SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: R v Ware

Citation: [2016] ACTSC 264

Hearing Date(s): 29 October 2015, 12 February, 24 March, 4 April, 5 July and 7 September 2016

Decision Date: 7 September 2016

Before: Refshauge J

Decision: 1. The Good Behaviour Order made on 11 July 2013 be cancelled.

2. The conviction for theft on 10 March 2014 be confirmed.

3. Joshua Ware be sentenced to nine months imprisonment to commence from 22 December 2015.

4. The conviction for damaging property over $1000 in value on 10 March 2013 be confirmed.

5. Joshua Ware be sentenced to six months imprisonment to commence on 22 May 2016, cumulative as to two months on the sentence for theft on 10 March 2013.

6. Joshua Ware be convicted of theft between 16 and 19 February 2013.

7. Joshua Ware be sentenced to six months imprisonment to commence on 22 June 2016, cumulative as to one month on the sentence for damaging property over $1000 in value on 10 March 2013.

8. Joshua Ware be convicted of theft between 10 and 13 March 2013.

9. Joshua Ware be sentenced to nine months imprisonment to commence on 22 May 2016, cumulative as to two months on the sentence for theft between 16 and 19 February 2013.

10. Joshua Ware be convicted of theft between 10 and 13 March 2013.

11. Joshua Ware be sentenced to six months imprisonment to commence on 22 September 2016, cumulative as to one month on the earlier sentence of theft between 10 and 13 March 2013.

12. Joshua Ware be convicted of theft between 10 and 13 March 2013.

13. Joshua Ware be sentenced to nine months imprisonment to commence on 22 September 2016, cumulative as to three months on the sentence for the second theft between 10 and 13 March 2013.

14. Joshua Ware be convicted of theft on 17 March 2013.

15. Joshua Ware be sentenced to six month imprisonment to commence on 22 January 2017, cumulative as to one month on the third sentence for theft on 10 to 13 March 2013.

16. Joshua Ware be convicted of damaging property over $1000 in value between 5 and 8 April 2013.

17. Joshua Ware be sentenced to six months imprisonment to commence on 22 February 2017, cumulative as to one month on the sentence for theft on 17 March 2013.

18. Joshua Ware be convicted of damaging property over $1000 in value on 5 to 8 April 2013.

19. Joshua Ware be sentenced to six months imprisonment to commence on 22 March 2017, cumulative as to one month on the earlier sentence for damaging property over $1000 in value on 5 to 8 April 2013.

20. Joshua Ware be convicted of destroy/damaging property not exceeding $5000 between 16 and 19 February 2013.

21. Joshua Ware be sentenced to six months imprisonment to commence on 22 April 2017, cumulative as to one month on the second sentence for damaging property over $1000 in value on 5 to 8 April 2013.

22. Joshua Ware be convicted of destroy/damaging property not exceeding $5000 between 10 and 13 March 2013.

23. Joshua Ware be sentenced to four months imprisonment to commence on 22 July 2017, cumulative as to one month on the sentence for destroy/damaging property not exceeding $5000 between 16 and 19 February 2013.

24. Joshua Ware be convicted of destroy/damaging property not exceeding $5000 between 10 and 13 March 2013.

25. Joshua Ware be sentenced to six months imprisonment to commence on 22 June 2017, cumulative as to one month on the earlier sentence destroy/damaging property not exceeding $5000 between 10 and 13 March 2013.

26. Joshua Ware be convicted of destroy/damaging property

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not exceeding $5000 on 12 March 2013.

27. Joshua Ware be sentenced to six months imprisonment to commence on 22 July 2017, cumulative as to one month on the second sentence for destroy/damaging property not exceeding $5000 on 10 to 13 March 2013.

28. Joshua Ware be convicted of unlawful possession of property reasonably suspected of being stolen on 17 April 2013.

29. Joshua Ware be sentenced to two months imprisonment to commence on 22 November 2017, wholly cumulative on the sentence for destroy/damaging property not exceeding $5000 on 12 March 2013.

30. Joshua Ware be convicted of possessing a prohibited substance, namely cannabis, on 17 April 2013.

31. Joshua Ware be sentenced to two months imprisonment to commence on 22 December 2017, cumulative as to one month on the sentence for unlawfully possessing property reasonably suspected of being stolen on 17 April 2013.

32. Joshua Ware be convicted of burglary – intent to steal on 6 to 8 July 2014.

33. Joshua Ware be sentenced to 18 months imprisonment to commence on 22 February 2017, cumulative as to six months on the sentence for possessing a prohibited substance, namely cannabis, on 17 April 2013.

34. Joshua Ware be convicted of dishonestly riding in a motor vehicle without the owner’s consent between 6 and 8 July 2014.

35. Joshua Ware be sentenced to 12 months imprisonment to commence on 22 November 2017, cumulative as to three months on the sentence for burglary – intent to steal between 6 and 8 July 2014.

36. Joshua Ware be convicted of theft between 6 and 8 July 2014.

37. Joshua Ware be sentenced to 12 imprisonment to commence on 22 August 2017, wholly concurrent on the sentence for burglary – intent to steal between 6 and 8 July 2014.

38. Joshua Ware be convicted of burglary – intent to steal between 28 and 29 June 2014.

39. Joshua Ware be sentenced to 18 months imprisonment to commence on 22 November 2017, cumulative as to six months on the sentence for dishonestly riding in a motor vehicle without the owner’s consent between 6 and 8 July

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2014.

40. Joshua Ware be convicted of theft between 28 and 29 June 2014.

41. Joshua Ware be sentenced to 12 months imprisonment to commence on 22 July 2018, cumulative as to two months on the sentence for burglary – intent to steal committed on 28 and 29 June 2014.

42. Joshua Ware be convicted of dishonestly riding a motor vehicle without the owner’s consent between 7 and 8 July 2014.

43. Joshua Ware be sentenced to 12 months imprisonment to commence on 22 October 2018, cumulative as to two months on the sentence for theft between 28 and 29 June 2014.

44. Joshua Ware be convicted of attempted theft between 15 and 16 July 2014.

45. Joshua Ware be sentenced to 18 months imprisonment to commence on 22 October 2018, cumulative as to six months on the sentence for dishonestly riding a motor vehicle without the owner’s consent between 7 and 8 July 2014.

46. Joshua Ware be convicted of burglary – intent to steal between 15 and 16 July 2014.

47. Joshua Ware be sentenced to 12 months imprisonment to commence on 22 May 2019, cumulative as to one month on the sentence for attempted theft between 15 and 16 July 2014.

48. Joshua Ware be convicted of theft between 11 and 12 August 2014.

49. Joshua Ware be sentenced to 18 months imprisonment to commence on 22 May 2019, cumulative as to six months on the sentence for burglary – intent to steal between 15 and 16 July 2014.

50. Joshua Ware be convicted of burglary – intent to steal between 11 and 12 August 2014.

51. Joshua Ware be sentenced to 12 months imprisonment to commence on 22 December 2019, cumulative as to one month on the sentence for theft committed between 11 and 12 August 2014.

52. The sentence is suspended from 8 September 2016 for five years.

53. Joshua Ware is required to sign an undertaking to comply

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with the offender’s Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of five years with the following conditions:

(a) a probation condition that he be under the supervision of the Director-General or her delegate and obey all reasonable directions that the person supervising him for a period of three years or such lesser period as the person supervising him considers appropriate;

(b) that he perform 250 hours of community service work within two years from 7 September 2016;

(c) that he attend such treatment or counselling for drug addiction and mental impairment as the person supervising him may reasonably direct;

54. The order for payment of $7,032 made on 11 July 2013 be confirmed and the period by which payment is to be made be extended to 7 September 2020.

