R v Ayling

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Murrell CJ
• Judgment Date: 20 August 2019
• Docket Number: File Number: SCC 142 of 2019
• Date: 20 August 2019

The Queen

(Crown)

and

Corey Ayling

(Offender)

[2019] ACTSC 229

Before:

Murrell CJ

File Number: SCC 142 of 2019

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

CRIMINAL LAW — JURISDICTION, PRACTICE AND PROCEDURE — Judgment and Punishment — Sentence — Burglary — Aggravated burglary in company — Theft — Where planning was rudimentary — Where the offender has reasonable prospects of rehabilitation — Where the offender is in breach of good behaviour orders — Where intensive corrections order is inappropriate.

Cases Cited:

Dawson v The Queen [2019] ACTCA 9

R v UG [2018] ACTCA 64

Sampson v The Queen [2018] ACTCA 67

Schwalm v The Queen [2019] ACTCA 20

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) ss 19, 33, 35

Criminal Code 2002 (ACT) ss 308, 311, 312(a), 321

Representation:

Counsel

L Sutton (Crown)

S McLaughlin (Offender)

Decision:

See [49]–[55].

Murrell CJ

1 The offender is before the Court to be sentenced for the following offences:

• (a) On 16 January 2018, burglary of the United Service Station at Fyshwick (contrary to s 311 of the Criminal Code 2002 (ACT) ( Criminal Code)). The maximum penalty is 14 years' imprisonment and/or a fine.

• (b) On 16 January 2018, theft of tobacco products to the value of $5,486.60 (contrary to s 308 of the Criminal Code). The maximum penalty is 10 years' imprisonment and/or a fine.

• (c) On 8 December 2018, aggravated burglary of the BWS Liquor Store in Calwell (the aggravating feature being in company, contrary to s 312(a) of the Criminal Code). The maximum penalty is 20 years' imprisonment and/or a fine.

2 In relation to the third offence, I am asked to take into account the additional offence of minor theft committed on 18 October 2018 (contrary to s 321 of the Criminal Code). The maximum penalty is six months' imprisonment and/or a fine.

3 I am also asked to deal with the offender for the breach of good behaviour orders that are associated with suspended sentences that I imposed in 2016.

4 In relation to the three principal offences, the offender pleaded guilty on 8 April 2019 at the sixth mention in the Magistrates Court. In relation to the minor theft charge, he also pleaded guilty on that day, which was the fifth mention date for that matter. I accept that the evidence supporting the three offences was strong. Nevertheless, having regard to the utilitarian value of the pleas, I consider that the appropriate discount under s 35 of the Crimes (Sentencing) Act 2005 (ACT) ( Sentencing Act) is 25 per cent.

5 The offender has been in custody since his arrest on 8 December 2018 and the sentences that I impose shall start from that date.

Facts — 16 January 2018 offences

6 At about 10:00 PM on Monday, 15 January 2018, the managing director of the United Service Station at Fyshwick secured the premises after the day's trading and left the location.

7 At 4:43 AM on 16 January, the offender approached the front door of the premises carrying a steel pole. He was wearing a black hooded jumper, shorts, and socks over his hands. He used the pole to punch six holes in the glass front door. He then kicked at the door until the glass panel shattered and fell inwards. In the process, the offender injured himself and began to bleed.

8 The offender entered the store, piled numerous packets of cigarettes into a tub that he found inside the store, and then ran from the store carrying the tub. A minute later, he returned and loaded further packets of cigarettes into a plastic bag. As he was leaving, he picked up a milk crate containing further items belonging to the store. In total, 214 packets of cigarettes were stolen. The combined value was $5,486.60.

9 At the scene, police located blood that was DNA matched to the offender.

10 Pursuant to s 19 of the Sentencing Act, the victim is seeking a reparation order for $5,486.60.

Facts — 18 October 2018 offence

11 At about 7:30 PM on 18 October 2018, the offender filled a car with fuel to the value of $50 at the Coles Express Service Station in Curtin. He drove away without paying.

12 CCTV footage showed that the person who drove away had a distinctive tattoo and revealed other more generic features of the person's appearance. By means of the tattoo and other features, the offender was identified as the culprit.

