R v McDowall

[2020] ACTSC 184

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v McDowall

Citation:

[2020] ACTSC 184

Hearing Date:

8 July 2020

DecisionDate:

8 July 2020

Before:

Elkaim J

Decision:

See [19]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –burglary – theft – Intensive Correction Order – reparation orders

Legislation Cited:

Criminal Code 2002 (ACT) ss 45, 308, 311
Crimes (Sentence Administration) Act 2005 (ACT) s 42
Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 19(1), 33

Cases Cited:

R v CA(No 2) [2016] ACTSC 371; 316 FLR 49

Parties:

The Queen (Crown)

Stephen Scott McDowall (Offender)

Representation:

Counsel

M Lucero (Crown)

P Bevan (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Bevan & Co Lawyers (Offender)

File Number:

SCC 286 of 2019

ELKAIM J:

1. On 25 May 2020 the offender pleaded guilty to three counts in an indictment dated the same day. The three offences and their maximum penalties are as follows:

(a)One count of being knowingly concerned with burglary (SCCAN81/2020), contrary to s 311 of the Criminal Code 2002 (ACT) by virtue of s 45 of the Criminal Code. The maximum penalty is 14 years’ imprisonment, a fine of $210,000 or both; and

(b)Two counts of being knowingly concerned with theft (SCCAN82/2020; SCCAN83/2020), contrary to s 308 of the Criminal Code by virtue of s 45 of the Criminal Code. The maximum penalty is 10 years’ imprisonment, a fine of $150,000 or both.

1. The offender was originally charged with the substantive offences of burglary and theft. However, his pleas of guilty were to a fresh indictment of being knowingly concerned in these offences.

1. On 14 April 2017 a residence in Mawson in the Australian Capital Territory was broken into. The first theft count relates to goods stolen from a resident of the house. The second count relates to the property of that resident’s daughter who was visiting at the time.

1. A lot of the property stolen from the resident was jewellery which had a collective value of about $32,000. The property taken from the other victim was more diverse but included a passport and an amount of cash. The total value was about $3,300.

1. As one would expect, and as stated in the Victim Impact Statement by the resident, the offence was very upsetting to the victim who “suffered constant anxiety and severe trauma” when she discovered that her home had been broken into. She also mourns the loss of “personal expensive and sentimental items” and has found coming back home at night a difficult experience.

1. In my view the offences, which fortunately did not involve any personal threat to the occupants of the residence, should be viewed as just below medium objective severity.

1. The offender was born in 1966.  He was brought up in the Mormon faith and has spent a good deal of time in the United States of America. He is one of 11 siblings. He keeps in touch with them. The offender has 3 children, all of whom are now adults.

1. The offender completed high school in America. He obtained qualifications as a panel beater and spray painter in Australia.

1. The offender has clearly had a major problem with drugs and alcohol and they have probably been responsible for a lot of his offending which has occurred in the ACT, New South Wales and Victoria. He has an extensive record.

1. The offender was referred for an Intensive Correction Order (ICO) assessment. He was, perhaps surprisingly, found suitable for such an order. The Crown pointed out that while an ICO might properly address the requirements of sentencing there were two issues that needed to be factored into the decision to grant an ICO. These were the offender’s breaches of bail and lack of stable accommodation.

1. I thought an ICO was appropriate but joined with the Crown in sharing the above concerns. For that reason I allowed the offender’s legal representatives some time to see if the issues could be addressed.

1. The offender called Ms Llyana Kaneff to give evidence. She has known him for a long time and has been in a relationship with him from time to time. She lives in Kambah in public housing and she has said that she would be prepared to allow the offender to stay with her. Ms Kaneff was a straightforward witness who gave me the impression that she would not permit the offender to misbehave at her home. I think she addressed the concerns that I shared with the Crown about stable housing. As far as the bail breaches are concerned, under an ICO if the offender contravenes the directions of ACT Corrective Services then there will be automatic consequences.  

1. In reaching the decision about an ICO I have specifically taken into account the principles and objects of sentencing as set out in ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT) and also the considerations referred to in s 33.

1. I also think it appropriate for there to be a reparation order in the sum of $20,320.00 in favour of Ms Elenore Lawson and $3,118.92 in favour of Ms Belinda Lawson. I decline to make a reparation order of $10,854.00 in favour of the home and contents insurer. I agree with the decision of Murrell CJ in R v CA(No 2) [2016] ACTSC 371; 316 FLR 49 as to the entitlement of an insurer to a reparation order pursuant to s 19(1) of the above Act.

1. The Crown has effectively agreed with the offender about the need for the principles of totality to be recognised. All of the offences arise from one enterprise so that it is appropriate for there to be one effective sentence.

1. I agree with the Crown about the need for specific deterrence, in particular taking into account this offender’s criminal history. The main reason that I think an ICO is appropriate is to encourage the prospects for rehabilitation which seem to have re‑emerged in the offender’s favour. I note the offences occurred some time ago and there is some mystery as to why they were not previously dealt with.

1. The offender has been in custody for 85 days. An ICO cannot be backdated and, on one view, the offender receives no credit for the time in custody. I however think that in setting the length of the sentence to be served by an ICO I can take into account the fact that there has been a substantial period already served in custody.

1. It is also necessary for me to take into account the pleas of guilty which occurred on the first day of trial. I think a discount of about 15% is appropriate.

1. I make the following orders:

(a)For the offence of being knowingly concerned with burglary (SCCAN81/2020), the offender is sentenced to 20 months’ imprisonment (reduced from 24 months) to commence on 8 July 2020 and end on 7 March 2022.

(b)For the offence of being knowingly concerned with theft (SCCAN82/2020), the offender is sentenced to 12 months’ imprisonment (reduced from 15 months) to commence on 8 July 2020 and end on 7 July 2021.

(c)For the offence of being knowingly concerned with theft (SCCAN83/2020), the offender is sentenced to 6 months’ imprisonment (reduced from 8 months) to commence on 8 July 2020 and end on 7 January 2021.

(d)The above sentences are to be served by way of an Intensive Correction Order. The offender is to accept the supervision of ACT Corrective Services and comply with the core conditions specified in s 42 of the Crimes (Sentence Administration) Act 2005 (ACT).

(e)A reparation order in the sum of $20,320.00 is made in favour of Ms Elenore Lawson, to be paid within 24 months.

(f)A reparation order in the sum of $3,118.92 is made in favour of Ms Belinda Lawson, to be paid within 24 months.

I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: 16 October 2020

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Amendments

16 October 2020          Coversheet under heading Legislation Cited

Replace “Criminal Code 2020 (ACT)” with “Criminal Code 2002 (ACT)”

Replace “Crimes (Sentencing) Act 2002 (ACT)” with “Crimes (Sentencing) Act 2005 (ACT)”

Paragraph [13]:

Replace “Crimes (Sentencing) Act 2002 (ACT)” with “Crimes (Sentencing) Act 2005 (ACT)”