55. Joshua Ware be required to pay the sum of $4,403 for loss and expenses of the following persons in the following sum on or before 7 September 2022 to be paid out by the Registrar to those persons at addresses provided by the Director of Public Prosecutions:

(a) Ms Imogen Taylor $548

(b) Ms Elizabeth Hamston $205

(c) Mr Karmal Chowdhrey $3000

(d) Mr Nicholas Love $650

Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sentencing – breach of Good Behaviour Order – consideration of breach – subjective circumstances – multiple offences – cancellation of Good Behaviour Order – cumulative sentence – suspended sentence – new Good Behaviour Order – community service work direction – reparation to victims

Legislation Cited: Crimes Act 1900 (ACT), ss 116(3), Crimes (Sentencing) Act 2005 (ACT), ss 7, 19, 33, 63(1)Crimes (Sentence Administration) Act 2005 (ACT), ss 108, 108(3)(a)Drugs of Dependence Act 1989 (ACT), ss 171, 171(1)(b)Magistrates Court Act 1930 (ACT), s 90(4)Supreme Court Act 1933 (ACT), Pt 8

Criminal Code 2002 (ACT), ss 308, 311, 318(2), 403

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Cases Cited: Burge v McCarron [2011] ACTSC 87 Halden (1983) 9 A Crim R 30Hunter v The Queen [2011] NSWCCA 141 Lowe v Visser [1988] Tas R 17Mill v The Queen (1988) 166 CLR 59 Muldrock v The Queen (2011) 244 CLR 120 Pearce v The Queen (1998) 194 CLR 610Rees v The Queen [2012] ACTCA 6R v Elphick (No 2) [2015] ACTSC 23R v Hawkins [2015] ACTSC 333 R v Hayes [1984] 1 NSWLR 740R v Kristiansen [2015] ACTSC 159 R v McGrail [2016] ACTSC 142 R v Spencer [2014] ACTSC 364 R v Ware (Unreported, ACT Supreme Court, Higgins CJ, 11 July 2013)R v Wilkins [2015] ACTSC 145 Saga v Reid [2010] ACTSC 59 Simonds v The Queen [2013] ACTCA 13 Taylor v Bowden [2009] ACTSC 13 Veen v The Queen (No 2) (1988) 164 CLR 465 Weininger v The Queen (2003) 212 CLR 629

Parties: The Queen (Crown)

Joshua Ware (Defendant)

Representation: CounselMr D Sahu-Khan (Crown)

Ms K Bolas (Defendant)

SolicitorsACT Director of Public Prosecutions (Crown)

Kim Bolas Criminal Law (Defendant)

File Number(s): SCC 60 of 2013; SCC 130 of 2014; SCC 131 of 2014

SCC 218 of 2014; SCC 284 of 2014

REFSHAUGE J:

1. In Saga v Reid [2010] ACTSC 59 at [89], I said:

In my view, it can be accepted that drug addiction is such that it can take a number of failed attempts at rehabilitation before it is successful. It is hard work and there is no short cut or quick fix. It can take some time, and some failures, before an offender addict manages to break through the barriers to achieve a more effective rehabilitation. The courts cannot, of course, sit back and allow attempts to be made without end. By the same token, past failures do not automatically deny an offender the opportunity for a further attempt. Ordinarily, there would have to be some rational basis for permitting it.

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2. Appearing before me for sentence is Joshua Ware who has committed a large number of dishonesty and related offences, the commission of which also breaches a Good Behaviour Order made by Higgins CJ.

3. The evidence suggests that Mr Ware has been heavily addicted to illicit drugs and that this is the principal cause of his criminality. Nevertheless, he sought a further opportunity to address his drug addiction and attended the day program at Arcadia House for a period.

4. The offences with which Mr Ware has now been charged were committed in three series. The first series relates to incidents in early 2013, when he was charged with one count of theft between 16 and 19 February 2013, three counts of theft between 10 and 13 March 2013 and one count of theft on 17 March 2013. He was also charged with two counts of damaging property between 5 and 7 April 2013. He has been committed to this Court for sentence on these charges.

5. Associated with those charges are further charges that have been transferred under s 90(4) of the Magistrates Court Act 1930 (ACT), to be dealt with under Pt 8 of the Supreme Court Act 1933 (ACT). These are five offences of damaging property on the three occasions of theft, possession of cannabis, and possession of goods reasonably expected to have been stolen, both offences committed on 17 April 2013.

6. The second series are offences of burglary, theft and dishonesty driving a motor vehicle without the consent of the owner. These offences occurred between 6  and 8 July 2014. He has also been committed for sentence on these offences.

7. The third series of offences are constituted by three burglaries and thefts on 28 and 29 June 2014, 15 and 16 July 2014 and 11 and 12 August 2014 together with an offence of dishonestly driving a motorcycle without the consent of the owner between 7 and 8 July 2014. Mr Ware has been committed for sentence on these offences.

8. Burglary is an offence against s 311 of the Criminal Code 2002 (ACT), which provides for a maximum penalty of 1400 penalty units (that is, at the time, a fine of $196,000) and imprisonment for 14 years.

9. Theft is an offence against s 308 of the Criminal Code, which provides for a maximum penalty of 1000 penalty units (that is, for the offences committed in 2013, a fine of $110,000 and for the offences committed in 2014, a fine of $140,000) and imprisonment for 10 years.

10. Damaging property is an offence prohibited by s 403 of the Criminal Code for which the maximum penalty is specified to be 1000 penalty units (that is, at the time, a fine of $110,000) and imprisonment for 10 years.

11. Dishonestly driving or riding in a motor vehicle without the owner’s consent is an offence contrary to s 318(2) of the Criminal Code, which attracts a maximum penalty of 500 penalty units (that is a fine of $70,000) and imprisonment for five years.

12. Damaging property where the damage is valued at less than $5000 is an offence against s 116(3) of the Crimes Act 1900 (ACT), which provides a maximum penalty of 50 penalty units (that is, at the time, a fine of $5000) and imprisonment for two years.

13. Possession of cannabis is an offence against s 171(1)(b) of the Drugs of Dependence Act 1989 (ACT), which provides for a maximum penalty of 50 penalty units (that is, at the time, a fine of $5500) and two years imprisonment.

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14. The maximum penalties set out for these offences are an important indicator by the legislature of the yardstick by which to assess the relative seriousness of the offences. See Muldrock v The Queen (2011) 244 CLR 120 at 133 [31].

15. Nevertheless, the particular facts of the offences and the subjective circumstances of the offender are important in determining the appropriate sentence to be imposed.

The facts

First series of offences

16. Sometime between 17 and 18 February 2013, Mr Ware, with a co-accused, broke into a vehicle parked in an underground car park in Macquarie, ACT. They scraped around the windows, smashed the rear passenger triangle window and stole a number of items, including a TomTom GPS, approximately 20 CDs in a black leather CD case with a cardboard “Malibu Drinks” picture glued on the outside, chargers for a mobile phone, GPS and Bluetooth, and a black “Air Key” garage remote for the garage roller doors to the underground car park. Repairs to the vehicle cost $438 and replacement of the garage remote cost $110.

17. Between 10 and 13 March 2013, Mr Ware entered another underground car park, this time in a townhouse complex in O’Connor, ACT. He smashed the rear passenger side window of a vehicle and stole a silver road case containing eight different brands of electric guitar pedals, a black Xbox gaming console, and a black backpack containing a Digitech vocal processor to a total value of $4800.

18. Around the same time, he smashed the rear passenger side quarter window of another motor vehicle in the same car park and stole a black and chrome coloured Apple iPod and a 12 vault “power cam” inverter to a total value of $80. The repairs to the window cost $125.

19. He then smashed the rear window of a third vehicle and cut away a baby seat from the back seat relocating it to the front seat.

20. He then stole a Soundstream subwoofer speaker, silver Soundstream amplifier, a black Phoenix amplifier, an Apple iPod and a pair of Carrera sunglasses, which together were valued at $3000.

