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  • Unreported Judgment

R v MDA[2015] QDC 345

DISTRICT COURT OF QUEENSLAND

CITATION:

R v MDA [2015] QDC 345

PARTIES:

The Queen

(prosecution)

v

MDA

(defendant)

FILE NO/S:

1206/15

DIVISION:

Criminal

PROCEEDING:

Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

26 November 2015 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

26 November 2015

JUDGE:

Dearden DCJ

ORDER:

The defendant is sentenced to 6 ½ years for the offence of burglary by breaking and stealing (indictment no. 1206/2015) and shorter concurrent sentences for other offences identified in paragraph 15; ordered to serve concurrently the outstanding period of 2 years and 8 months of a suspended sentence imposed 19 February 2014 for the offence of enter premises and commit indictable offence by break. Declaration of 537 days pre-sentence custody as time served in respect of the sentences

CATCHWORDS:

CASES:

CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – where defendant pleaded guilty to various property offences – where offending breached a suspended sentence – where the defendant had declarable pre-sentence custody – where defendant provided a relapse prevention plan.

R v Bryant [2007] QCA 247

R v Meredith [2002] QCA 481

R v Russell [2005] QCA 392

R v Weston [1997] QCA 260

COUNSEL:

M Connolly for the prosecution

R O'Gorman for the defendant.

SOLICITORS:

Office of the Director of Public Prosecutions for the prosecution

Legal Aid Queensland for the defendant.

