Dawson v The Queen

• Jurisdiction: Australian Capital Territory
• Judge: Murrell CJ,Loukas-Karlsson,Bromwich JJ
• Judgment Date: 07 May 2019
• Date: 07 May 2019
• Court: Court of Appeal of ACT
• Docket Number: File Number: ACTCA 33 of 2018

[2019] ACTCA 9

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Before:

Murrell CJ, Loukas-Karlsson and Bromwich JJ

File Number: ACTCA 33 of 2018

Bradley Caine Anthony Dawson

(Appellant)

and

The Queen

(Respondent)

Representation:

Counsel

Mr A Doig (Appellant)

Mr M Fernandez (Respondent)

Cases Cited:

Barbaro v The Queen [2014] HCA 2; 253 CLR 58

Dalton v The Queen [2015] ACTCA 48

Fusimalohi v The Queen [2012] ACTCA 49

Henry v The Queen [2019] ACTCA 5

Hili v The Queen [2010] HCA 45; 242 CLR 520

Millard v The Queen [2016] ACTCA 14

O'Brien v The Queen [2015] ACTCA 47

R v Dawson [2018] ACTSC 238

R v Lockwood [2018] ACTSC 288

R v McMahon [2014] ACTSC 280

Legislation Cited:

Crimes (Sentence Procedure) Act 1999 (NSW) s 11

Crimes (Sentencing) Act 2005 (ACT) ss 33(1)(za), 35

APPEAL — APPEAL AGAINST SENTENCE — Manifest excess — Where the appellant was sentenced for two sets of offences — Degree of concurrency — Whether the sentencing judge failed to properly consider totality — Appellant resentenced

Decision:

Appeal allowed.

Appellant resentenced to a total period of 5 years and 5 months' imprisonment with a non-parole period of 3 years.

The Court

The Appeal

1 On 25 May 2018, the sentencing judge sentenced the offender for 10 offences to an effective sentence of six years and seven months' imprisonment with a non-parole period of four years (60.8%): R v Dawson [2018] ACTSC 238 ( R v Dawson). The offences related to two days: 10 December 2017 and 14 December 2017.

2 The Appellant appealed on the ground that the aggregate sentence and related non-parole period were manifestly excessive.

3 The individual sentences that were imposed were as follows:

Offences on 10 December 2017

• 1) CC18/2078 — burglary — 28 months' imprisonment discounted from 37 months, from 14 December 2017 to 13 April 2020;

• 2) CC18/2093 — theft — 24 months' imprisonment discounted from 32 months, from 14 June 2019 to 13 June 2021;

• 3) CC18/2080 — take motor vehicle — 6 months' imprisonment discounted from 8 months, from 14 March 2021 to 13 September 2021;

  Offences on 14 December 2017

• 4) CC17/13721 — burglary — 29 months' imprisonment discounted from 36 months, from 14 June 2021 to 13 November 2023;

• 5) CC17/13722 — theft — 14 months' imprisonment discounted from 17 months, from 14 March 2023 to 13 May 2024;

• 6) CC17/13723 — theft — 9 months' imprisonment discounted from 11 months, from 14 October 2023 to 13 July 2024;

• 7) CC17/13725 — escape custody — 1 month's imprisonment, from 14 June 2024 to 13 July 2024;

• 8) CC18/586 — unlawful possession of stolen property — 1 month's imprisonment, from 14 June 2024 to 13 July 2024;

• 9) CC17/13724 — possess prohibited substance — 3 months' imprisonment, from 14 April 2024 to 13 July 2024.

4 The last two offences were summary offences arising from items found in the appellant's possession at the time of his arrest, and transferred from the Magistrates Court.

5 The Appellant accepted that the sentencing judge had imposed individual sentences that were within range. This concession was properly made. The maximum penalty for burglary is 14 years' imprisonment and the maximum penalty for theft is 10 years' imprisonment. As was observed in Fusimalohi v The Queen [2012] ACTCA 49 ( Fusimalohi) by Refshauge J at [51] and, more recently, by Loukas-Karlsson J in R v Lockwood [2018] ACTSC 288 at [51], although there is a “significant range of available sentences” for burglary, in this jurisdiction sentences for burglary of residential premises are generally within the range of one to two years and six months' imprisonment. Having regard to the objective seriousness of the principal offences in this case, the sentences that were imposed were well within range.

6 Further, the Appellant accepted that the sentencing judge had applied an appropriate discount under s 35 of the Crimes (Sentencing) Act 2005 (ACT) ( Sentencing Act). His Honour applied a discount of 20 per cent for the offences committed on 10 December 2017 and 25 per cent for the offences committed on 14 December 2017.