21. On 17 March 2013, Mr Ware smashed both passenger side windows of a motor vehicle parked in the car park at Northgate Gardens and stole a pair of Ray Ban sunglasses in a beige coloured Tommy Hilfiger hard case, a packet of Marlboro Red 20 Cigarettes containing approximately three or four cigarettes, a glossy black puffy designed North Face brand jacket, a key set with three to four keys, a set of black Winter leather gloves, a Canon PowerShot camera and a Supa Cheap Auto branded tool box containing a hammer, screwdriver and socket set, which together were worth approximately $500. The repairs to the vehicle were valued at $3084.51.

22. On 4 April 2013, police executed a search warrant at premises of the co-accused and located a number of the items stolen from the motor vehicles.

23. Police inquiries led the investigation to focus on Mr Ware. On 17 April 2013, police executed a search warrant on Mr Ware’s premises. During the execution of the search warrant Mr Ware said that he knew that his co-accused broke into cars and houses and that he had committed the offences with another person. He said that when they moved out of the co-accused’s premises, where he and his partner used to live, they

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took a lot of property. He was apparently suggesting that this could have inadvertently included property stolen by the co-accused. Police found a number of items of property that had been stolen from the above premises.

24. Police also seized a white plastic bag containing green vegetable matter suspected of being cannabis, a heart shaped container with cannabis seeds and two clear capsules containing green vegetable matter. The items were subsequently tested by the ACT Government Analytical Laboratory and it was determined that the green vegetable matter was 139.5 grams of cannabis, the seeds were 1.4 grams of cannabis seeds and the green vegetable matter inside the capsules was 0.9 grams of cannabis.

25. Police also identified and seized a white Samsung Galaxy Tablet reported stolen during a shoplifting incident in a City retail premises and a Shoei brand black and blue motorcycle helmet, which Mr Ware admitted he knew was stolen.

26. Between 6 and 7 April 2013, Mr Ware kicked and smashed the driver’s side front quarter window of a motor vehicle parked in the underground car park at 17 Majura Avenue, Dickson.

27. Between 6 and 7 April 2013, Mr Ware also kicked and smashed the driver’s side window of a motor vehicle parked in the same car park.

28. As a result of these events, he was charged with five theft offences and two indictable offences of damaging property, five summary offences of damaging property, an offence of possession of cannabis and an offence of possession of goods reasonably expected to have been stolen.

Second series of offences

29. Between 6 and 7 July 2014, Mr Ware cut a hole in the flyscreen of the rear door in residential premises in Ainslie. He unlocked the door, entered and removed a number of items, including the keys to a motor vehicle which he later dishonestly drove from the premises without the owner’s consent.

30. The property he took included a leather wallet and contents, a Go Pro video camera and accessories, a Samsonite laptop bag, a Dell laptop, a silver Apple iPad, a Logitech ultra thin keyboard, iPad accessories, stationery, two USB drives, a hand bag and another wallet, sunglasses, an Oroton baby bag with baby clothes, a pram, a baby carrier, gloves, umbrella and about 20 CDs.

31. On 4 September 2014, police attended the residence of Mr Ware and interviewed him. After being cautioned he identified a number of items as being stolen items and admitted that he had entered the residential premises, had stolen the items and had driven the car away.

32. As a result of these events, Mr Ware was charged with offences of burglary, theft and dishonestly driving a motor vehicle without the owner’s consent.

Third series of offences

33. Sometime between 7:00 am on 28 June 2014 and 10:00 pm on 29 June 2014, Mr Ware entered a storage unit in a garage located under a residential unit block in Dickson. He stole a Macpack hiking pack valued at $500, a Radical long-distance walking trailer, valued at $978, and a Husqvarna backpack blower valued at $700.

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34. Sometime between 6:45 pm on 7 July and 8:00 am on 8 July 2014, Mr Ware cut a chain locking a Kawasaki motorcycle to a post at the front of a carport in a unit in Downer and drove the motorcycle away to the toilet block at Downer Village, where it was later found by a Territory employee. The motorcycle had damage to the ignition which cost $813.65 to repair.

35. In the early hours of the morning of 16 July 2014, Mr Ware and a co-accused went to a commercial premises in Mitchell, ACT and one of them entered the yard of the premises where they attempted to steal four Stihl brand chainsaws and assorted chainsaw blades and chains, but were disturbed before they could get the items into the car in which they had driven to the premises.

36. Mr Ware returned to the premises sometime between 5:00 pm on 11 August 2014 and 7:30 am on 12 August 2014. He cut a hole in the fence and entered the yard of the premises. He stole four Stihl chainsaws which had a total value of $2166.

37. On 4 September 2014, police attended Mr Ware’s residence and located items that had been stolen from the commercial premises, as well as an item stolen from the Dickson residence on 28 or 29 June 2014.

38. As a result of these events, Mr Ware was charged with three offences of burglary, three offences of theft and one offence of dishonestly riding in a motor vehicle without the owner’s consent.

Earlier offences

39. As noted above (at [2]), some of these offences breached a Good Behaviour Order made by Higgins CJ on 11 July 2013, when his Honour sentenced him for offences of theft, damaging property, and attempting to escape from lawful custody.

40. These offences arose out of events which began on 10 March 2013, when Mr Ware entered an underground car park under a block of apartments in Dickson. He broke the rear quarter window and the driver’s side window. He also damaged the external driver’s side lock and the paint work around the damaged window.

41. Mr Ware stole some clothing, electronic equipment, a wallet, a pair of sunglasses, a set of keys and a garage remote control device. The property stolen was valued at $2835.

42. In their examination of the car, police identified Mr Ware’s fingerprints and on 17 April 2013 executed a search warrant at his premises. Police found some of the stolen property.

43. Mr Ware was then arrested. As he and the police officer who arrested him were walking out of the house, Mr Ware swung his right arm and broke free. He ran away, but police pursued him and caught him a short distance away.

44. He was placed in handcuffs and taken to City Police Station.

45. Ultimately, on his first appearance in the Magistrates Court, he pleaded guilty to each of the offences and was committed for sentence to this Court. He adhered to his plea of guilty and was sentenced on 11 July 2013.

46. Higgins CJ made a three year Good Behaviour Order for the offences of theft and damaging property. See R v Ware (Unreported, ACT Supreme Court, Higgins CJ, 11 July 2013). The Good Behaviour Order included a probation condition. His Honour also made a compensation order of $7032.

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The proceedings

47. Some of the further offences for which I have to sentence Mr Ware were discovered when police executed a search warrant at his premises on 17 April 2013, the search of which revealed the offences for which Higgins CJ sentenced Mr Ware. It is not clear why all those offences were not dealt with at the same time. This is relevant to sentencing: Mill v The Queen (1988) 166 CLR 59 at 62-3.

48. In any event, Mr Ware appeared in the Magistrates Court for the first series of offences, including the transferred offences on 1 October 2013. After six adjournments, the reasons for which are not explained in the material before this Court, he pleaded not guilty on 22 January 2014.

49. The proceedings were again adjourned on five further occasions, but, on 12 June 2014, Mr Ware pleaded guilty to each of the offences. The next day, he was committed for sentence to this Court and the summary charges were transferred as noted above (at [5]).

50. It appears that Mr Ware was on bail for all these offences at the time.

51. Mr Ware then appeared in the Magistrates Court on 5 September 2014 for the second series of offences. He was remanded in custody. On 17 September 2014, he pleaded guilty to the second series of offences and was committed to this Court for sentence. He remained in custody until bail was granted by this Court on 10 October 2014 for him to admit himself to the drug rehabilitation program at Canberra Recovery Services (CRS) Program.

