Amos v McCarron (No 2)
[2017] ACTSC 46
•15 February 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Amos v McCarron (No 2) |
Citation: | [2017] ACTSC 46 |
Hearing Date: | 9 February 2017 |
DecisionDate: | 15 February 2017 |
Before: | Refshauge J |
Decision: | 1. The convictions entered on 17 October 2013 of Adam Amos as a repeat offender driving whilst disqualified on 19 October 2012 and 28 December 2012 be confirmed. 2. The cancellation on 17 October 2013 of the Good Behaviour Orders made on 15 December 2011 be confirmed. 3. Adam Amos be re-sentenced for the offence of trafficking in heroin on 2 January 2011 to nine months imprisonment to commence on 20 December 2016. 4. Adam Amos be re-sentenced for the offence of driving on 25 May 2011 with more than the prescribed concentration of alcohol to three months imprisonment to commence on 20 December 2016. 5. Adam Amos be sentenced to two months imprisonment for the offence of driving while disqualified as a repeat offender on 19 October 2012 to commence on 20 August 2017. 6. Adam Amos be sentenced to three months imprisonment for the offence of driving whilst disqualified as a repeat offender on 28 December 2012 to commence on 20 September 2017. 7. The sentence be suspended from 15 February 2017 for two years. 8. Adam Amos be required 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 two years with a probation condition that he be under the supervision of the Director-General or her delegate for 12 months, or such lesser period as the person supervising him considers to be appropriate, and obey all reasonable directions of that person. 9. Adam Amos be required to report by 4:00 pm today, 15 February 2017, to ACT Corrective Services, Level 1, 249 London Circuit, Canberra City, ACT for the purposes of arranging probation supervision. 10. It be declared that, under s 32(5) of the Road Transport (Driver Licensing) Act 1999 (ACT), Adam Amos’ automatic disqualification from holding or obtaining a licence in respect of the offence of driving whilst disqualified as a repeat offender on 19 October 2012 commenced on 17 October 2013 and ended on 16 October 2015, and for the offence of driving whilst disqualified as a repeat offender on 28 December 2012 commenced on 17 October 2013 and ended on 16 October 2015. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – appeal against sentence imposed by Magistrates Court upheld – re-sentence – driving with a prescribed concentration of alcohol – drink driving – special driver – driving whilst disqualified – repeat offender – breach of Good Behaviour Orders – disqualification from holding or obtaining a licence – delay in sentencing – self reform – rehabilitation relevant to sentencing – general deterrence – suspended sentence |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), s 110 |
Cases Cited: | Amos v McCarron [2017] ACTSC 6 |
Parties: | Adam Amos (Appellant) Theresia McCarron, Roger Neville Watts and Suzanne Marie White (Respondents) |
Representation: | Counsel Dr A Hopkins (Appellant) Mr S Drumgold (Respondents) |
| Solicitors John O’Keefe (Appellant) ACT Director of Public Prosecutions (Respondents) | |
File Number: | SCA 86 of 2013 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Special Magistrate Cush Date of Decision: 17 October 2013 Case Title: Watts v Amos Court File Number: CC 9507 of 2012 |
REFSHAUGE J:
Delay ordinarily dilutes or may even destroy justice, especially criminal justice, but sometimes delay can achieve the objective of the criminal law by protecting the community where an offender, who might otherwise prey upon society, may be reformed over time so that the community is protected from any future crimes that he or she might otherwise have committed.
This has some statutory recognition in the Deferred Sentence Order that a court may make under s 27 of the Crimes (Sentencing) Act 2005 (ACT) which permits reform to be achieved before sentence is imposed, thus achieving the objective of sentencing as was realised at least as far back as 1977 when the High Court had to consider such a process in Griffiths v The Queen (1977) 137 CLR 293, and which Barwick CJ described at 299 as, in that case, a decision not in error by the sentencing judge. This was a view shared by Murphy J at 328, though not a view with which all members of the Court agreed.