  1. [1]
    Thank you. Stand up, please, Mr MDA. Before I pass sentence, is there anything that you want to say about any aspect of this? You’ve pleaded guilty today to one count of burglary by breaking and stealing on indictment 1206 of 2015, a single summary offence of receiving tainted property and then these further summary offences: two charges of enter dwelling and commit indictable offence, three charges of breach of bail condition, one charge of unlawful use of a motor vehicle, aircraft or vessel, two charges of wilful damage, one charge of dangerous operation of a vehicle, three charges of assault or obstruct police officer, one charge of failing to stop a motor vehicle, one charge of driving without a licence disqualified by court order, two charges of unlawful use of motor vehicles, aircraft of vessels used or intended for indictable offence and one charge of possess tainted property.
  1. [2]
    The offending all breaches the sentence imposed by Judge Butler in the Brisbane District Court on 19 February 2014 for an offence of enter premises and commit indictable offence by break for which you were sentenced to three and a-half years to be suspended for an operational period of four years after serving 10 months. And that was a break and enter of a Prouds Jewellery store in Warwick where a sum of nearly $90,000 worth of property was taken. Your offending, according to the list of summary offences which is exhibit 10, commenced on the 10th of March 2014. By my calculations, you must have got out of jail after Judge Butler’s sentence by about the end of February, so you were committing offences within about five and a-half weeks of your release from custody. And then, of course, it just got worse and worse and you continued to offend for just under three months before you were arrested and came back into custody.
  1. [3]
    Now, some of the things I'm going to tell you, you know anyway. I've read your very lengthy letter to me, for which I thank you. I've read your relapse prevention plan which demonstrates significant insight. I've read the very helpful report of Dr Mariani which gives me significant insight. But at a very basic level, you will spend your life in prison unless you can deal with your drug addiction. That’s the number 1 proposition. You lasted, as I've said, less than six weeks out last time before you started committing offences again, and you were back inside within four months of your release – or just over four months. There are some signs that give the court some comfort, and I express that in very guarded terms because you yourself know how hard it is. You yourself have indicated very honestly, very frankly the difficulties that you see once you're released from custody. You’ve got a longstanding drug addiction to a range of different drugs, including heroin and amphetamines as well as cannabis. You have been committing offences including serious offences like robbery from the age of 16.
  1. [4]
    You have repeatedly committed offences of burglary, and the indictable offence of burglary for which you are to be dealt with today is a burglary in which the value of property taken from the schedule of facts is in the order of $112,000 and nearly $90,000 of that was not covered by insurance. Now, the property you took was very high value property and I've got no doubt that the loss of that property has caused significant heartache for the family concerned. But the thing that seems to have caused the most stress is the loss of jewellery which has not only financial value but personal value.
  1. [5]
    Now, I don’t know whether you can see from there, but that's my wedding ring. It’s never going to be stolen because I can't actually get it off my ring finger. I've put on too much weight since I got married. But the thing about that ring is that it actually didn’t cost very much. It’s a very modestly priced white gold wedding ring. But that ring has my heart in it; it has nearly 30 years of marriage in it and if it was taken it wouldn't be its’ value, which is modest. It would be its significance; the fact that it has my heart, my life and things that are extraordinarily important to me way more than money – way more than value.
  1. [6]
    That’s what you do when you steal jewellery. You don’t just take the value of it – whatever some person who’s taking stolen jewellery and gives you a fraction of its value – gives you – or even what an insurance company gives you if you're lucky enough to have it insured and you get the full value. That's not its value. It’s what it means to people in their lives. And you're responsible for that. You're responsible for that whether or not you're a drug addict, whether or not you suffer from depression and anxiety – and I don’t doubt any of that, by the way. I understand what's driving you, but from the point of view of the community, unless and until you can find appropriate ways, support and treatment to deal with your drug addiction and your consequent repeated criminal offending, you will live your life in jail.
  1. [7]
    Now, that’s really sad. You have a beautiful girlfriend who has been prepared to commit to you. That’s precious. That's – again, that's about love. That’s about the ability of someone to give you their heart and you – your heart to them, I hope. You have a hope that in time you will make a home, that you will sustain a relationship and that you will have children. Those are hopes, dreams and ambitions that you share with many people. And they too are precious and important and valuable. Those are the sorts of hopes and dreams that make the world go around, because it’s about relationship with others, about forming a family of our own, about being loving and nurturing and respectful in that family and of bringing up children who, with love and nurture and care and support, will go on to contribute within the family, within the community, within the country.
  1. [8]
    All of those are wonderful goals, but you will only achieve them if you can deal with your drug addiction, because if you don’t deal with your drug addiction you will return to crime. If you return to crime, you will return to jail. If you return to jail, you forfeit your chance to participate in the community and to have a home, to have a loving relationship and to have children. I mean, you might incidentally have children along the way, but you won't get to be a hands-on dad if you spend your life in jail. You’ve suffered some of those same problems yourself. You're well aware of that – what happened to your mum and what happened to your dad when you were growing up.
  1. [9]
    So the risks are very clear to you, but, of course, as you’ve also worked out, it’s very, very difficult – it’s one thing to look at a situation and say, “Well, I understand why and I understand what's driving me.” It’s another thing to live the life, and you’ve got to live it every day. And if you can't live it drug-free and crime-free when you get out, then because your criminal offending has so damaged others by value and repeated offending – that criminal offending, then you will have to spend your life in jail – profoundly sad for those who care about you, love you and support you. Ms O'Gorman tells me that your sisters are people who have managed, despite coming from the same background as you, to have risen above it – to have made themselves positive and useful contributors to the community – people who have made homes and raised families despite that. They obviously still love you and care about you; you’re family. And you may be part of the family who have struggled to get it right, but you're still family, and that’s extraordinarily important.
  1. [10]
    As I said, your girlfriend T has committed to you despite what you've done, and that again means that she recognises some part of you that still has enormous potential if you can deal with your drug addiction. The way I'm going to deal with you today is this. You’ve committed all these offences while in breach of your suspended sentence. Ordinarily, that would have resulted in the sentences I impose today being cumulative, but I'm not going to do it cumulatively. I'm going to do it concurrently. But the starting point, as I said to your barrister, that I would have started from is effectively, if I’d been sentencing you cumulatively, an effective head sentence of around eight years. So that would have been about five years and four months or five and a-half years on top of the two years and eight months that you still owe from your suspended sentence.
