Brown v Smorhun (No 2)
[2015] ACTSC 347
•30 October 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Brown v Smorhun (No 2) |
Citation: | [2015] ACTSC 347 |
Hearing Date(s): | 6 October 2015 |
DecisionDate: | 30 October 2015 |
Before: | Refshauge ACJ |
Decision: | 1. The conviction of Corey Brown for driving whilst disqualified on 6 October 2013 is confirmed. 2. Corey Brown is sentenced to two months imprisonment from 1 September 2015. 3. Corey Brown is disqualified from holding or obtaining a driver license for 12 months from today. 4. The conviction of Corey Brown for driving whilst disqualified on 15 August 2014 is confirmed. 5. Corey Brown is sentenced to four months imprisonment to commence on 1 November 2016. 6. The first three months of that sentence be served by periodic detention, the first period to commence on 6 November 2015 when Corey Brown is to report at 7 pm to the Symonston Periodic Detention. The last period will commence on 29 January 2016. 7. Corey Brown is disqualified from holding or obtaining a driver license for 12 months, to commence on 30 October 2016. 8. The sentence of imprisonment in order 7 be suspended on 31 January 2015 for nine months. 9. Corey Brown is 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 nine months from 1 February 2016, for a period of nine months, with a probation condition that he be under the supervision of the Director General or her delegate and obey all reasonable directions of the person delegated to supervise him, especially as to counselling and treatment for drug and alcohol use. 10. The conviction of Corey Brown for driving whilst he had a drug in his oral fluid on 15 August 2014 is confirmed. 11. Corey Brown is fined $700 with 12 months from today within which to pay that fine. 12. The automatic period of disqualification from holding or obtaining a license is reduced to 12 months. That disqualification is to commence on 30 October 2017. 13. The conviction of Corey Brown for the possession of drugs is confirmed. Corey Brown is fined $500 with 12 months from today within which to pay. |
Catchwords: | APPEAL – Jurisdiction, practice and procedure – appeal from Magistrates Court – appeal against sentence CRIMINAL LAW – Jurisdiction, practice and procedure – judgment and punishment – sentencing – traffic offences – driving whilst disqualified from holding or obtaining a driver licence – driving with a prescribed drug in oral fluid – possession of a drug of dependence – significant criminal history |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) |
Cases Cited: | Brown v Smorhun [2015] ACTSC 334 |
Parties: | Corey Adam Brown (Appellant) Luke Smorhun, Andrew McKellar and Jason Craig (Respondents) |
Representation: | Counsel Mr T Sharman (Appellant) Ms P Burgoyne-Scutts (Respondent) |
| Solicitors Sharman Lynch Solicitors (Appellant) ACT Director of Public Prosecutions (Respondents) | |
File Number(s): | SCA 76 of 2015 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Special Magistrate Doogan Date of Decision: 1 September 2015 Case Title: Smorhun, McKellar and Craig v Brown Court File Number(s): CC13/10746, CC14/8676, CC14/8677, CC15/1923 |
REFSHAUGE J:
On 1 September 2015, I upheld the appeal of Corey Adam Brown from sentences imposed in the Magistrates Court for two offences of driving whilst disqualified from holding or obtaining a license and certain other offences: Brown v Smorhun [2015] ACTSC 334. The upholding of the appeal required me to resentence him for the various offences. I proposed certain orders in my reasons for upholding the appeal and invited submissions from counsel as to those orders. As a result of the submissions, I have come to the view that I can make certain orders. The effect of those orders is to restructure the sentence that was originally imposed and, in particular, to change the way in which it is to be served.
Part of that restructure to the sentence, however, requires Mr Brown to serve part of the sentence of imprisonment. The offences were serious offences and no sentence other than a sentence of imprisonment is appropriate. In my view, however, for the reasons set out in the reasons for upholding the appeal, it was justified for me to impose a different sentence. Thus, he is to be sentenced for imprisonment for each of the offences of drive while disqualified. Part of the restructure, however, is that the sentence on the second offence should be served by a periodic detention for three months, followed by a suspended sentence.
Mr Brown has been assessed in a Pre‑Sentence Report for suitability for periodic detention, as is required in the Crimes (Sentencing) Act 2005 (ACT). He has, however, been assessed as unsuitable, although he has signed an undertaking to comply with the periodic detention obligations.
The reasons for his assessment as unsuitable are because of drug use and employment obligations. I am satisfied that the drug use is not an impediment to a direction that he serve part of the sentence of imprisonment for the second offence of driving whilst disqualified by periodic detention for the following reasons.