In this case, however, the delay was neither planned nor the result of a deliberate court order, but because pressure of the Court’s business delayed the determination of an appeal by the appellant against his sentence in the ACT Magistrates Court. The appellant has made good use of that time and the interests of justice require that his conduct be accorded significant weight in the sentencing proceedings with which I am now concerned.
On 17 October 2013, the appellant, Adam Amos, was convicted of two charges of driving with a prescribed concentration of alcohol as a repeat offender and two offences of driving whilst disqualified as a repeat offender.
He was fined for the two offences of driving with the prescribed concentration of alcohol but sentenced to imprisonment for the offences of driving whilst disqualified.
The convictions constituted a breach of Good Behaviour Orders made when two sentences of imprisonment of three and nine months respectively were suspended and both those sentences were imposed which, in addition to the two sentences for the offences of driving whilst disqualified, constituted a total term of imprisonment for 17 months.
Mr Amos appealed against the four sentences of imprisonment and on, 19 January 2017, I upheld the appeal. See Amos v McCarron [2017] ACTSC 6. That required Mr Amos to be re-sentenced.
The offences
Driving whilst disqualified is an offence against s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) which, for a repeat offender, as Mr Amos was, attracts a maximum penalty of 100 penalty units (that is, at the time of the offence, a fine of
$11 000), or imprisonment for one year, or both.
They are, therefore, not then the most serious of offences, though, as will be shown later, these were relatively serious versions of this offence.
The facts
The circumstances were that on 15 December 2011, Mr Amos was convicted of a number of offences, including two drink driving offences and an offence of driving whilst his driver licence was suspended by law. I did not have any information about the circumstances of that suspension, though it was not imposed by a court. He was, in addition to other penalties to which I will later refer (at [55]), disqualified from obtaining or holding a driver licence for various period totalling 12 months.
On 19 October 2012, however, Mr Amos was driving along Boddington Crescent, Kambah, ACT, when he was identified by police as he stopped at the intersection with Drakeford Drive.
Police followed him and intercepted his vehicle on Marconi Crescent, Kambah. They asked him to produce his licence. Mr Amos initially said he did not have his licence on him but he answered the question, of whether he had a licence, in the affirmative; he explained to police that he had left it at home. He did not produce any identification, but, when the police officer pointed out that if there was anything wrong with his licence police would find out, Mr Amos admitted that his licence had been “suspended” by the Court. He then located his wallet and produced identification.
He was subject to breath analysis and found to have been driving, as a special driver, with the prescribed concentration of alcohol in his breath, contrary to s 4C(a) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT). See Amos v McCarron at [26]-[27].
Police confirmed that he was, at the time, disqualified following the convictions on 15 December 2011, and later he was summonsed to appear in the Magistrates Court to answer the charge of driving whilst disqualified and for drink driving.
Convictions for the offence of driving whilst disqualified would breach the two Good Behaviour Orders of two years duration that had also been made on 15 December 2011.
The summonses were issued on 5 December 2012, returnable on 10 January 2013, but I had no information as to when it was served on him.
On 28 December 2012, by which time it was, however, likely that Mr Amos would have been served with the summonses for the first offences, Mr Amos was observed driving on Clift Crescent, Richardson, and was stopped by police a short time later in Lamport Place. Mr Amos was asked to produce his licence and produced an expired NSW driver licence but, this time, he told the police officer that he did not have a licence. He gave no explanation to police or to me as to why he was driving or any of the relevant circumstances of his driving.
He was again subject to breath analysis and again found to have been driving with the prescribed concentration of alcohol in his breath. See Amos v McCarron at [34].
He was arrested and charged with driving whilst disqualified and drink driving. He was then bailed by police to appear in Court on 10 January 2013, the same date as the return date for the summons.
