Amos v McCarron (No 3)
[2019] ACTSC 223
•9 August 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Amos v McCarron (No 3) |
Citation: | [2019] ACTSC 223 |
Hearing Date: | 9 August 2019 |
DecisionDate: | 9 August 2019 |
Before: | Mossop J |
Decision: | See [13] |
Catchwords: Cases Cited: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – resentence – breach of good behaviour order – offender taking steps towards drug and alcohol rehabilitation – whether suspended sentence should be imposed – resentence Amos v McCarron (No 2) [2017] ACTSC 46 |
Parties: | Adam Amos (Appellant) Theresia McCarron, Roger Watts and Suzanne White (Respondents) |
Representation: | Counsel S Platis (Appellant) P Dixon (Respondents) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondents) | |
File Number: | SCA 86 of 2013 |
MOSSOP J
Introduction
Adam Amos has been committed to this court to deal with a breach of a good behaviour order imposed by Refshauge J following a successful appeal against sentence in 2017: see Amos v McCarron (No 2) [2017] ACTSC 46. That appeal was against sentences imposed in 2013.
The good behaviour order was imposed for a period of two years on 15 February 2017 and was the condition upon which four sentences of imprisonment were suspended. Those sentences were:
(a)a sentence of nine months’ imprisonment for trafficking heroin on 2 January 2011 (CC2011/3723);
(b)a sentence of three months’ imprisonment for driving on 25 May 2011 with more than the prescribed concentration of alcohol (CC2011/5802);
(c)a sentence of two months’ imprisonment for the offence of driving while disqualified as a repeat offender on 19 October 2012 (CC2012/9508); and
(d)a sentence of three months’ imprisonment for the offence of driving while disqualified as a repeat offender on 28 December 2012 (CC2012/11161).
As a result of partial concurrency the aggregate sentence was a period of 12 months. The offender had served approximately two months of that period in custody.
On 9 April 2019 in the Magistrates Court, the offender was given a suspended sentence for two charges:
(a)CC2018/14095: driving with a prescribed drug in his oral fluid on 27 September 2018; and
(b)CC2018/14055: driving with a prescribed drug in his oral fluid on 20 May 2018.
At that time Mr Amos was also given a good behaviour order on charge CC2018/7668: speeding in a non-school zone by more than 15 km/h and not more than 30 km/h on 20 May 2018.
There were also two charges dating from 2014 which were dealt with by the Magistrates Court. These were:
(a)CC2014/9378: driving while disqualified being a repeat offender, which received an 18 month good behaviour order and a two-year period of disqualification; and
(b)CC2014/9379: driving with a prescribed drug in his oral fluid as a repeat offender, which received an 18 month good behaviour order with a five-year period of disqualification.
Only the two 2018 driving with prescribed drug offences involved breaches of the good behaviour order. On both occasions the offender had both methamphetamine and marijuana in his system.
As at May and September 2018, the offender had been subject to the good behaviour order for a period of 15 months and 19 months respectively.
Approach to dealing with breach of the good behaviour order
Counsel for the offender submitted that this court should adopt a similar approach to the Magistrates Court, namely permit the offender to serve his sentence in the community. Particular emphasis was placed upon the delay in bringing some of the proceedings, a circumstance which clearly requires a measure of understanding and some flexibility of approach.
There is evidence that since April 2019 he has participated in the Canberra Recovery Services (CRS) program run by the Salvation Army. That has included a period of detoxification and a period of full-time residential treatment between 9 April 2019 and 23 July 2019. After that he has been permitted to return home but is required to attend counselling at CRS two to three days a week with a further check in on one other occasion per week. He is also required to attend Alcoholics Anonymous and Narcotics Anonymous meetings. He is likely to commence an eight-week day program run by Arcadia House later this month.
In light of the age of the offending and the fact that the majority of the sentence imposed by Refshauge J was for offending unrelated to the offending which put him in breach of the good behaviour order and the good progress that he has made with his rehabilitation, counsel for the Crown did not submit that the suspended sentences should simply be imposed. Rather, he submitted that it would be appropriate to impose a sentence which permitted the offender to continue with his rehabilitation in the community.
In my view it is appropriate to cancel the good behaviour order and resentence the offender. I have had regard to the circumstances identified in Refshauge J’s decisions and to the information concerning his rehabilitation provided by Canberra Recovery Services as well as the information about his personal circumstances in the court duty report and Court Alcohol and Drug Assessment Service (CADAS) reports which were put before the court. In my view it is appropriate to resentence him in a way which recognises that he only committed the offences in the second half of his period of good behaviour, and in a way that maximises the incentives for him to complete the rehabilitation with which he is presently engaged. The sentence will be such that it may readily be imposed if there is a breach of the good behaviour undertaking within the modest period during which it is in effect.
Orders
The orders of the Court are:
1.The good behaviour order entered into as a result of the orders made on 15 February 2017 is cancelled.
2.The offender is resentenced as follows:
(i)on the charge of trafficking in heroin on 2 January 2011 (CC2011/3723) he is sentenced to three months’ imprisonment;
(ii)on the charge of driving with more than the prescribed concentration of alcohol on 25 May 2011 (CC2011/5802) he is sentenced to one month imprisonment concurrent with the previous sentence;
(iii)on the charge of driving while disqualified as a repeat offender on 19 October 2012 (CC2012/9508) he is sentenced to one month imprisonment concurrent with the previous sentence; and
(iv)on the charge of driving while disqualified as a repeat offender on 28 December 2012 (CC2012/11161) he is sentenced to one month imprisonment concurrent with the previous sentence.
3.Each of the sentences is suspended upon entry into an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of six months which will include the following additional conditions:
(i)the offender is to be subject to a probation condition that he be under the supervision of the Director-General for a period of six months and obey all reasonable directions of that person;
(ii)that he not consume illicit substances; and
(iii)that he provide a sample of hair, saliva, blood or urine for analysis if requested by a corrections officer.
I note that a separate good behaviour order is required to be entered into for each offence.
| I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Sentence of His Honour Justice Mossop. Associate: Date: 24 September 2019 |
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