Facts — 8 December 2018 offence

13 On Saturday, 8 December 2018, the Calwell Shopping Centre was closed to the public from 10:00 PM.

14 At about 10:30 PM, the offender and another man approached the loading dock at the rear of the Centre. They went to a door that led into the Centre but found that it was locked. They walked away.

15 At about 11:15 PM, they approached the locked glass sliding doors at the main entrance to the Centre. They used their body weight to force the doors to open sufficiently for them to gain entry. At 11:17 PM, they repeatedly slammed their bodies against the roller doors of the BWS Liquor Store within the Centre, causing large dents to the doors. The offender then used a hammer to smash two of the store's glass windows. He entered the store through one of the windows and forced two till sets out of their settings. He seized both tills and left the store.

16 The driver of a delivery vehicle located in the loading dock area and another witness (who worked at the Centre and was still present after the close of business) approached the offender. The offender threatened the delivery driver that he would “smash (his) head in” and threatened the other witness that he would “come after you, too”.

17 The police had been alerted by the witnesses and arrived at about 11:26 PM to see the offender running from the Centre. They told the offender to stop but he continued to run. The police chased and caught him. Eventually, the offender was subdued.

18 Shortly thereafter, the police located the two tills and hammer by the roadside. The tills were locked. They were returned to BWS Calwell in an undamaged condition.

19 The co-offender has not been identified.

Breach offences

20 On 19 October 2016, I sentenced the offender for two offences that had been committed in July 2015 (aggravated burglary and theft), and re-sentenced him for 15 offences that had been committed in 2009 and 2011. In relation to eight offences of dishonesty, he received a term of imprisonment that was wholly or partly suspended from 22 February 2017. The suspended sentences were accumulated so that an effective period of two years' imprisonment was suspended upon the offender entering two-year good behaviour orders.

21 The good behaviour orders were due to expire on 21 February 2019. Therefore, the offender was subject to the good behaviour orders when each of the three offences in question were committed, i.e. he was in the community on conditional liberty.

22 The outstanding suspended terms of imprisonment are set out in the schedule to the Crown's written submissions filed in these proceedings. The outstanding part, depending upon the offence in question, ranges from three months (for burglary) to 20 months (for aggravated burglary). As to those breach offences, the relevant facts are set out in the sentencing remarks that are included in Exhibit 1.

Objective seriousness

January 2018 offences

23 The offender utilised a steel pole to cause damage in the course of a break in. He stole items of significant value. On the other hand, the offences occurred at commercial premises and were committed after hours when no one was present, and, because of the nature of the premises, it would have been apparent to the offender that no one was present. Planning was rudimentary (e.g. the offender was injured) and the stolen property was of no sentimental or personal value.

December 2018 offence

24 The offender showed some persistence in relation to gaining entry to the Centre and the BWS store and caused damage in doing so. He possessed an implement (a hammer) as a tool (as opposed to a weapon) to aid the break-in. Significantly, he threatened two witnesses: the delivery driver and the other witness. I accept the Crown submission that the aggravating feature of being in company was a matter of some practical significance in that there were, in fact, persons who were present at the premises and who were confronted by the offender. The fact that he was in company meant that the threats that he delivered may have been perceived to be of more serious gravamen.

25 On the other hand, the aggravating feature was that the offender was in the company of one person, not multiple persons, and the offence concerned commercial premises which were not open to the public at the time. Additionally, the break-in method was unsophisticated and the offender made no particular attempt to disguise himself; there was very limited planning.

October 2018 offence

26 The additional offence is a very minor matter. However, it does demonstrate dishonesty on a completely separate occasion.

Subjective factors

27 The offender was 24 or 25 years old at the time of the new offences.

28 This is the third time that the offender has come before me to be sentenced for offences of this type. Indeed, I have sentenced the offender for all of the significant matters on his adult criminal history: in October 2014, in October 2016, and now.

29 In October 2014, the offender received sentences that saw him serve four months in fulltime imprisonment, following which his sentences were suspended. In July 2015, he committed offences that brought him back...