The offences
There is no doubt that courts should take seriously offences of driving whilst under disqualification. In Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 at 317; [88], I cited what King CJ said in Coombe v Douris (1987) 47 SASR 324 at 325:
The offence of driving while under disqualification is a most serious offence ... Its seriousness consists in the defiance of the law which it manifests and in the fact that it nullifies the effect of the order of disqualification which is imposed for the protection of the public. The effectiveness of orders of disqualification from holding or obtaining a driver’s licence depends upon observance of them by the persons disqualified. If they are treated with contempt and ignored by the person’s affected, the orders of the court designed to deter offenders and to protect the public are rendered ineffective.
The disqualification is, of course, part of the regulatory regime which underpins the licensing scheme for motor vehicles. Given the potential lethality of such vehicles, the licensing scheme is a necessary element of protection of the public. It is, of course, also relevant that it is not an easy offence to detect, especially if the disqualified driver breaches no road rules or does not otherwise comes to the attention of police, though police have developed mechanisms, such as the RAPID System, which I described briefly in Snaidero v Crampton [2014] ACTSC 262 at [29], to detect more disqualified drivers without the need for such breaches.
In this case, there was no information available to me as to how police came to stop Mr Amos while he was driving. It may have been through application by the police officers of the RAPID System. Certainly there was no particular manner of driving suggested in the Statement of Facts that might have drawn the attention of police to him.
By the same token, no explanation was offered as to why Mr Amos was driving. Such driving is likely to be regarded as contumacious. There was some suggestion at trial and on appeal that, on the first occasion, he believed that he had been licensed because he misunderstood the decision of the Court which made the disqualification order.
It has been suggested in Cotter v Corvisy at 307; [36], that other courts, particularly in South Australia, have suggested that in the ordinary case of contumacious offending by a first offender, the punishment should be imprisonment. That approach, however, does not seem to have been applied in this Territory. See, for example, Selles, Rollings, Director of Public Prosecutions (ACT) v Bailey [2000] ACTSC 111 at [22]. I see no reason why it should necessarily apply, though the offence is a serious one.
As I explained in Cotter v Corvisy at 308; [38], contumacious driving is constituted by driving when the person knows that it is prohibited and he or she has no reasonable excuse for doing it or no reasonable belief that it can be excused. It suggests defiant disobedience to authority.
At the hearing before the learned Magistrate, there was some suggestion that Mr Amos had a belief that would have meant that the first offence was not an example of contumacious driving. I explained in Amos v McCarron at [29] what had happened in the Magistrates Court as follows:
His counsel explained to the Court at the hearing of the charge that Mr Amos misunderstood the way the disqualification had been imposed and he thought he was no longer disqualified. The learned Special Magistrate noted that Mr Amos prevaricated, however, when first spoken to by police and that this appeared inconsistent with that explanation. When confronted with this, his counsel withdrew the submission but, whether through failure to have obtained proper instructions beforehand or other reasons, gave no other explanation of the circumstances for the driving, such as where he was going or for what purpose, all matters that may have been relevant to the issue.
Even were Mr Amos to be given the benefit of some doubt in relation to that matter, the same cannot be said of the second offence which occurred a little over two months later and probably after Mr Amos had received the summons for the first offence. He must, at that stage, have been well aware that he was wilfully disobeying a Court order that disqualified him from holding or obtaining a driver licence.
This is a case, too, where his record is relevant. The more offences of this nature he commits, the more realistic it is to see the further offences as contumacious. In this case, he has eight relevant offences on his record: six offences of driving whilst disqualified, one offence of driving whilst suspended, and one offence of driving as an unaccompanied learner driver. He has shown a stunning disobedience to the requirement to be properly licensed when he drives.
Subjective circumstances
I have set out the subjective circumstances of Mr Amos in Amos v McCarron at [38]-[56]. I do not need to repeat them, but I take them into account.
In the sentencing hearing, however, Mr Amos gave evidence and I was informed of the up-to-date position with his subjective circumstances. This was very important.
