or siblings.
The offender’s schooling was limited. He did not complete the Year 10 Certificate. Generally, since leaving school he has depended on social assistance.
Mr O’Connor has a history of polysubstance abuse, commencing at a young age. He began to smoke cannabis when he was about 12 years old and he began to use crystal methamphetamine when he was about 15 years old, and heroin when he was about 19 years old.
Upon release to the community in January 2014, Mr O’Connor quickly resumed heavy drug use and he has little recall of the period in the community between 12 and 25 January 2014. Although he recently refused a request to supply a urine sample for drug testing, he is undertaking counselling with satisfactory engagement and he is interested in undertaking rehabilitation through the Wayback residential rehabilitation program.
Mr O’Connor’s criminal history, unresolved substance-abuse problem and lack of positive community support suggest that he is at high risk of reoffending.
Mr Craft
Mr Craft is 33 years old. He was 32 years old at the date of the offences.
Mr Craft engaged in misconduct as a child in New South Wales and in the ACT, including dishonesty. He appeared in Court in relation to a number of matters in 2002, 2003 and 2005. While there were some offences of dishonesty, most matters were driving offences.
In 2006, Mr Craft received his first sentence of imprisonment, a period of six months, to be suspended after four months. The sentence was imposed for damaging property. For offences committed in December 2006, in 2007 he received an effective sentence of two years and six months’ imprisonment from October 2006 to be released after serving 13 months (in November 2007) on a two-year good behaviour order with conditions relating to drug and alcohol treatment. That sentence related to driving a motor vehicle without consent and other driving matters. In January 2008, he received a four-year sentence backdated to December 2007 with a nonparole period of 18 months (earliest release date June 2009) for two offences of driving a motor vehicle without consent.
Within two months of his release (between June and August 2009), Mr Craft committed two offences of aggravated burglary, two offences of burglary, and related theft offences. He was imprisoned for a total period of about six years from 29 August 2009 (the individual sentence lengths were between nine months and four years six months). He was released to parole on 11 December 2012 “owing” 415 days imprisonment. According to the pre-sentence report, there was significant non-compliance with parole conditions.
When he had almost completed his parole (having served 411 days), from 31 August 2013, he committed offences of minor theft, damage property and going equipped for theft. The sentences that were recently imposed by the Magistrates Court for those matters were made entirely cumulative on the outstanding parole period of 415 days. Mr Craft received individual sentences of two months and six months (1 September 2015 to 30 April 2016). His earliest release date is 28 June 2015.
On my rough calculation, since January 2008 Mr Craft has spent less than 18 months out of custody. By 28 June 2015, he will have spent six of the preceding 7 years 6 months in custody, and will be facing a further significant period in custody in NSW. Mr Craft has been charged in NSW with a serious offence relating to the NSW motor vehicle accident associated with the police pursuit on 25 January 2014. When Mr Craft is released in relation to the sentence that I impose, it is likely that he will be extradited to NSW to face proceedings in relation to that matter.
The pre-sentence report in relation to Mr Craft notes his long history of failing to comply with supervision arrangements with ACT Corrective Services. Although Mr Craft had almost completed his parole when he began to reoffend, between December 2012 (when he was released to parole) and January 2014 (when he was arrested for these matters) he had been non-compliant with parole, and the Sentence Administration Board had issued a formal warning to him.
Mr Craft had a dysfunctional childhood, residing in a number of foster homes after his mother surrendered him to statutory care. The offender was very unhappy in foster care and frequently ran away. When he was about 13 years old he did settle in a foster placement, but the placement ended after about two years when the foster parents divorced. Mr Craft returned to reside with his mother, but that arrangement broke down after only a few months. The offender completed Year 9 of schooling.
In 2006 he formed a relationship, but his partner terminated the relationship because of the offender’s persistent use of illicit substances.
In 2010, his sister died as a consequence of a drug overdose. He has no ongoing contact with his mother, father or brother. He has a four-year-old daughter with whom he has no contact, and he has never seen a second child, who was born in August 2014.
Mr Craft has a long history of polysubstance abuse. He commenced using methyl amphetamine and heroin at about 15 years of age. He was using substances heavily in the two week period prior to the commission of the offences for which I am to sentence him. He is ambivalent towards drug and alcohol treatment.
Mr Craft has ongoing physical problems as a result of the motor vehicle accident that occurred during the commission of the offences.
Mr Craft suffers from depression (or, perhaps, from a psychosis), which is currently medicated. However, the condition is poorly managed when he is in the community and there have been episodes of threatened self harm while in custody.
