The Queen v Cameron Raymond Smith [1998] ACTSC 264 (17 July 1998)

  
  
  
  

  
   

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   HIGGINS J

   Criminal Law - Sentence - Multiple
counts of burglary and theft over period
of time - Offender drug dependent - History of numerous similar convictions
since early
age - Also took motor vehicle without authority and caused $8000
damage - Relevant considerations - Prospects for rehabilitation
- Totality - 3
year term of imprisonment imposed.

   Crimes Act 1900, ss.99, 102, 120, 128, 448

   Rumble v The Queen (Federal Court of Australia, Davies, Higgins and
Finn JJ, 21 June 1996, unreported); distinguished

  

  

   CANBERRA, 7 May and 12 June 1998 (hearing), 17 July 1998 (decision)

   #DATE 17:7:1998

   Counsel for the Crown: A
Will

   Instructing Solicitors: ACT Director of Public Prosecutions

   Counsel for the Prisoner: J Sabharwal

   Instructing Solicitors:
Legal Aid Office (ACT)

  

  

   THE COURT ORDERS THAT:

   The offender be sentenced as follows:

   1. On cc1862 (burglary),
taking into account all scheduled matters,
sentenced to 12 months imprisonment.

   2. On cc1863 (theft), conviction recorded
and no further sentence imposed.

   3. On cc1851 (burglary), sentenced to 6 months imprisonment,
concurrent with cc1862.


  4. On cc1852 (theft), conviction only recorded.

   5. On cc1853 (burglary), sentenced to 3 months imprisonment concurrent
with cc1862 and cc1851.

   6. On cc1854 (theft), conviction only recorded.

   7. On cc1855 (burglary), sentenced to 3 months
imprisonment,
cumulative on previous sentences.

   8. On cc1856 (theft), conviction only recorded.

   9. On cc1858 (burglary),
sentenced to 3 months imprisonment,
concurrent with previous sentences.

   10. On cc1859 (theft), conviction only recorded.

   11. On cc2511(burglary), sentenced to 12 months imprisonment, cumulative on
previous sentences.

   12. On cc2512 (theft), conviction
only recorded.

   13. On cc1860 (burglary), sentenced to 3 months imprisonment,
concurrent with previous sentences.

   14.
On cc1861 (theft), conviction only recorded.

   15. On cc2513 (burglary), sentenced to 9 months imprisonment,
cumulative on
previous sentences.

   16. On cc2514 (theft), conviction only recorded.

   17. On cc2515 (attempt burglary), sentenced to 3 months
imprisonment
concurrent with previous sentences.

   18. On cc2516 (burglary), sentenced to 6 months imprisonment,
concurrent
with previous sentences.

   19. On cc2517 (theft), conviction only recorded.

   20. On cc2518 (burglary), sentenced to 6 months
imprisonment
concurrent with previous sentences.

   21. On cc2519 (theft), conviction only recorded.

   22. On cc2520 (take and
use motor vehicle), sentenced to 6 months
imprisonment, concurrent with previous sentences.

   23. On cc2521 (damage motor
vehicle), sentenced to 9 months imprisonment,
concurrent with previous sentences.

   24. The sentence, being 3 years in total, will
commence on 6 March 1998.

   25. The non-parole period is fixed for 12 months.

   26. It is recommended that terms for parole include
long term residential
drug rehabilitation and counselling.

  

  

   HIGGINS J

   1. On 7 May 1998 the offender Cameron Raymond
Smith was arraigned on
four counts of burglary, four counts of theft, one count of
attempted burglary, one count of
taking a vehicle without authority and
one count alleging damage to that vehicle. He adhered to his pleas of guilty
on those counts.

   2. A presentence report and drugs of dependence assessment were requested.

   3. On 12 June 1998 he was arraigned on four further
counts of
theft and seven counts of burglary. He adhered to pleas of guilty on
those counts. Pursuant to s 448 of the Crimes Act 1900, the offender has
requested that a further four burglaries and four thefts be taken into
account.

   THE FACTS OF THE OFFENCES

   4. The first offence was committed on 11 or 12 January 1998.
The accused entered Boomerang Software, business
premises in City Walk Arcade.
He stole $90 cash and 12 computer games to the value of $1080 (cc 98/1862
and 1863).

   5. On
17 January 1998 he entered the staff room at Grace Bros Civic
store. He stole property to the value of $3725
(Schedule 1 & 2).