After sentence, Mr Amos was taken into custody. He applied for bail and was released on 13 December 2013. He told me that his intention then was to cease using drugs and return to employment. He also wanted to participate in the care of his child, who was born in early April 2014. He had participated in some programs, including a barista course, during his period in custody and had obtained work in the kitchen of the Alexander Maconochie Centre. Because he was released immediately when bail was granted, as was entirely appropriate, he had, however, no chance to put in place relevant mechanisms to help him achieve these objectives. Instead, he returned to the same environment in which he had previously been living and soon his old associates returned and he descended again into drug use. Indeed, he described it to me that his drug use “took off from where [he] left it” before he had been incarcerated.
On 7 July 2015, however, he was involved in matters that changed his life significantly.
[Paragraphs [33]-[38] redacted for legal reasons]
He decided that he had to stop using drugs, concentrate on his family and obtain employment. He found that difficult; he became lonely as those with whom he had associated became the people with whom he could no longer keep company and with whom he had to sever all connection if he was to remain drug free. It did lead, however, to a closer family including with his partner’s parents, whom he trusted; he saw them as people from whom he could seek advice and on whom he could rely for support and encouragement.
He also experienced difficulties, too, because the support reforming drug addicts often gain from groups, such as Alcoholics Anonymous and Narcotics Anonymous, was also a risk for him because of the fellow attendees.
He managed to connect with his counsellor, who was able to meet much of his needs, and to whom he could talk even about matters that to others he thought may seem crazy or trivial.
He was recently able to obtain employment at a supermarket where he has now had a full-time job for a couple of months. It has been a very satisfying and affirming situation. Not only does he have money from his wages but he feels a personal pride at the positive feedback he has received from customers and the trust his employer has given to him. It makes him feel worthy and proud.
His relationship with his partner and children has also improved; he no longer needs to be secretive and selective in the information he shares with his partner. He can be more honest and open. I could see him obviously sparkle in the witness box when he spoke of the way his children greet him when he comes home.
Mr Amos also has two older children from a previous relationship. He has managed to regain a connection with his son; his daughter is more reserved and less trusting at this stage. He explained, with a commendable maturity of understanding, how he plans to continue reaching out to her but to take it carefully and slowly.
It is, of course, early days yet; it is less than six months since the turnaround; it is, however, not simply an expressed intention but actual conduct. He has, though only recently, made very good use of the delay in the finalisation of this matter; that is very much to his credit and must be taken into account on sentencing.
That his rehabilitation is of a more general kind than directed explicitly of the driving offences for which I must sentence him has no limiting effect on the relevance to the sentence: WC v The Queen [2016] NSWCCA 173 at [59]-[62]. That is, rehabilitation is directed principally at the offender rather than the offence. The emphasis is, of course, on progress rather than cure.
I had a reference from the parents of the partner of Mr Amos. It was a thoughtful, realistic assessment of his situation but largely confirmed my view of the progress to rehabilitation that he had made.
The authors had no illusions about Mr Amos and his prior conduct; they described him then as “a rough and angry young man”. He was now, however, “a committed family man and father of our two granddaughters”. They said that he was honest with them and himself, “willing to seek and accept help and advice”. They had accepted him as a “valued and contributing member” of their family. Their view was that his reform was “deep rooted and real”.
I am prepared to accept their assessment as corroboration of what I was told by Mr Amos and rely on it.
Delay
The delay in sentencing is a matter to which a court must have regard, though it will not always mitigate sentence. It is not, of itself mitigatory, but may be relevant on sentence: Scook v The Queen [2008] WASCA 114 at [31].