52. Mr Ware then appeared in the Magistrates Court on 17 November 2014, charged with the third series of offences. He was again remanded in custody terminating his attendance at the CRS program. On 2 December 2014 he pleaded guilty to the charges and was committed for sentence to this Court. He remained in custody until he was granted bail on 20 February 2015 to enable his admission to the drug and rehabilitation program at the Karralika Therapeutic Community. I have described that program in R v Kristiansen [2015] ACTSC 159 at [12]-[14].

53. By this time, the three sets of offences were progressing together. The proceedings were adjourned in this Court from time to time to permit Mr Ware to complete the residential part of the Karralika Program and then to progress to the next stage of the program, the Nexus Program, an advanced, transition to the community, part of the Karralika Program, which I describe below (at [86]-[87]).

54. On 3 November 2015, Mr Ware was remanded in custody as a result of a breach of his bail. He was, however, granted bail again on 12 November 2015 with strict conditions, including him making and progressing an application for admission to the residential drug rehabilitation program at CRS.

The offences

55. I have set out the maximum penalties for the offences above (at [8]-[13]). The offences of burglary, theft and damaging property are the most serious offences and are serious offences in themselves.

56. Although the burglary in Ainslie is the most serious of the burglary offences because it was committed on residential premises (Simonds v The Queen [2013] ACTCA 13 at [54]), all the burglary offences were relatively unremarkable. They all involved some

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damage, though, in a number of cases, the damage caused was charged as a separate offence.

57. There were no other aggravating features, such as a high level of planning, repeat burglary of the same premises, the presence of occupants or threats of violence.

58. Nevertheless, burglaries are serious offences and, as Street CJ pointed out in R v Hayes [1984] 1 NSWLR 740 at 742, must be dealt with by courts with a strong element of general deterrence. See R v Hawkins [2015] ACTSC 333 at [48]-[51].

59. The theft offences were also serious. The amount of property is a significant indicator of seriousness: Rees v The Queen [2012] ACTCA 6. In this case, the value of the items stolen were not always available from the evidence. The property for which I did have a value was estimated to be worth $4800, $3000, $500, $80, $2178 and $2166. This total of $12 724 is, therefore, the minimum value, for it does not include the property stolen in a number of the theft offences.

60. The damaging property offences principally related to the damage done in entering cars from which Mr Ware stole property. Again, the circumstances of the commission of the offence and the value of the damage done are important factors to be taken into account in assessing the objective seriousness of the offences. See Halden (1983) 9 A Crim R 30 at 36. In this case, the values of the damage done in each case and of which evidence was given were $548, $125 and $3084.51. Again, that total of $3757.51 is a minimum value. Of course, in many cases, insurance will cover the damage done, but that has an effect on premiums payable by the whole community and the owners of the damaged property may have to pay an excess and certainly suffer inconvenience even if not actual loss.

61. The offences of dishonestly driving or riding in a motor vehicle without the owner’s consent is a serious offence also, the more so if damage is caused in the commission of the offence, which did occur in respect of the motorcycle. The value of the damage was estimated at $813.65. Again, these were otherwise relatively unremarkable versions of the offence. That, of course, does not make them less serious but is merely an indication that there were no particularly aggravating features involved.

Subjective circumstances

62. I had a number of Pre-Sentence Reports, Updated Pre-Sentence Reports and Bail Progress Reports from ACT Corrective Services, in addition to reports from the Court Alcohol and Drug Assessment Service (CADAS) and a Forensic Mental Health Report. I also had reports from various drug and alcohol rehabilitation agencies. From these reports, I can make the following findings.

Family background

63. Mr Ware was born in 1986, so he was about 27 years old when he committed the first offence and he is now approaching his 30th birthday.

64. He was the second of his parents three children and had a positive and stable childhood.

65. His parents separated when he was 17 and he seems to have had little contact with his father after that, but continued to have a caring and supportive relationship with his mother, although abuse of alcohol was a problem for her and had been a cause of

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tension between his parents. The lack of contact with his father was a cause of sadness for him as he saw his father as his “best friend”.

Schooling and Education

66. Mr Ware had difficulties at primary school, with disruptive behaviour, learning difficulties, social problems and multiple suspensions. He was diagnosed with Attention Deficit Disorder (ADHD) at age eight and prescribed treatment which he ceased of his own accord when he was 16. He continued to have problems in high school with frequent suspensions and needing special assistance for learning. He narrowly graduated from high school and continued to college, where he also received special assistance, but left half way through Year 12.

67. Mr Ware still has problems with literacy and numeracy, but has managed to complete a number of TAFE qualifications since leaving school, including security, first aid, traffic control, and obtaining his “white card”.

Employment

68. He commenced employment as a casual sales assistant when he was 17. He kept the job for about 12 months. He has been employed in other jobs, the longest period of employment being as a full-time child care assistant for three years. He has had casual labouring jobs in addition to lengthy periods of unemployment.

69. For a time, he was working as a roofer, or labourer, a position secured for him by his partner. I had no other details about it.

70. At the most recent hearing prior to sentencing, I heard that a family friend had offered Mr Ware employment with him. The friend is a bricklayer who has recently relocated to Canberra. He has a number of contracts with demand for his services high and he needs a labourer. He has no criminal record and I was satisfied that in working with him, Mr Ware is unlikely to be in a situation where he will be tempted to return to drug use.

71. This provides a good prospect for Mr Ware for, if he performs well, his friend will assist him to enter an apprenticeship which he can undertake through his business.

Relationships

72. He met his former partner in 2012, discontinuing the relationship due to some significant problems. An unstable relationship, marred by frequent conflict, domestic violence and periods of separation, it provided Mr Ware with further challenges whilst he was addressing the other issues he faced.

73. The couple have had two children, a boy and a girl. Tragically the boy died of Sudden Infant Death Syndrome at age three months. This event caused Mr Ware’s PTSD. The girl was hospitalised soon after birth and this apparently instigated Care and Protection Services to become involved and, as I understand it, she has been taken into care. Mr Ware is presently seeking to have custody of his daughter granted to him.

74. Mr Ware is currently involved in a relationship with a new partner. The couple however endured trouble earlier this year when his partner had a complicated miscarriage which required surgical management, where Mr Ware provided special post-operative care for her. Mr Ware’s current partner has strongly expressed her disapproval over his use of drugs.

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Drugs and Alcohol

75. Mr Ware commenced drinking alcohol when he was 18 years old. He drank five days a week, consuming up to a 750ml bottle of spirits a day. In mid 2012, he ceased drinking and has remained abstinent from alcohol.

76. He started using cannabis when he was 14. He gradually increased his use until he was smoking one gram of cannabis a day. He says he uses that drug to relax and has struggled to convince himself that he should be abstinent.

77. He started using amphetamines when he was 18, initially smoking or otherwise using 0.3 to 0.4 points four days a week. His tolerance grew so that by 2012, he was, for about two months, smoking 20 points (two grams) over a week, being at least a couple of points a day. He has experienced periods of abstinence, but the results of urinalysis still has shown some use.

78. Mr Ware started using ecstasy also when he was 18 and gradually increased its use until he was taking six tablets over four days a week. He reduced his consumption when he was 22 and has been abstinent since he was 25.

79. He smokes tobacco, particularly mixing it with cannabis. He has no current intention of stopping smoking tobacco.

80. Mr Ware has, since these proceedings have been on foot, been engaged in drug rehabilitation, but with some setbacks. As I pointed out in Saga v Reid at [89], this is a common feature of the difficult path to managing the pernicious addiction to drugs that is so common amongst offenders who are dependent on illicit substances.

81. Mr Ware did engage with a counsellor from The Junction Youth Health Service and, while in custody with a counsellor from the Alcohol and Drug Service of ACT Health, but his attendance was erratic.