   6. On 21 January 1998 he entered a dwelling house in Chifley. He stole
property to the value of $3090 and $105 cash (cc 98/1851
and 1852).

   7. On 24 January 1998 he entered the Canberra Centre Arcade. He stole
property to a total value of $2983 and
$100 cash from Pure and Natural. Much
of the property was abandoned when he got caught in a sliding door
(cc 98/1853, 1854,
1855 and 1856).

   8. Later, it seems on 26 January 1998*, he entered Baileys Arcade
after hours. He entered a shop and stole
property to the value of $1605 and
$105 cash (cc 98/1858 and 1859) (* the charges state between 24/1/98
and 26/1/98).

   9. On 27 January 1998 he entered a dwelling house at Chisholm stealing
jewellery to the value of $6085 (cc 98/2511 and
2512).

   10. Later, on 27 or 28 January 1998, he entered the Garema
Terrace Café in the Garema Centre. He
stole property to the value of
$100 and $500 cash. (cc 98/1860).

   11. On 5 February 1998 he entered another dwelling
house at Chisholm
stealing jewellery, some of which, one gold ring, was recovered. The value of
the missing property was $1050, which
included $70 cash (cc 98/2513 and
2514).

   12. Later that day he attempted to burgle the house next door but could not
get
in (cc 98/2515).

   13. On 12 February 1998 the offender burgled another nearby dwelling.
He stole property valued at
$702, including $22 cash (cc 98/2516 and
2517).

   14. Later that day he entered another nearby dwelling. He stole property
valued at about $300 and cash $230. He also took a bag containing a further
$30 cash and a set of car keys and drove away in the
car to which the latter
belonged. The car was recovered the next day. It had suffered $8000 damage
(cc 98/2518, 2519, 2520 and
2521).

   15. By then police were gathering evidence identifying the offender.
Nevertheless, he committed a further burglary on
14 February 1998 at
Grace Bros stealing a $20 cap. He was seen on surveillance video
(Schedule 5 & 6). He
repeated the same conduct on
21 March 1998 but was apprehended. In the course of his attempts to evade
apprehension he threatened
a security officer at Grace Bros with a small knife
attached to a bottle opener (Schedule 7 & 8).

   16. The
offender had first been apprehended on 16 February 1998. He
was granted bail on 2 March 1998. Since 21 March 1998
he has
remained in custody.

   17. There was, by and large, a full admission of guilt made by the
offender. Some of the matters
he admitted might not have been attributed to
him otherwise.

   THE RECORD OF THE OFFENDER

   18. Unfortunately for the offender,
he has a past record of many similar
offences since November 1993 when he was still short of his 15 th
 birthday. He has
had 20 court appearances between then and
April 1997. That was the last appearance before the current crop of
offences. In April 1997,
three appearances accumulated a prison term
of six months with an additional term of two months.

   19. Before then
the offender had been subjected to a variety of detention
and supervision orders from various Children's Courts.

   THE OFFENDER'S
HISTORY

   20. Such a persistent history of offending from such an early age - the
offender is still only 19 - raises the expectation
of a traumatic childhood
and current drug dependence. It is an all too tragic but familiar pattern. So
it is with this offender.

   21. His first four years witnessed drunkenness and physical and emotional
abuse from his father directed against his mother and
siblings. His next
5 years were disturbed by persistent stalking of his mother by his father
with further instances of violence
against her.

   22. It is no surprise, given that background, that the offender's schooling
suffered. He began truanting and displaying
behavioural problems from
Year 8.

   23. He began drug use at age 14, consuming alcohol and smoking cannabis.

   24. At age
16 he was introduced by his elder brother to heroin. He began by
smoking it, then injecting it. He also began stealing, with his
brother,
presumably to further their drug use.

   25. After his brother was gaoled, the offender's drug use soon increased.
He began
"thieving day and night" to support his habit.

   26. Efforts at rehabilitation have not succeeded in the past. Indeed, it
does
not appear that the offender, despite his evident unhappiness with his
lifestyle and his family's reaction to it, was fully cooperative
with those
efforts.

   27. He was released from custody on 15 October 1997 after his April
1997 appearances. He recommenced
drug use within three weeks. The result
has been a constant round of burglaries and theft to support his drug habit.

   28.
Since his incarceration following his arrest for the last of these
offences, he has detoxified. He does express willingness to undergo
rehabilitation but his understanding of what that will require of him is not
regarded by his probation and parole officer, Ms Chia,
as realistic.