Firstly, he has completed a drug driving course, which he completed in August 2015; secondly, he has been engaged in counselling with Directions; thirdly, he has now been in custody for two months; fourthly, he has come, albeit late, to the realisation that he has to address his drug use and acknowledges that he has been involved in drug use in the past, and that satisfies me that he is likely to address that issue appropriately. As to the work issues, I have accepted the assurance from his counsel that he understands the circumstances and will be able to deal with them in the context of his employment.
Mr Brown, please stand.
I confirm the conviction for driving whilst disqualified on 6 October 2013. I sentence you to two months imprisonment from 1 September 2015. Had you not pleaded guilty I would have sentenced you to three months imprisonment.
I disqualify you from holding or obtaining a driver license for 12 months from today.
I confirm the conviction for driving whilst disqualified on 15 August 2014. I sentence you to four months imprisonment to commence on 1 November 2016. Had you not pleaded guilty I would have sentenced you to five months’ imprisonment.
I direct the first three months of that sentence be served by periodic detention, the first period to commence on 6 November 2015 when you are to report at 7 pm to the Symonston Periodic Detention Centre. The last period will commence on 29 January 2016.
I disqualify you from holding or obtaining a driver license for 12 months, to commence on 30 October 2016.
I direct that the sentence of imprisonment be suspended on 31 January 2015 for nine months.
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 nine months from 1 February 2016, with a probation condition that you be under the supervision of the Director-General or her delegate and obey all reasonable directions of the person delegated to supervise you, especially as to counselling and treatment for drug and alcohol use.
I confirm the conviction for driving whilst you had a drug in your oral fluid on 15 August 2014.
I fine you $700 and allow you 12 months from today within which to pay that fine.
I reduce the automatic period of disqualification from holding or obtaining a license to 12 months. That disqualification is to commence on 30 October 2017.
I confirm your conviction for the possession of drugs. I fine you $500 and allow you 12 months from today within which to pay.
[His Honour then spoke directly to Mr Brown]
Mr Brown, that is the formal order. You probably heard most of what counsel and I have said about it in argument earlier. I am required to explain, briefly, what I have done.
These are serious offences. If people can drive whilst disqualified there is no point in courts disqualifying them and the regulation of driving in the community will be put at risk. You have got a shocking history for that. The Magistrate was right to say that you seem to disregard that obligation. You now know that the courts will view that seriously and there will be consequences.
I understand that, not only in Canberra, but in the building industry, having a licence and being able to drive is an important matter. Unfortunately you have forfeited that right because of behaviour on the roads and behaviour that has included driving with alcohol, and on occasions that people would regard as being inappropriate and putting other people at risk. Nevertheless you are entitled to a just sentence and I have now changed the sentence to what I regard as a just sentence.
Your full‑time imprisonment will end tomorrow. Thereafter there is three months of periodic detention. That is weekend detention. That is an imposition. Two and a half days out of week sounds not very hard but it is every week, and if you do not turn up, if you turn up late, if you turn up drunk, if you turn up with drugs in your system, then you will be sent away and that time will be added on at the end. If you do that twice, though, you will automatically have the periodic detention cancelled and you will spend the rest of that period of time in full‑time custody. It is a matter for you. You are master of your destiny. You are smart enough and you are in control of yourself enough to be able to manage that.
Thereafter it is suspended for a period of nine months. The period of nine months is really because I think you need a level of control to make sure that you do not fall back into the bad old ways by getting in a car when you have got no right to be in a car. You also need to address your drug use. I do not say you are an addict. I have no idea. All I know is there has been a level of denial, which does not seem, to me, consistent with the facts as shown in the evidence.
You have started some counselling with Directions, that is a very good organisation. They can assist you, if you work with them, and, hopefully, at the end of that nine months, all this will be behind you and you can get on with being the excellent employee, the excellent partner and the excellent father that, no doubt, you intend to be and want to be, and not keep mucking around with the criminal justice system – which is not to your benefit, it is not to our benefit and it is not the community’s benefit.
Hopefully the structure of this sentence will be appropriate for you. First of all, the periodic detention. Turn up, turn up alcohol free, turn up drug free, on time, every week for the next three months, starting from next Friday. Secondly, the Good Behaviour Order requires you to be under some supervision. You obey the directions and you do not commit any offences punishable by imprisonment, for 9 months. If you fail to obey the directions of your parole officer or if you commit any further offences, then you will be brought back before me and I will sentence you again. What I do depends on what it was you did and what you have done in the meantime but it includes the possibility of sending you back to prison.
So as long as you understand those things, it is within your own control and I have no doubt that, if you put your mind to it, the criminal justice system will not be troubled by you again, but it is a matter for you.
| I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Refshauge. Associate: Date:16 November 2015 |