82. In April 2014, he was admitted to the Alcohol and Drug Service Inpatient Unit to detoxify prior to admission to residential rehabilitation, but discharged himself as he said he was not “ready” and was unhappy with the no-smoking policy.

83. He then sought further assistance while in custody. On 13 October 2014, he was admitted to the CRS Program. He admitted using cannabis shortly after, however, and was discharged from the program. When he returned to Court, he was remanded in custody. Interestingly, a urinalysis on that day did not detect cannabis. He had participated in the program while there and the staff were happy with his progress.

84. In December 2014, Mr Ware was found suitable to enter the residential drug rehabilitation program at the Karralika Therapeutic Community as I have mentioned above (at [53]).

85. On 20 February 2015, he was bailed to attend that program. He progressed in that program and I received a positive report in April 2015 where his case manager described him as “progressing well” with an attitudinal shift and a greater degree of personal responsibility that he was prepared to take.

86. In August 2015, he was prepared to move to the next stage of the program, known as the Karralika Nexus Program. This is a residential after care program for men, still underpinned by the principles of a Therapeutic Community. It extends for three to six months and involves group programs and case management. Emphasis is placed on

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the achievement of the participant’s personal treatment goals and the development of skills to avoid relapse, establishing positive social relationships and practical living skills, as well as the investigation of and engagement with employment and career options. Recreational and creative activities are also incorporated as a care component of the program.

87. Assistance is also provided for a participant to pursue vocational education, volunteer placements and mental health support. It is a smoke free facility and provides tobacco interventions within smoking cessation support groups and free or subsidised nicotine replacement therapies. The program can also support applications for public housing.

88. By September 2015, Mr Ware was doing well and he was recommended for counselling with the Alcohol and Drug Service to deal with mental health issues. Urinalysis confirmed that he was drug free.

89. On 28 October 2015, however, Mr Ware, despite having appeared to have engaged with the program, was found on urinalysis to have consumed amphetamines and to be in possession of contraband and his participation in the program was terminated. He had, however, engaged with the Outreach service which Karralika provides and was eligible to receive such support for up to three months.

90. He considered, however, that he needed further, more intensive treatment and applied again for the CRS program, though it had a two to three month waiting list. This is becoming a serious problem, especially for the Courts on sentencing where persons needing residential rehabilitation cannot get a placement for months which means they either place themselves and the community at risk while awaiting a placement or, if bail is refused, serve much, if not most, of their sentence before accessing a placement.

91. Nevertheless, I remanded Mr Ware to custody again on 3 November 2015, pending a more comprehensive proposal if he were to be permitted bail pending any further residential rehabilitation.

92. On 12 November 2015, I granted him bail to be in the community pending admission to the CRS Program. I made strict conditions, including participation in Narcotics Anonymous and Alcoholics Anonymous, and support from the Canberra Men’s Centre, now Everyman. I also required him to participate in the SMART Recovery Program, a program I have described in R v McGrail [2016] ACTSC 142 at [78]-[80].

93. By February 2016, Mr Ware was still awaiting a placement at a residential rehabilitation program, but feeling that he had passed the point which he needed further residential rehabilitation. He was attending at ACT Corrective Services for supervision. That supervision was regarded by his Probation Officer as positive as there was no disclosure of any drug use on urinalysis and he was continuing to attend Alcoholics Anonymous and Narcotics Anonymous. He had consulted his general practitioner to receive his medication and had been compliant with the prescribed treatment with a consequent improvement in his mood.

94. By this time, Mr Ware was in a new relationship with his current partner and they were expecting a child. He had ceased attending the SMART Recovery Program because he said he “didn’t get anything out of it” and had called Canberra Men’s Centre but had not heard back from them.

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95. He consumed illicit drugs as disclosed on urinalysis on 19 February 2016 but otherwise complied satisfactorily with his bail conditions. Two other tests proved negative to illicit drugs.

96. A placement was available for Mr Ware at CRS in April 2016. Mr Ware, however, felt that he would benefit more from the Arcadia House Transition Program day program. The program has been described in R v Spencer [2014] ACTSC 364 at [24]-[28] and R v Wilkins [2015] ACTSC 145 at [40]-[41]. He was assessed as suitable for the program and I varied his bail conditions to permit this.

97. He was prepared to undertake that program, but wished first to be able to spend time with his partner who, regrettably, suffered the complicated miscarriage that required surgical management.

98. His participation in the program was to commence on 11 April 2016 and he entered the program on that day.

99. His initial participation was interrupted by a medical condition and inconsistent participation and motivation. As a result, he was required to re-commence the program on 13 May 2015. He participated in Illicit Drug Screening in April and June which were clear for illicit substances.

100. Mr Ware wished to discontinue the program because, he said, he was finding that he was not being helped and had learnt the information and strategies in his lengthy period at the Karralika Program.

101. On the basis that he remain drug free, gain employment and continue with Narcotics Anonymous and Alcoholics Anonymous, I considered that this was a reasonable approach. In forming this view, I had particular regard to his present abstinence and the fact that he had not been charged with any further offences since the most recent ones for which I must sentence him, committed in June and July 2014, now two years ago. He would, however, have to continue with supervision through ACT Corrective Services and submit to urinalysis.

Physical and Mental Health

102. Mr Ware has reasonably good physical health though he has suffered back pain from a motor vehicle collision 20 years ago. Nevertheless, it has not stopped his employment as a labourer. He does, however, suffer from epilepsy which is exacerbated by emotional stress. He has now been placed on appropriate medication and this appears to have been effective.

103. Apart from his ADHD, referred to above (at [66]), he has more recently had problems in coming to terms with the death of one of his children also referred to above (at [73]). He has problems with grief and loss.

104. He has suffered from depression for which he has received medication which seems to be addressing this.

105. He has had other contact with mental health services as a result of some discipline behaviour. He has had treatment for PTSD in early 2016, flowing from the death of his son. That led to some counselling but I had no further information.

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Criminal history

106. Mr Ware has a short criminal history, having been convicted of five offences prior to the subject offences. None of the offences resulted in imprisonment, though some were potentially serious offences, such as theft and damaging property.

107. While an offender cannot be punished again for prior offending, such offending can show whether the current offences are an uncharacteristic aberration or whether an offender shows a continuing disobedience to the law. See Veen v The Queen (No 2) (1988) 164 CLR 465 at 477. Nevertheless, a prior record does not necessarily deprive Mr Ware of some leniency: Hunter v The Queen [2011] NSWCCA 141 at [17].

108. These offences are relevant to fixing the sentences because they are part of Mr Ware’s character and antecedents. See Weininger v The Queen (2003) 212 CLR 629 at 640 [32]. In this case, it shows, too, that Mr Ware is not yet an entrenched criminal and, with appropriate support is likely to be able to reform and address his criminality positively. The steps he has already taken are some testament to this.

Consideration

109. I was concerned that Mr Ware had not complied with the Compensation Order made by Higgins CJ on 11 July 2013 to repay $7032. Through his employment, he can make some attempt to pay that amount and I shall make appropriate orders.

110. Compensation was also sought in the total sum of $4403 arising out of these offences. An order for payment of these sums is a reparation order under s 19 of the Crimes (Sentencing) Act 2005 (ACT). There was no opposition to such an Order being made.

Reports and references

111. I had regular reports from ACT Corrective Services which became increasingly positive and from CADAS which did show, after a somewhat rocky start where he failed to engage, a helpful level of support and guidance to which Mr Ware generally responded well. This assistance is what the Court has come to expect from CADAS and it is of great help in the sentencing process as well as providing appropriate guidance and support to the offender. The final CADAS Report received was positive.

112. I also had some references. His mother reported that he was committed to changing his life, wanting his current partner and child to have a good and honest life. She affirmed the efforts he had made to overcome his addiction and the commitment to his rehabilitation. Unfortunately, his commitment is not quite enough but he did maintain his desire to manage his drug addiction.