Thus, factors concerning which must be considered when there is delay in sentencing an offender are:
·where the offence is “stale”, which requires a measure of understanding in the approach to sentencing for it and often a reduction in the punitive aspect of the sentence: R v Thorn [2016] ACTSC 217 at [121]; Ridgeway v The Queen [2016] NSWCCA 184 at [37]-[44];
·where the offender has achieved rehabilitation in the meantime which may justify mitigating the sentence: R v Todd [1982] 2 NSWLR 517 at 519;
·the uncertainty which an offender suffers not knowing which punishment will be imposed: R v Harrison (1990) 48 A Crim R 197 at 198-9;
·whether the offender has caused the delay, such as by absconding or concealing the truth about the offence, where otherwise available mitigation may be moderated as in R v Whyte [2004] VSCA 5; 7 VR 397 at 404-5;
[25]-[26], though even this will not necessarily require no mitigation to be afforded: Regina v The Queen [2004] NTCCA 9; 149 A Crim R 583 at 586-90; [11]-[32];·other consequences which have resulted from the delay, such as deterioration in the health of the offender (Leighton v The Queen [2010] NSWCCA 280 at [29]), an adverse impact of the prospects of the offender’s rehabilitation (R v BB [2005] NSWCCA 215 at [29]), the increased age of the offender, leading to lesser need for personal deterrence (R v Law [1996] 2 Qd R 63) or which will make the offender physically less able to re-offend (R v MWH [2001] VSCA 196);
·any change in sentencing standards which may require careful consideration of which standards are to apply: Radenkovic v The Queen (1990) 170 CLR 623; Green v The Queen [2006] NTCCA 22; 19 NTLR 1; Stalio v The Queen [2012] VSCA 120; R v PLV [2001] NSWCCA 282; 51 NSWLR 736; R v Major (1998) 70 SASR 488; 100 A Crim R 66; R v M, WJ [2005] SASC 272; 92 SASR 371.
The issue of cross-border offending and delay as a result is dealt with in Mill v The Queen (1988) 166 CLR 59.
In some cases, such as child sexual abuse, where the delays are common because of the nature of the offending behaviour, delay is usually regarded as irrelevant, despite intervening rehabilitation, perhaps because of the offender’s responsibility for the victim’s fear about or hesitancy in disclosing the offences: Dick (1994) 25 A Crim R 303. Not every case is so regarded: R v F (1998) 8 Tas R 88.
In this case, it seems to me that the rehabilitation achieved by Mr Amos is not only relevant, but significant, and I note that the respondent agreed. In my view, his achieved rehabilitation requires a mitigation in sentence though the sentence should recognise the recency of its achievement and encourage its continuation. He has made an apparently genuine effort towards showing decent citizenship, and becoming an honourable law abiding member of the community.
Breaches of prior Good Behaviour Orders
As I have already noted (at [10]), Mr Amos had been convicted on 15 December 2011 of driving a motor vehicle with the prescribed concentration of alcohol and trafficking in heroin. In each case, he was sentenced to terms of imprisonment, for the first offence three months, and for the second offence nine months, but both terms of imprisonment were suspended and two two-year Good Behaviour Orders were made.
Those Good Behaviour Orders were breached by the offences for which I must now sentence him in consequence of upholding the appeal.
I have set out in Amos v McCarron at [60]-[68], the facts of the offences for which the Good Behaviour Orders were made. I do not need to repeat them but incorporate them into these reasons.
I am satisfied that the convictions entered by the Magistrates Court for the two offences of driving whilst disqualified constituted a breach of the Good Behaviour Orders made on 15 December 2011.
As a result, I must, under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) cancel the Good Behaviour Orders. I have, however, a wide discretion under that section either to impose the sentence suspended on sentencing for the earlier offences or re-sentence Mr Amos.
In Saga v Reid [2010] ACTSC 59 at [99]-[101], I adopted what had been said in other cases, namely, that the failure of courts to act where there has been a clear breach of the conditions of an order of conditional release, such as a Good Behaviour Order, imposed when a sentence of imprisonment is suspended and by which the offender has avoided being sentenced to full-time imprisonment, is likely to bring such sentences into disrepute. There is no doubt that the courts must act in those circumstances.
Nevertheless, as I pointed out in Guy v Anderson [2013] ACTSC 5 at [83]-[87], there is, in this jurisdiction, no presumption in favour of imposing the original sentence that had been suspended. Thus, a court may, in an appropriate case, re-sentence the offender and that may involve imposing the same sentence, including suspension of the term of imprisonment, as originally imposed.