Mr Craft’s mental health issues and long-standing substance-abuse problems, combined with a lack of accommodation and familial support within the community mean that there is a high risk of reoffending.
Sentencing Act
In sentencing the offenders, I have regard to the sentencing purposes set out in s 7 of the Sentencing Act. In the case of each offender, relevant purposes include punishment, general deterrence, personal deterrence (particularly having regard to their long histories of offences involving dishonesty), accountability and denunciation. I am also mindful of the need to protect the community against the offenders, who have repeatedly disregarded the entitlement of others to have their property (and, relevantly in the case of Mr O’Connor) to have their homes respected. I take into account the significant victim impact of the offence of attempted aggravated robbery.
Insofar as those factors are known to me and relevant, I have also considered the matters set out in s 33 of the Sentencing Act, and the most significant matters are referred to above.
The NSW guideline judgment in R v Ponfield (1999) 48 NSWLR 327 (Ponfield) is of some assistance in relation to the burglary matters. The NSW guideline judgement in R v Henry (1999) 46 NSWLR 346 (Henry) (where a maximum available penalty of 20 years applied) is of some relevance in relation to the robbery matter. The circumstances of the attempted aggravated robbery are significantly worse than those associated with the typical case that was discussed in Henry. Among other things, these offenders are older and they have significant prior criminal histories.
While both Ponfield and Henry are of some assistance, neither case is binding on this Court. The appropriate sentences are dictated by the objective circumstances, the subjective circumstances and the maximum available penalties, taking into account other relevant considerations, including parity and totality. The sentences that I impose should not be crushing; one cannot predict whether either or both offenders will be ready for change years hence when they are eligible for release. While sentencing patterns in NSW provide some assistance, sentencing patterns in the ACT are a more persuasive consideration.
Sentences
Mr O’Connor is convicted and I impose the following sentences:
|1 |19-20 January 2014 |burglary at Deakin |2 years 6 months’ imprisonment (reduced from 3 years)|
| | | |27 January 2014 – 26 July 2016 |
|2 |22 January 2014 |burglary at Belconnen |2 years 11 months’ imprisonment (reduced from 3 years|
| | | |6 months) 27 April 2014 – 26 March 2017 |
|3 |22 January 2014 |theft at Belconnen |15 months’ imprisonment (reduced from 18 months) |
| | | |27 April 2014 – 26 July 2015 |
|4 |22 January 2014 |burglary at Melba |2 years 11 months’ imprisonment (reduced from 3 years|
| | | |6 months) 27 July 14 – 26 June 2017 |
|5 |22 January 2014 |theft at Melba |15 months’ imprisonment (reduced from 18 months) 27 |
| | | |July 2014 – 26 October 2015 |
|6 |22–26 January 2014 |dishonestly drive/ride in motor|20 months’ imprisonment (reduced from 2 years) 27 |
| | |vehicle without consent (van) |January 2015 – 25 September 2016 |
|7 |25 January 2014 |attempt aggravated robbery of |6 years’ imprisonment (reduced from 7 years 6 months,|
| | |car |taking into account the additional matters) 27 |
| | | |January 2016 – 26 January 2022 |
|8 |25 January 2014 |dishonestly take motor vehicle |20 months (reduced from 2 years) 27 July 2015 – 26 |
| | |(Proton) |March 2017 |
This is an effective sentence of eight years’ imprisonment. I impose a nonparole period of five years and two months’ imprisonment. The nonparole period will expire on 26 March 2019.
Mr Craft is convicted and I impose the following sentences:
|1 |22-26 January 2014 |dishonestly drive/ride in motor|20 months’ imprisonment (reduced from 2 years) 26 |
| | |vehicle without consent (van) |July 2014 – 25 March 2016 |
|2 |25 January 2014 |accessory after the fact to |4 years’ imprisonment (reduced from 5 years, taking |
| | |attempt aggravated robbery |into account the additional matters) 26 July 2015 – |
| | | |25 July 2019 |
|3 |25 January 2014 |dishonestly take motor vehicle |20 months’ imprisonment (reduced from 2 years) 26 |
| | |(Proton) |January 2015 – 25 September 2016 |
This is an effective sentence of five years’ imprisonment from 26 July 2014 to 25 July 2019 for the current matters, and it means that Mr Craft will spend a total of five years and six months in custody from 26 January 2014. I fix a new nonparole period of three years and eight months’ imprisonment from 26 January 2014. The nonparole period will expire on 25 September 2017.
| |I certify that the preceding fifty [50] numbered paragraphs are a true |
| |copy of the Reasons for Sentence of her Honour Chief Justice Murrell. |
| |Associate: |
| |Date: 11 December 2014 |
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