113. I had a similar letter from his grandmother. Of course, I must bear in mind that these references are from family members, which affect the weight that can be placed on them but I do not need to and do not discount them entirely or even substantially. Indeed, they evince family support which is a positive contribution to rehabilitation and the maintenance of a pro-social lifestyle.

114. I also had a reference from a long-time friend who had employed Mr Ware as a trades assistant. He described him as “reliable, honest and trustworthy”, even though he knew – and had talked to Mr Ware – about his offending. He is willing to re-employ Mr Ware when available. He said that he had seen a “definite change” in Mr Ware towards the use of illicit drugs and strong support from his family. At the most recent hearing before

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sentencing, he indicated that he would offer employment if the current arrangement fell through.

115. Later, I had two letters from Mr Ware’s current partner. They were, as to be expected, supportive. She, however, was able to give some insight into how Mr Ware had been under pressure when he did consume illicit drugs while on bail the two occasions he did so. It was also clear that she is a strong support for him to be abstinent and to manage his addiction.

116. She also made the relevant observation that Mr Ware, while consuming illicit drugs, must have also possessed, thereby committing an offence (s 171 of the Drugs of Dependence Act). He has not otherwise committed further offences.

117. She also confirmed that he was working on getting employment, addressing his mental health issues and taking steps to gain access to his daughter. He has, as I have indicated above, obtained employment and is addressing the other issues.

118. Since Mr Ware was last before the Court, he has continued to be supervised on bail and I had a positive Bail Progress Report, which justified my confidence that he has addressed his rehabilitation and set himself to return to a pro-social, productive life.

119. The Report noted that he had maintained satisfactory contact with ACT Corrective Services for supervision. He had maintained his employment and is said by his employer to be reliable and that the position he occupied was likely to last for some time. A reference from his employer confirmed this information. He said Mr Ware was “always on time and is willing to work extra hours if asked”. He added that Mr Ware “has been a pleasure to have around”. He confirmed his long-term prospects of employment with him.

120. He was directed to urinalysis on two occasions and both analyses were negative for illicit drugs and a preliminary result for an oral swab given last week was also negative. He has, however, had to reduce his drug treatment because of his employment commitments and is no longer in contact with Directions and has reduced, but not ceased, attendance at Alcoholics Anonymous and Narcotics Anonymous meetings. I regard this as acceptable in the circumstances.

Victim Impact

121. I did not have any Victim Impact Statements. There was some evidence of the loss suffered by the victims quantified in monetary terms. Some of this was quite significant. I can accept in general terms that the victim’s suffered more general and unquantifiable loss, including inconvenience and unpleasant feelings that their motor vehicles and houses had been violated.

Consideration

122. Mr Ware has made a long journey to address what was, for a young man with a relatively short criminal history, an uncharacteristic, serious criminal spree over some 18 months, obviously precipitated by his drug addiction.

123. Despite some setbacks and some derogation from the desirable goal of abstinence, he has made significant progress and is, it now appears, abstinent. In this, he has been supported by his partner, who is not a drug user and opposes the consumption of drugs. He is also motivated by his desire to regain access to and perhaps more involvement with his daughter and her life.

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124. Mr Ware has now been largely drug free for nearly two years, during which time he has undertaken a substantial amount of drug rehabilitation. He has also committed no further offences.

125. He has had some problems along the way and he has shown over time that he has been better able to manage them as a result than he earlier was.

126. I contrast the response to the unhappy access to his daughter with more recent events. On one occasion, Mr Ware’s former partner facilitated the access visit and then, in his current partner’s words, “didn’t let Joshua connect with his daughter” and blamed Mr Ware for the death of their son, a pretty devastating situation, especially as it was quite incorrect. That led him to consume illicit drugs again.

127. More recently, however, his current partner had a most tragic miscarriage when Mr Ware was very focussed on the great anticipation of the birth of another child for whom he could be a present father. On this occasion, he did not relapse into drug use and did continue with his rehabilitation.

128. These are great strides which he has made and which should be recognised. I also acknowledge his employment which is continuing.

129. I have regard to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act. In this case, general deterrence must play some part. I am not sure that specific deterrence plays a significant role other than in the sense of trying to reinforce that the direction in which Mr Ware is now headed is the correct one.

130. Rehabilitation is an important purpose here for Mr Ware has put quite some effort into achieving considerable progress in abstinence, re-establishing a successful family unit and maintaining employment.

131. I also have regard to the fact that a number of the offences were committed at or about the same time as those for which Higgins CJ dealt with Mr Ware. These are now old offences, committed over three years ago and which could well have been dealt with at that time.

132. I note that Mr Ware pleaded guilty to all of the charges in the Magistrates Court. This justifies a significant discount, though not the maximum for the plea was not at the earliest opportunity.

133. I take into account the seriousness of the offences. Some are not as serious as others but there are certainly quite serious offences for which Mr Ware must be sentenced. I have set out the seriousness of the offences above (at [8]-[14], [55]-[61]).

134. I also take into account the matters referred to in s 33 of the Crimes (Sentencing) Act of which I am aware. So far as I am aware of them, they have been set out in these reasons.

135. I have regard to the various reports and references that have been prepared and admitted into evidence in this case and to the record of the journey that Mr Ware has taken and the successes he has achieved.

136. To bring all these matters into account, I consider that there is no sentence but a sentence of imprisonment that must be imposed, but that the interest of justice do not require Mr Ware to serve any further period of full-time custody unless he breaches the conditions under which he may be at liberty.

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137. There is no doubt that it is proper in appropriate circumstances to take into account the periods Mr Ware has spent in residential facilities. See R v Elphick (No 2) [2015] ACTSC 23 at [89]-[90]. It does not need to be expressed as precise periods of time, such as by “backdating” a sentence as under s 63(1) of the Crimes (Sentencing) Act, but, as here, can affect the amount by which sentences are made concurrent to take account of such periods.

138. While I consider the periods of rehabilitation at Karralika and, to a lesser extent, at Arcadia, can be taken into account in this way, the period of time at CRS was too limited for this purpose. That time, where Mr Ware did engage well, and his time at Arcadia House will, together with the time he spent at Karralika, be relevant to an assessment of his prospects of rehabilitation and influence the sentence in that regard.

139. There are many sentences to be imposed. It is a pity that there is no power to impose what is sometimes called a “general sentence” (see Burge v McCarron [2011] ACTSC 87 at [33]-[34]), or a “global penalty” (Lowe v Visser [1988] Tas R 17), I must impose a separate sentence for each offence and comply with the principles in Pearce v The Queen (1998) 194 CLR 610.

140. The convictions I must enter for the offences constitute a breach of the Good Behaviour Order made by Higgins CJ on 11 July 2013 for three years. His Honour did not sentence Mr Ware to a period of imprisonment for the offences he then committed which I have described earlier (at [39]-[44]).

141. In this case, therefore, I must proceed in accordance with s 108 of the Crimes (Sentence Administration) Act 2005 (ACT) which provides that I can take one or more of the following actions:

(2) (a) take no further action;

(b) give the offender a warning about the need to comply with the offender’s good behaviour obligations;

(c) give the director-general directions about the offender’s supervision;

(d) amend the good behaviour order;

(e) if the offender has given security under the order -

(i) order payment of the security to be enforced; and

(ii) order the good behaviour order to be cancelled on payment of the security (if the term of the order has not already ended);

(f) cancel the order.

(3) If the court cancels the good behaviour order, the court must -

(a) if section 109 applies to the offender’s good behaviour order - deal with the offender under that section; or

(b) in any other case - re-sentence the offender for the offence for which the good behaviour order was made (the relevant offence).

(4) The Crimes (Sentencing) Act 2005 applies to the re-sentencing in the same way that it applies to the sentencing of an offender on a conviction for the relevant offence.