That re-sentencing, however, will take into account the fact that the basis on which the sentence was suspended originally and the offender permitted to serve the sentence of imprisonment in the community, was that the offender could be trusted. The breach of a Good Behaviour Order, particularly by the commission of further offences, naturally erodes that trust.
Over time, the authorities have identified as relevant a number of considerations that are appropriate in the Court formulating its response to the breach of a Good Behaviour Order.
In R v Curtis (No 2) [2016] ACTSC 34 at [18]-[19], I said:
18.These include the proportion of the term of the Good Behaviour Order that had been served without breach, any rehabilitation attained by the offender prior to the breach, the nature of the offence which breached the order, including whether it is similar to the offence for which the sentence of imprisonment, then suspended, was imposed, the relative seriousness of the offence so that the imposition of the suspended sentence would be disproportionate to the gravity of the breach offending; and, the prospects of the offender's rehabilitation.
19.Indeed, with re-sentencing, the legislation expressly applies the Crimes (Sentencing) Act 2005 (ACT), to any re-sentencing, which permits all relevant factors on sentencing to be taken into account.
For this reason, I need to have regard to the factors relevant to sentencing and the circumstances both surrounding the original sentence but also since the original sentencing.
I also note that the sentences originally imposed were concurrent sentences. See Amos v McCarron at [121].
In this case, it seems to me that the circumstances are that the sentences should be imposed but Mr Amos should be re-sentenced because of his change in circumstances.
Disqualification from holding or obtaining a licence
I need also to mention the consequences of the convictions entered in the Magistrates Court to his driver licence.
The legislature has frequently enacted a legislative response to convictions for traffic offences, such as drink driving and driving whilst disqualified, with consequences for the offender’s entitlement to have the privilege that is a driver licence and which consequences flow from the legislation and not from any order of the Court as explained in Burow v The Queen [2015] ACTCA 61; 11 ACTLR 157 at 165; [31]-[32].
That process has often caused difficulties in the way in which courts, especially appeal courts, have to deal with that issue.
In this case, the convictions entered by the learned sentencing Magistrate on 17 October 2013 triggered the operation of s 32(5) of the Road Transport(Driver Licensing) Act, which is as follows:
(5) If a court convicts a person of an offence against subsection (1) or (3), the person is automatically disqualified from holding or obtaining a driver licence –
(a) for a first offender – for 12 months or, if the court orders a longer period, the longer period; or
(b) for a repeat offender – for 24 months or, if the court orders a longer period, the longer period.
Note Under the Road Transport (General) Act 1999, s 66 (1) the disqualification of a person from holding or obtaining a driver licence (whether or not by order of a court) operates to cancel any driver licence held by the person.
Thus, upon conviction, Mr Amos became automatically disqualified from holding or obtaining a licence.
The significance is that under s 216(1) of the Magistrates Court Act 1930 (ACT), the filing of the Notice of Appeal operates as a stay. That section provides:
216 Stay of execution pending appeal in certain cases
(1) If a person (the appellant) appeals under this division –
(a) the enforcement or execution of the decision, conviction, order, sentence or penalty that is the subject of the appeal is stayed until the appeal is decided or is abandoned or discontinued; and
(b) if the appellant is in custody – the appellant may, if not detained for another reason, apply for bail under the Bail Act 1992.
There is a question, that I do not need to resolve in this case, whether the operation of s 32(5) of the Road Transport (Driver Licensing Act) is an enforcement or execution of the conviction, since it is imposed by the statute automatically and whether it is thus stayed by the commencement of the appeal.
I do not need to resolve this question for the question of the disqualification is resolved in another way, though I do note that, even had Mr Amos appealed against his convictions, there would remain a question as to the effect of s 216 of the Magistrates Court Act on the disqualification. However, it was clear from the terms of the Notice of Appeal that Mr Amos only appealed against the sentence of imprisonment, not any other orders, enforcement or execution.
Thus, he did not appeal against his conviction and he did not attempt to appeal against the disqualification, if he could; Burow v The Queen strongly suggests that he could not.