  1. [11]
    But I have an obligation to look at the big picture, and the big picture is that you're still a very young man – 24 turning 25 today. You have entered an appropriate and timely plea of guilty. You’ve cleared up everything that’s outstanding. You’ve served a long period already – nearly 18 months in custody. And you have spent a lot of time thinking about and articulating what you want, how you might achieve it and what you need to do to make sure that you don’t go backwards. And that's, of course, contained in your relapse prevention plan.
  1. [12]
    A relapse prevention plan is not just a piece of paper. It’s a pathway to live a life which in the past has been stuffed up continually, so it’s a pathway to a better life. You’ve obviously spent a lot of time on preparing that. I've read it, and I'm impressed by it. But, of course, you have to live it when you get out. It’s relatively easy to live it while you're in prison although drugs are available, of course, in prison, as we all know. But when you get out, there’s a drug dealer on every corner and there’s a pub on every other corner. And as you’ve already worked out, you have a susceptibility to alcohol as well as to drugs, so there’s no point in you getting out and just transferring your addiction from illegal drugs to alcohol. You have to deal with all of those things as a package.
  1. [13]
    Taking into account all those matters, taking into account the decisions helpfully placed before me by the prosecutor and endorsed by your counsel, Ms O'Gorman – those decisions of Bryant,[1] Meredith,[2] which I found most useful, Weston[3] and Russell.[4]  I'm ultimately of the view that the appropriate way to deal with you is this – and be patient with me because there’s a lot of offences. I will just go through them one by one.
  1. [14]
    In respect of the suspended sentence for the offence of enter premises and commit indictable offence by break, for which you were sentenced on 19 February 2014 in the Brisbane District Court, I do not consider it would be unjust to order you to serve the whole of that sentence that is outstanding. That’s a sentence outstanding of two years and eight months. You were originally sentenced to three and a-half years to be released after serving 10 months. So I order that you serve that two years and eight months but to serve it concurrently with all the other sentences I'm going to impose. The rest of these sentences are also to be served concurrently with each other and with the balance of that suspended sentence.
  1. [15]
    On the burglary by breaking and stealing, which is on indictment 1206 of 2015 on the dwelling of Mr Phillips, you are convicted and sentenced to six and a-half years’ imprisonment. In respect of the single summary charge of receiving tainted property, you are convicted and sentenced to 18 months. And then working my way down the list of the remainder of the summary offences, on charges 1 and 14 – enter dwelling and commit indictable offence – on each count, convicted and sentenced to two and a-half years. The breaches of bail, charges 2, 12 and 13, on each charge convicted and not further punished. The unlawful use of a motor vehicle, aircraft or vessel – convicted and sentenced to 18 months. The two wilful damages – sorry – the unlawful use was charge 3. The two wilful damages, charges 4 and 5, convicted and sentenced to three months on each charge. The dangerous operation of a motor vehicle, charge 6, convicted and sentenced to 12 months’ imprisonment, disqualified from holding or obtaining a driver’s licence for a period of 12 months. The assault or obstruct police charges, three of them, charges 7, 9 and 10, you are on each case convicted and not further punished. Charge 8, failing to stop a motor vehicle, has a mandatory minimum sentence of 50 days’ imprisonment. You are convicted and sentenced to 50 days’ imprisonment, all to be served in a correctional centre. Charge 11, driving without a licence, disqualified via court order, convicted and not further punished, but you are disqualified for the minimum period of two years. I can’t impose any less in respect of that matter. Charges 15 and 16, unlawful use of a motor vehicle, aircraft or vessel, used/intended for indictable offence, two charges, on each charge convicted and sentenced to 18 months. And charge 17, possess tainted property, convicted and sentenced to 18 months.
  1. [16]
    I declare the period between 7 June 2014 and 25 November 2015, a total of 537 days, as time served in respect of the sentence. It’s about 17 and a-half months. And I set a parole eligibility date of 6 August 2016. You need to ensure that you do everything possible and, in particular, undertake any courses available to you in prison, to make sure that you are ready for that eligibility date with an appropriate application for parole, and you spoke about that in your letter to me. That’s a matter in which a careful preparation after undertaking all possible courses is an appropriate and sensible way to proceed.
  1. [17]
    I’ll order that a copy of exhibit 11, the report of Dr Mariani, be made available to the Department of Corrective Services to assist in respect of that parole application in due course and in their supervision of you after your release on parole. I have, as I’ve said, taken careful account of what you’ve told me. I’ve read your relapse prevention plan, which, although not tendered, was provided to me for the purpose of reading, and it’s detailed, comprehensive, insightful, and demonstrates that if you can stick to it, then you have some reasonable chance of putting your life back on track. But it requires you to stick to it. And at the end of the day, if you make good decisions and you stay drug-free and crime-free and live a life in which you are respectful of the rights of the others and, in time, respected by others, earn an honest income, receive appropriate mental health treatment and drug treatment, then you will get to live in the community and remain in the community on your release. And if you can’t do those things, you go back to jail. It’s as simple as that.
  1. [18]
    Although it’s as simple as that, of course, it’s very difficult for you to live it, because I don’t have to live it, you do. I’m not with you. Your family are supportive but are not walking beside you day to day. Your girlfriend is supportive, but doesn’t get to walk beside you day to day. Ultimately, you are the only person in the world who can make the necessary decisions to make sure that you stay out when you get out. My hope for you is that from this point on, particularly once you’re released, you make good decisions, that you don’t return to crime, drug offending and further custody. But it’s a matter for you. If you make bad choices, you will have to cop the consequences, and those, it seems to me, are painfully clear at this stage in your life, despite your very young age.
  1. [19]
    I wish you all the best. If it works for you, it’s good for you, of course, you get to stay out of the slammer. But it’s good for those who love you, care about you and support you, and you have to put that love and care and support – you have to value it more highly than drugs or anything else in your life. And if you can’t do that, it’s a decision you can make. I can’t stop you making decisions like that. But you will have to live with the consequences.

Footnotes

[1] [2007] QCA 247.

[2] [2002] QCA 481.

[3] [1997] QCA 260

[4] [2005] QCA 392.

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Editorial Notes

  • Published Case Name:

    R v MDA

  • Shortened Case Name:

    R v MDA

  • MNC:

    [2015] QDC 345

  • Court:

    QDC

  • Judge(s):

    Dearden DCJ

  • Date:

    26 Nov 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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