142. It seems to me that the commission of the further offences constitutes a breach of trust that was given by Higgins CJ in offering Mr Ware an opportunity to be at large in the

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community. That breach is relevant to the consideration of how to respond to the breach.

143. Given that it is constituted by further offending, it seems to me that I should cancel the Order. Mr Ware was not subject to a non-conviction order, therefore s 108(3)(a) of the Crimes (Sentence Administration) Act does not apply and I must re-sentence Mr Ware.

144. I do so on the original offences and I do so knowing that the prospects then of reform were not good because of the subsequent breaches. That, in my view, mandates a sentence of imprisonment, but I need also to take into account what Mr Ware has done subsequent to the commission of those further offences.

145. Nevertheless, on the offences which require action or a cancellation of the Good Behaviour Order, I consider, as I do for the subsequent offences, that no sentence but a sentence of imprisonment is warranted.

146. I should also first sentence Mr Ware for the breach before proceeding to sentence for the subsequent offences: Taylor v Bowden [2009] ACTSC 13 at [39].

147. Because there are multiple sentences to be imposed, I must carefully consider the length of each sentence that I must impose to ensure that where there are overlapping elements, such as, for example, with burglary and theft, and ensure that Mr Ware is not punished twice.

148. I have also to consider whether the sentences should be partly or wholly concurrent because, for example, where they are part of the same enterprise. In this case, there are examples of this where the offences were all part of the same occasion and the culpability can be properly reflected in a partly or wholly concurrent sentence.

149. Nevertheless, I must then review the length of the total term of imprisonment arrived at and ensure that the principle of totality is respected. I have done so and I have ensured that the total sentence is adequate to reflect the criminality of the offences committed, but not more than that, and that the total sentence is not crushing and leaves open the realistic prospect of reform and hope for Mr Ware to achieve his goals. Where necessary to achieve this, I have adjusted the cumulation or concurrency of the individual sentences.

150. I note that in the most recent Pre-Sentence Report, Mr Ware has been assessed as unsuitable for a community service work condition attached to a Good Behaviour Order because of his unaddressed drug addiction.

151. In this case, however, Mr Ware has been addressing that problem and I do not consider that it is a reason why such a condition cannot, in this case, be imposed.

152. Mr Ware, please stand:

1. I cancel the Good Behaviour Order made on 11 July 2013 and re-sentence you for those matters.

2. I confirm the conviction for theft on 10 March 2013.

3. I sentence you to nine months imprisonment to commence from 22 December 2015 to take into account pre-sentence custody. Had you not pleaded guilty, I would have sentenced you to 13 months imprisonment.

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4. I confirm the conviction for damaging property over $1000 in value on 10 March 2013.

5. I sentence you to six months imprisonment to commence on 22 May 2016 that is to be cumulative as to two months on the sentence for theft on 10 March 2013. Had you not pleaded guilty, I would have sentenced you to nine months imprisonment.

6. I convict you of theft between 16 and 19 February 2013.

7. I sentence you to six months imprisonment to commence on 22 June 2016 that is to be cumulative as to one month on the sentence for damaging property over $1000 in value on 10 March 2013. Had you not pleaded guilty, I would have sentenced you to nine months imprisonment.

8. I convict you of theft between 10 and 13 March 2013.

9. I sentence you to nine months imprisonment to commence on 22 May 2016 that is to be cumulative as to two months on the sentence for theft between 16 and 19 February 2013. Had you not pleaded guilty, I would have sentenced you to 13 months imprisonment.

10. I convict you of theft between 10 and 13 March 2013.

11. I sentence you to six months imprisonment to commence on 22 September 2016 that is to be cumulative as to one month on the earlier sentence of theft between 10 and 13 March 2013. Had you not pleaded guilty, I would have sentenced you to nine months imprisonment.

12. I convict you of theft between 10 and 13 March 2013.

13. I sentence you to nine months imprisonment to commence on 22 September 2016 that is to be cumulative as to three months on the sentence for the second theft between 10 and 13 March 2013. Had you not pleaded guilty, I would have sentenced you to 13 months imprisonment.

14. I convict you of theft on 17 March 2013.

15. I sentence you to six month imprisonment to commence on 22 January 2017 that is to be cumulative as to one month on the third sentence for theft on 10 to 13 March 2013. Had you not pleaded guilty, I would have sentenced you to nine months imprisonment.

16. I convict you of damaging property over $1000 in value between 5 and 8 April 2013.

17. I sentence you to six months imprisonment to commence on 22 February 2017 that is to be cumulative as to one month on the sentence for theft on 17 March 2013. Had you not pleaded guilty, I would have sentenced you to nine months imprisonment.

18. I convict you of damaging property over $1000 in value on 5 to 8 April 2013.

19. I sentence you to six months imprisonment to commence on 22 March 2017 that is to be cumulative as to one month on the earlier sentence for damaging property over $1000 in value on 5 to 8 April 2013. Had you not pleaded guilty, I would have sentenced you to nine months imprisonment.

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20. I convict you of destroy/damaging property not exceeding $5000 between 16 and 19 February 2013.

21. I sentence you to six months imprisonment to commence on 22 April 2017 that is to be cumulative as to one month on the second sentence for damaging property over $1000 in value on 5 to 8 April 2013. Had you not pleaded guilty, I would have sentenced you to nine months imprisonment.

22. I convict you of destroy/damaging property not exceeding $5000 between 10 and 13 March 2013.

23. I sentence you to four months imprisonment to commence on 22 July 2017 that is to be cumulative as to one month on the sentence for destroy/damaging property not exceeding $5000 between 16 and 19 February 2013. Had you not pleaded guilty, I would have sentenced you to five months imprisonment.

24. I convict you of destroy/damaging property not exceeding $5000 between 10 and 13 March 2013.

25. I sentence you to six months imprisonment to commence on 22 June 2017 that is to be cumulative as to one month on the earlier sentence destroy/damaging property not exceeding $5000 between 10 and 13 March 2013. Had you not pleaded guilty, I would have sentenced you to nine months imprisonment.

26. I convict you of destroy/damaging property not exceeding $5000 on 12 March 2013.

27. I sentence you to six months imprisonment to commence on 22 July 2017 that is to be cumulative as to one month on the second sentence for destroy/damaging property not exceeding $5000 on 10 to 13 March 2013. Had you not pleaded guilty, I would have sentenced you to nine months imprisonment.

28. I convict you of unlawful possession of property reasonably suspected of being stolen on 17 April 2013.

29. I sentence you to two months imprisonment to commence on 22 November 2017 that is to be wholly cumulative on the sentence for destroy/damaging property not exceeding $5000 on 12 March 2013. Had you not pleaded guilty, I would have sentenced you to three months imprisonment.

30. I convict you of possessing a prohibited substance, namely cannabis, on 17 April 2013.

31. I sentence you to two months imprisonment to commence on 22 December 2017 that is to be cumulative as to one month on the sentence for unlawfully possessing property reasonably suspected of being stolen on 17 April 2013. Had you not pleaded guilty, I would have sentenced you to three months imprisonment.

32. I convict you of burglary – intent to steal on 6 to 8 July 2014.

33. I sentence you to 18 months imprisonment to commence on 22 February 2017 that is to be cumulative as to six months on the sentence for possessing a prohibited substance, namely cannabis, on 17 April 2013. Had you not pleaded guilty, I would have sentenced you to 24 months imprisonment.

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34. I convict you of dishonestly riding in a motor vehicle without the owner’s consent between 6 and 8 July 2014.

35. I sentence you to 12 months imprisonment to commence on 22 November 2017 that is to be cumulative as to three months on the sentence for burglary – intent to steal between 6 and 8 July 2014. Had you not pleaded guilty, I would have sentenced you to 18 months imprisonment.