Accordingly, s 216 of the Magistrates Court Act had no relevance to the disqualification of Mr Amos and remained even after lodging the Notice of Appeal, and whatever the outcome of the appeal, disqualified from holding or obtaining a driver licence until 16 October 2015. The re-sentencing on the appeal will not affect that.
Because of the complexity of the issue, I will make a declaration to this effect as otherwise there may be a risk that some administrative process may attach the disqualification to my orders. I held such a declaration to be desirable and appropriate in cases such as Hugg v Driessen [2012] ACTSC 46; 261 FLR 324 at 333; [69].
It would be desirable if the legislature were to address this problem. It is not dissimilar to the problem identified by Penfold J in Storay v Watkins [2014] ACTSC 344.
It is also important for legal practitioners to take great care when advising their clients of the position of their client’s driver licence upon the lodgement of an appeal from the Magistrates Court and not to assume that the position is clear.
Consideration
I have regard to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act. The nature of the offences requires some measure of general deterrence. In this regard I note that, after he was sentenced, Mr Amos served very nearly two months of the sentence of imprisonment before he was granted bail.
I note that Mr Amos has not been before the courts since October 2013 for any further offences. That is important because he was disqualified from driving by virtue of his conviction and police were clearly aware of this, having intercepted him for these offences without other cause apparently drawing him to their attention.
While some specific deterrence should be built into the sentence to encourage Mr Amos to continue with his pro-social conduct, it is not significant. The rehabilitation achieved is also of significant relevance and must be taken into account.
I have regard to the pleas of guilty entered by Mr Amos. Although one of them was entered quite late, that appears to have been based on the possibility that he had a defence to the charge, namely that he had an honest and reasonable mistake as to facts which would exculpate him from the offence: CTM v The Queen [2008] HCA 25; 236 CLR 440 at 446-7; [7]. I have some hesitation in accepting this, given the facts of the offence and the response Mr Amos gave to police when questioned, but no challenge by the respondent was made to the submission that some moderation should be afforded for this.
Mr Amos is entitled to some discount for his pleas of guilty.
I take into account the matters referred to in s 33 of the Crimes (Sentencing) Act. So far as I know them, they are set out in these remarks and in Amos v McCarron.
There is no doubt that, in this case, sentences of imprisonment are appropriate and inevitable. Precisely how they are to be served is a matter that needs careful consideration and, in this case, justifies a different response to that in the Magistrates Court.
As there are multiple sentences to be imposed, I have carefully considered the length of each of the sentences to ensure that, when there are overlapping common elements between any of offences, Mr Amos is not punished twice. This is not significant in this case.
I have also considered whether the sentences should be partly or wholly concurrent because, for example, they are part of the same enterprise or otherwise. There are, in this case, no particular reasons of that kind as to why there should be any concurrency.
I then reviewed the length of the term of imprisonment arrived at to ensure that the principle of totality is respected and that the total sentence is adequate to reflect the criminality of the offences committed but not more than that, that the total sentence is not crushing and leaves open the realistic prospect of reform and hope for the achievement of Mr Amos’s goals. This has required me, in this case, to adjust the cumulation or concurrency of individual sentences.
Mr Amos, please stand:
1. I confirm the convictions entered on 17 October 2013 of you as a repeat offender driving whilst disqualified on 19 October 2012 (CC2012/9508) and 28 December 2012 (CC2011/11161).
2. I confirm the cancellation on 17 October 2013 of the Good Behaviour Orders made on 15 December 2011.
3. I re-sentence you for the offence of trafficking in heroin on 2 January 2011 (CC2011/3723) to nine months imprisonment to commence on 20 December 2016 to take account of the period in custody you have already served.
4. I re-sentence you for the offence of driving on 25 May 2011 with more than the prescribed concentration of alcohol (CC2011/5802) to three months imprisonment to commence on 20 December 2016, that is to be wholly concurrent of the sentence for trafficking in heroin.