   29. He has Hepatitis C. No doubt this is due to his drug use. He
fractured his pelvis during the course of
the burglary of a third floor flat
in Civic on 31 January 1998.

   30. It is quite apparent that the offender will not
succeed in mastering
his drug addiction without long term rehabilitation. It is also apparent that
the protection of the community
requires, not only appropriate punishment for
the sustained and serious criminal conduct of the offender, but also the
opportunity
for the offender to be rehabilitated.

   THE APPROPRIATE SENTENCE

   31. There is, of course, a conflict between the objective
of rehabilitation
and that of punishment. Both objectives are in the interests of the community.
The former seeks to alter the previous
criminal propensities of the offender
and direct him towards a positive social contribution. The latter seeks to
deter both the offender
and others from future criminal conduct and, it may be
noted, properly to mark the perceived seriousness of the criminal conduct
in
question.

   32. The relevance of this offender's drug addiction is not to excuse his
crimes. It does explain his conduct. It
does offer hope that, absent that
addiction and the underlying disposition towards it, there are good prospects
for rehabilitation.

   33. In this case, I have regard to the totality of the criminal conduct for
the purpose of reflecting its overall criminality.

   34. The moral culpability of the offender may be assessed on the basis that
his motive was to relieve his addiction rather than
greed. However, the number
of offences, the intrusions into private homes, the wanton damage to a motor
vehicle and the threat of
violence to a security officer seeking to apprehend
him are aggravating features.

   35. The offender can draw no comfort from a
prior freedom from criminal
activity. He is in no position, nor within the foreseeable future is he likely
to be, to make financial
amends to his victims.

   36. I have been referred to Rumble v R (Federal Court of Australia, Davies,
Higgins and Finn JJ,
20 June 1996, unreported). A head sentence of a
total of nine years six months was reduced to six years
six months.
The offences were more serious in nature and extent than
those committed by this offender. Ms Will, for the DPP, properly concedes
that. Further, in that case no realistic prospect for rehabilitation had
appeared, up to the date of sentence. The non-parole period
of four years
was not reduced. Davies J drew attention to the fact that a head sentence
may well have to be served in full
and should not be increased beyond that
which is perceived, in totality, to reflect the maximum period which ought to
be served.

   37. In my view, the total criminality of this offender is less and his
remorse and determination to reform gives a real hope
for the success of
rehabilitation in the future. However, an immediate release into the community
is not warranted, even allowing
for the time already spent in custody.

   CAMERON RAYMOND SMITH, please stand.

   38. On cc1862 (burglary), taking into account
all scheduled matters, I
sentence you to 12 months imprisonment.

   39. On cc1863 (theft), I record a conviction, but as I
have taken account
of this charge in relation to cc1862, I impose no further sentence.

   40. On cc1851 (burglary), I sentence you
to six months imprisonment,
concurrent with cc1862.

   41. On cc1852 (theft), conviction only.

   42. On cc1853 (burglary), three
months imprisonment concurrent with 1862
and 1851.

   43. On cc1854 (theft), conviction only.

   44. On cc1855 (burglary), three
months imprisonment, cumulative on previous
sentences.

   45. On cc1856 (theft), conviction only.

   46. On cc1858 (burglary),
three months imprisonment, concurrent with
previous sentences.

   47. On cc1859 (theft), conviction only.

   48. On cc2511(burglary),
12 months imprisonment, cumulative on previous
sentences.

   49. On cc2512 (theft), conviction only.

   50. On cc1860 (burglary),
three months imprisonment, concurrent with
previous sentences.

   51. On cc1861 (theft), conviction only.

   52. On cc2513 (burglary),
nine months imprisonment, cumulative on previous
sentences.

   53. On cc2514 (theft), conviction only.

   54. On cc2515 (attempt
burglary), three months imprisonment concurrent with
previous sentences.

   55. On cc2516 (burglary), six months imprisonment, concurrent
with previous
sentences.

   56. On cc2517 (theft), conviction only.

   57. On cc2518 (burglary), six months imprisonment concurrent
with previous
sentences.

   58. On cc2519 (theft), conviction only.

   59. On cc2520 (take and use motor vehicle), six months imprisonment,
concurrent with previous sentences.

   60. On cc2521 (damage motor vehicle), nine months imprisonment, concurrent
with previous
sentences.

   61. The foregoing amounts to a total sentence of three years. It will
commence on 6 March 1998.

   62. I fix
12 months as the period to be served before being eligible for
parole.

   63. I recommend that terms for parole include long term
residential drug
rehabilitation and counselling.