7 The Appellant said that the manifest excessiveness of the overall sentence resulted from:

• (a) inadequate concurrency between sentences and excessive accumulation;

• (b) failure to properly consider totality; and

• (c) misreading the Appellant's criminal history.

8 The first and second contentions address the same matter. The Appellant's written submissions did not substantially address the last contention and, in oral submission, the Appellant's counsel described it as a “minor matter”. We agree.

9 Consequently, the principal issue for this Court is whether, having regard to principles of totality (and the related issue of concurrency and accumulation), the effective sentence was manifestly excessive.

Facts

10 Offences 1 to 3. At about 1:42 AM on 10 December 2017, the Appellant forced entry to residential premises through a rear window, causing damage to the window (estimated value of $1,500). He spent more than five hours in the premises. Items of significant financial value (88 items, total value $56,705) were taken and most were not recovered. The stolen items included items of great sentimental value that were not recovered. Clothing and property was left strewn across the rooms. After disconnecting the computer system that controlled CCTV cameras around the residence, at about 7:24 AM the Appellant left in a vehicle that had been parked in the driveway of the premises. The vehicle was recovered on 12 December 2017.

11 Offences 4 and 5. At about 5:20 AM on 14 December 2017, the Appellant entered residential premises at a time when the residents would ordinarily have been at home. Two residents were at home in bed, one of whom was a young child. The Appellant stole a purse containing $50 and a credit card.

12 Offence 6. In an unrelated incident committed earlier on 14 December 2017, the offender stole a Navman GPS, a car charger and a pair of sunglasses (total value of $300) from a motor vehicle that was parked in a residential carport.

13 Offences 7 to 9. At about 5:45 AM on 14 December 2017, the Appellant was arrested. When told that he was under arrest, the offender began to run from police, but was quickly apprehended. He was in possession of two stolen bankcards belonging to a fourth victim and a prohibited substance, namely amphetamines.

14 A victim of the offence committed on 10 December 2017 provided a victim impact statement setting out the extensive psychological trauma caused by the offences to the whole family. As would be expected, the trauma relates to the violation and ransacking of their home and the loss of numerous items of high sentimental value, which are irreplaceable.

15 No doubt the victim of the burglary committed on 14 December 2017 was also highly traumatised, as she was woken by the sound of the Appellant entering her premises and a young child was present at the time.

Criminal history

16 The Appellant's criminal history includes three convictions for burglary and six convictions for stealing.

17 In Western Australia, the Appellant has convictions for burglary (one offence in 2009 and one offence in 2013), stealing (one offence in 2010, five offences in 2013) and other minor matters in which fines were imposed. In April 2014, the Appellant received a seven months' sentence for the 2013 burglary (of which he served only one month and the remainder was suspended) and six month concurrent intensive supervision orders for the 2013 stealing offences (which were also concurrent with the suspended sentence for the burglary).

18 In NSW, the Appellant has convictions for larceny (one offence in 2016), goods in custody suspected of being stolen (one offence in 2016), two offences of aggravated burglary (both committed in 2016, the aggravating feature being that persons were in the premises) and possibly other matters; the “Criminal History — Bail Report” is difficult to follow. In relation to the aggravated burglary matters, the proceedings were adjourned under s 11 of the Crimes (Sentence Procedure) Act 1999 (NSW) by the NSW District Court at Lismore until 11 December 2017, when the Appellant failed to appear and a bench warrant issued. Of course, that date was in the middle of the two sets of offences that are before the Court today.

19 At the time of the subject offences, the Appellant was on conditional liberty, being the two good behaviour orders that had been imposed on 16 May 2016 by the NSW Local Court for offences of dishonesty. In addition, the proceedings for aggravated burglary were pending before the NSW District Court in Lismore.

Subjective features

20 The Appellant is an Aboriginal man who was 29 years old at the date of sentence. He was raised in the Port Hedland area of Western Australia by his mother, with whom he continues to enjoy a supportive relationship. However, the offender's childhood was somewhat unstable as the family frequently relocated.

21 The Appellant has one child, currently five years of age, whom the Appellant has not seen for four years as the child resides interstate.

22 The Appellant completed Year 9 at school. He has been employed as a truck driver for a mining company and as a labourer. His most recent employment was in 2014. Before his arrest in December 2017, he was receiving a Newstart allowance.

23 The Appellant has a long-standing problem of polysubstance abuse. From 15 years of age, he consumed cannabis on a daily basis. From 21 years of age until mid-2017, the Appellant was a heavy user of methamphetamine. He attempted residential rehabilitation at Benelong Haven in 2017, but left after six weeks following a relapse. The Appellant told the author of the...