5. I sentence you to two months imprisonment for the offence of driving while disqualified as a repeat offender on 19 October 2012 (CC2012/9508) to commence on 20 August 2017, that is to be cumulative as to one month on the sentence for trafficking in heroin.
6. I sentence you to three months imprisonment for the offence of driving whilst disqualified as a repeat offender on 28 December 2012 (CC2012/11161) to commence on 20 September 2017, that is to be cumulative as to two months on the offence of driving whilst disqualified as a repeat offender on 19 October 2012.
7. That is a total sentence of 12 months imprisonment.
8. I suspend that sentence today, 15 February 2017, for two years.
9. 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 two years with a probation condition that you be under the supervision of the Director-General or her delegate for 12 months, or such lesser period as the person supervising you considers to be appropriate, and obey all reasonable directions of that person.
10. I direct you to report by 4:00 pm today, 15 February 2017, to ACT Corrective Services, Level 1, 249 London Circuit, Canberra City, ACT for the purposes of arranging probation supervision.
11.I declare that, under s 32(5) of the Road Transport (Driver Licensing) Act 1999 (ACT) your automatic disqualification from holding or obtaining a licence in respect of the offence of driving whilst disqualified as a repeat offender on 19 October 2012 (CC2012/9508) commenced on 17 October 2013 and ended on 16 October 2015 and for the offence of driving whilst disqualified as a repeat offender on 28 December 2012 commenced on 17 October 2013 and ended on 16 October 2015.
[His Honour then spoke directly to Mr Amos]
Mr Amos, that is the formal order. What I have done is wrapped up everything currently outstanding. I have imposed the nine month sentence for the trafficking of heroin and the driving with a prescribed concentration of alcohol that Magistrate Doogan suspended because these further offences breached that order. Then I have added the two months and the three months imprisonment, but made them largely concurrent over the period so that there is a maximum period of 12 months, but I have suspended that today. After the two months you have already served in prison, you now have therefore about 10 months at risk under the suspended sentence.
The Good Behaviour Order, to which you have been subject you have been subject to before, and therefore understand its significance and how it operates. Basically, if you commit any further offences punishable by imprisonment you can be brought back before the Court and the 10 months or so can be imposed, and you can be sent back to prison as well as being sentenced for those other offences that you commit.
I have made a probation condition, which I have done for two reasons. Your reformation, which I am very impressed with and, as you can see, I have taken very substantially into account, is to your credit, but it is still early days. Life can get rough and it can get difficult.
The first reason is a degree of control to allow you to be supervised to prevent you from going off the rails, and that might include directions for you to do things or to undertake conduct that is thought to be of assistance to you to make sure that you do not relapse.
The second is that there is someone independent who is available to you. It is evident that you have good support from your partner's parents, but sometimes there are things that you do not want to talk to other people about or, more importantly, where you really do need serious assistance, and a probation officer is someone who has knowledge of agencies and resources that might be available to you that ordinary members of the community might not know about, and can direct you into EveryMan, or to Directions ACT, or somewhere where you can be provided with the assistance that you may need.
The attachment to your family is really critical. If you want to be a real father, a role model to your daughters and to your son, and to regain the attachment to your eldest daughter, then you are going to have to live a pro-social life, as I described it as “an honourable citizen”. There is a lot of motivation for that. You have started the journey but it is, at this time, limited. You will see around town, probably even in your supermarket, some of your former associates, and you just have to be strong and turn away from that.
The drugs will lead you back into all sorts of problems, and you have had an unfortunate experience that you can put down to knowing what it can lead to and why you should continue on the course that you have now determined should be the one on which you are going to follow. I have every expectation that the courts will not see you again.
You are now old enough to have grown past the drug culture and hopefully you learned your lesson. The leniency that I have extended, with the co-operation of the Crown, who has obviously seen the opportunity for you to be a good member of society, and that society will thereby be protected, is the best way to go. I genuinely wish you good luck with that.
| I certify that the preceding ninety-nine [99] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Refshauge. Associate: Date: 6 March 2017 |
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