36. I convict you of theft between 6 and 8 July 2014.

37. I sentence you to 12 months imprisonment to commence on 22 August 2017 that is to be wholly concurrent on the sentence for burglary – intent to steal between 6 and 8 July 2014. Had you not pleaded guilty, I would have sentenced you to 18 months imprisonment.

38. I convict you of burglary – intent to steal between 28 and 29 June 2014.

39. I sentence you to 18 months imprisonment to commence on 22 November 2017 that is to be cumulative as to six months on the sentence for dishonestly riding in a motor vehicle without the owner’s consent between 6 and 8 July 2014. Had you not pleaded guilty, I would have sentenced you to 24 months imprisonment.

40. I convict you of theft between 28 and 29 June 2014.

41. I sentence you to 12 months imprisonment to commence on 22 July 2018 that is to be cumulative as to two months on the sentence for burglary – intent to steal committed on 28 and 29 June 2014. Had you not pleaded guilty, I would have sentenced you to 18 months imprisonment.

42. I convict you of dishonestly riding a motor vehicle without the owner’s consent between 7 and 8 July 2014.

43. I sentence you to 12 months imprisonment to commence on 22 October 2018 that is to be cumulative as to two months on the sentence for theft between 28 and 29 June 2014. Had you not pleaded guilty, I would have sentenced you to 18 months imprisonment.

44. I convict you of attempted theft between 15 and 16 July 2014.

45. I sentence you to 18 months imprisonment to commence on 22 October 2018 that is to be cumulative as to six months on the sentence for dishonestly riding a motor vehicle without the owner’s consent between 7 and 8 July 2014. Had you not pleaded guilty, I would have sentenced you to 24 months imprisonment.

46. I convict you of burglary – intent to steal between 15 and 16 July 2014.

47. I sentence you to 12 months imprisonment to commence on 22 May 2019 that is to cumulative as to one month on the sentence for attempted theft between 15 and 16 July 2014. Had you not pleaded guilty, I would have sentenced you to 18 months imprisonment.

48. I convict you of theft between 11 and 12 August 2014.

49. I sentence you to 18 months imprisonment to commence on 22 May 2019 that is to be cumulative as to six months on the sentence for burglary – intent to steal between 15 and 16 July 2014. Had you not pleaded guilty, I would have sentenced you to 24 months imprisonment.

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50. I convict you of burglary – intent to steal between 11 and 12 August 2014.

51. I sentence you to 12 months imprisonment to commence on 22 December 2019 that is to be cumulative as to one month on the sentence for theft committed between 11 and 12 August 2014. Had you not pleaded guilty, I would have sentenced you to 18 months imprisonment.

52. That is a total of five years imprisonment to commence on 22 December 2015 and expire on 21 December 2020.

53. I suspend that sentence today for five years.

54. I require you to sign an undertaking to comply with the offender’s Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of five years with the following conditions:

(a) a probation condition that you be under the supervision of the Director-General or her delegate and obey all reasonable directions that the person supervising you for a period of three years or such lesser period as the person supervising you considers appropriate;

(b) that you perform 250 hours of community service work within two years from today;

(c) that you attend such treatment or counselling for drug addiction and mental impairment as the person supervising you may reasonably direct.

55. The order for payment of $7032 made on 11 July 2013 be confirmed and the period by which payment is to be made be extended to 7 September 2020.

56. I order you to pay the sum of $4403 for loss and expenses of the following persons in the following sum on or before 7 September 2022 to be paid out by the Registrar to those persons at addresses provided by the Director of Public Prosecutions:

(a) Ms Imogen Taylor $548

(b) Ms Elizabeth Hamston $205

(c) Mr Karmal Chowdhrey $3000

(d) Mr Nicholas Love $650

[His Honour then spoke directly to Mr Ware]

153. Mr Ware, looking at all the criminality, what I have assessed is that had you not made the rehabilitation that you have, you would be going to gaol for five years. These were serious offences, a whole series of them, continuing, and you, I think, understand that, but you have made the journey with me and with Ms Bolas and Mr Sahu Khan over a period of time, and although it has been up and down, it has been mainly up. Here you are now, I hope drug-free, employed, in a good relationship and ready to get back into the community, to be productive and good for yourself, and for your partner, your family, your friends, your mother, and your grandmother, who I hope is still alive.

154. These are, however, still serious offences, and you are still at risk. Without my supervision, coming back before me, people can go wild. Now, I do not think you are going to go wild, but hopefully you will be able to survive this and, if so, it is a snip.

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Five years is a long time, I know, but the legislation requires me to deal with it in that way, and that is how I have done it.

155. I do think the community needs you to pay them back something, and that is why I have given you 250 hours of community service. You should contact Corrective Services, possibly this afternoon. Go over and see them and make efforts to do that. It should not interfere with your employment. If there are problems, speak to Ms Bolas and come back and we will see what we can do about that.

156. The Good Behaviour Order requires you to do four things. The first is not to commit any further offences. If you do, you can be brought back to the Court. I retire in a short period of time, and so you may be brought back before someone else. They may not have the attitude that I have, so it is really wise not to commit any further offences.

157. Secondly, you are under supervision. Now, that is for a maximum period of three years; five years would be excessive; a maximum period of three years, but the person supervising you can say "I've seen you long enough. I don't need to see you any more", or "Phone in every month" or whatever they decide.

158. I expect in a short period of time that is likely to be the supervision that there is, although they may want to continue to supervise you for the period of the community service work. That is 250 hours, usually done in blocks of eight hours a day, but it may be that it is going to be problematic for you and they may have to make other arrangements for you. You need to get started on that because those two years will run out very quickly, and you do not want to be short of that because you want to get on with other things, because having too many things will bring undue pressure.

159. The third is treatment and counselling. I trust that the first part of that, namely the drug addiction is no longer much of a problem. I expect they will say “Continue with Narcotics Anonymous and Alcoholics Anonymous, with your work, with the community service.” There is not a lot of time to go back into other things like SMART Recovery. You have completed a lot of rehabilitation, but some transition at this period when you are free from me and the Courts is probably desirable.

160. The second part of that is your mental health. Now, you are not ill, you do not have schizophrenia or something really bad, but there are still some grief issues. I do not know how well you are going with those. You need to talk to your probation officer and see whether you need some assistance with that. I do not know whether EveryMan would be appropriate, or whether through your GP you can obtain a mental health plan for some counselling or whatever. But that is an option I recommend you should consider.

161. If that is still a problem with you, it is going to hold you back, and you want to put these things as far as you can behind you. You want to put the whole lot behind you obviously. I have absolutely no doubt. With some people I say I hope we will not ever see you again. I have no doubt we will not see you again. But things do go wrong. It is not going to be easy. Just because you do not have to come back and see me the bed is not roses. There will be other challenges in your life of the kind that you have already experienced.

162. If you have now learned the skills and the techniques that can stop you relapsing, then you will survive. If not, then you have got a probation officer to talk to. Hopefully you can go and see EveryMan, you can go back to Directions and you have got your Narcotics Anonymous and Alcoholics Anonymous support to assist you.

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163. The fourth part of the Good Behaviour Order is the community service which I have discussed above.

164. I am sorry that you got into this mess. It is really a bad period of your life and it is going to live with you for some time, but at least you have employment and you have some pressure for the next five years to behave, because you do not want to go back to gaol, and that is where you might be if you do not.

165. So congratulations. I seriously mean that. You have done very well. I am very pleased. When you look at the sentence you may not think it is all good, but from where I sit it is a pretty good recognition of what you have done, and I hope it is a genuine support for you to make a good life, and you will understand what I mean when I say I hope never to see you again, unless I bump into you in Woolworths or something like that.

I certify that the preceding one hundred and sixty-five [165] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.

Associate:

Date: 2016

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