Director of Public Prosecutions v Allred
[2023] ACTSC 184
•17 July 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Allred |
Citation: | [2023] ACTSC 184 |
Hearing Date: | 7 July 2023 |
Decision Date: | 17 July 2023 |
Before: | Refshauge AJ |
Decision: | (1) Jackson Cory Allred be convicted of driving at police (CAN 7995/2022) and be sentenced to 13 months imprisonment to commence on 16 January 2023 and end on 15 February 2024. (2) Jackson Cory Allred be convicted of dishonestly driving motor vehicle without consent (CAN 750/2023) and be sentenced to 12 months imprisonment to commence on 16 February 2024 and end on 15 February 2025. (3) Jackson Cory Allred be convicted of driving while disqualified (repeat offender) (CAN 2106/2023) and be sentenced to 6 months imprisonment to commence on 16 November 2024 and end on 15 May 2025. I direct that the automatic 24 month driving disqualification commence today. (4) Jackson Cory Allred be convicted of aggravated dangerous driving (SC CAN 3/2023) and be sentenced to 15 months imprisonment to commence on 16 February 2025 and end on 15 May 2026. I direct that the 12-month automatic driving disqualification commence today. (5) Jackson Cory Allred be convicted of driving while disqualified (repeat offender) (CAN 7990/2022) and be sentenced to 9 months imprisonment to commence on 16 February 2026 and end on 15 November 2026. (6) A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Jackson Cory Allred in respect of the primary offence of Driving at Police (CAN 7995/2022) of which he has been convicted and for which he has been sentenced to 12 months imprisonment. (7) That Order be extended to the offences of Dishonestly Driving a Motor Vehicle Without Consent (CAN 750/2023), Driving Whilst Disqualified (CAN 2106/2023), Aggravated Dangerous Driving (SC CAN 3/2023), and Driving Whilst Disqualified (CAN 790/2022) of which Jackson Cory Allred has been convicted and for which he has been sentenced, and which are associated offences of the primary offence. (8) It be noted that convictions and sentences imposed for the primary and associated offences have been recorded and are hereby incorporated into the Drug and Alcohol Treatment Order in the Custodial Part of the Order. (9) The Drug and Alcohol Treatment Order be for 3 years and 4 months from today, 17 July 2023, to 15 November 2026. (10) The Treatment and Supervision Part of the Drug and Alcohol Treatment Order be for 2 years from today,17 July 2023, until 16 July 2025. (11) The Custodial Part of the Drug and Alcohol Treatment Order for the primary and associated offences be hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 17 July 2023, until 15 November 2026. (12) Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), Jackson Cory Allred be required to sign an undertaking to comply with the offender’s Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Treatment and Supervision Part of the Drug and Alcohol Treatment Order, 17 July 2025, until the end of the total sentence, 15 November 2026, with a probation condition that he accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him including as to alcohol and drug testing, counselling and treatment. (13) For the Treatment and Supervision Part of the Drug and Alcohol Treatment Order, the core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed: a. Jackson Cory Allred undertake any program, treatment or counselling, alcohol and drug testing or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where he resides, with whom he associates and his attendance from time to time; b. Jackson Cory Allred not return a positive test sample under alcohol and drug testing; and c. Jackson Cory Allred comply with any directions of the Court from time to time about attendance at Court in person or by electronic means. (14) Jackson Cory Allred be directed to sign a sealed copy of this Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this Order is in force to before he leaves the Court precincts. (15) Jackson Cory Allred be directed to appear in Court in person on Friday 21 July 2023 at 11:30 am. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – driving at police – dishonestly driving motor vehicle – driving while disqualified – aggravated dangerous driving – recklessness in driving at police – rehabilitation – periods of abstinence and non-offending – subjective circumstances – Suitability Assessments – Drug and Alcohol Treatment Order imposed |
Legislation Cited: | Crimes Act 1900 (ACT) s 29A Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 12A, 33, 46J, 80S, 80W, Table 46K Criminal Code 2002 (ACT), s 318 Road Transport (Driver Licensing) Act 1999 (ACT) s 32 Road Transport (Safety and Traffic Management) Act 1999 (ACT) ss 7, 7A |
Cases Cited: | Blundell v The Queen [2019] ACTCA 34 Callaghan v The Queen [2006] NSWCCA 58 Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 Mann v Tremethick(No 2) [2023] ACTSC 31 R v Blackburn (No 1) [2020] ACTSC 373 R v Collins [2019] ACTSC 302 R v Connors [2022] ACTSC 374 R v Crawford (No 1) [2020] ACTSC 245 R v Crawford [2022] ACTSC 166 R v Goolagong (No 2) [2021] ACTSC 131 R v Guy [2022] ACTSC 373 R v Law [2021] ACTSC 351 R v Massey (No 3) [2021] ACTSC 156 R v McHughes [2021] ACTSC 92 R v Po’oi [2021] ACTSC 151 R v Rosewarne [2021] ACTSC 21 R v Seymour [2021] ACTSC 152 R v Williams [2012] ACTSC 288 |
Parties: | Director of Public Prosecutions ( Crown) Jackson Cory Allred ( Offender) |
Representation: | Counsel E Bayliss ( Crown) P Bevan ( Offender) |
| Solicitors ACT Director of Public Prosecutions Bevan & Co ( Offender) | |
File Numbers: | SCC 314 of 2022 SCC 315 of 2022 SCC 48 of 2023 SCC 49 of 2023 |
REFSHAUGE AJ:
Introduction
1․On 27 July 2022, Jackson Allred drove a motor vehicle which had earlier been stolen. He himself had been disqualified from holding or obtaining a driver licence. He drove it until it collided with a guard rail.
2․Later in August 2022, Mr Allred drove another motor vehicle through a number of streets in Tuggeranong, ACT, at times quite dangerously. Police tried to intercept him, but he evaded them after recklessly driving at police. Later, the vehicle became bogged in a green belt in Gowrie, ACT, and, as Mr Allred left the scene on foot, he was chased by police and arrested.
3․He has been charged with dishonestly driving a motor vehicle without the owner's consent, aggravated dangerous driving, driving at police, and two offences of driving whilst disqualified as a repeat offender. He has pleaded guilty to those offences and is now to be sentenced. He has sought that a Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) be made for him to serve any sentence of imprisonment imposed on him.
4․At the sentencing, Ms Emma Bayliss, who represented the prosecution very professionally, tendered without objection the Prosecution Tender Bundle. It contained the prescribed cover sheet, a copy of the indictment, committal documents and transfer documents, an Agreed Statement of Facts, Mr Allred's criminal history, the Eligibility Assessments (as to which see R v McHughes [2021] ACTSC 92 at [6]-[7]) of both Alcohol and Drug Services and Forensic Mental Health, a letter of acceptance dated 26 June 2023 from the Canberra Recovery Hub, a certificate dated 26 August 2022 from the ACT Government Analytical Laboratory, photographs of the motor vehicle Mr Allred had driven on the second occasion, a warrant of imprisonment dated 16 August 2022 from the Sentence Administration Board, and a recommittal order dated 16 August 2022 from the Sentence Administration Board.
5․Because Mr Allred had sought the making of a Treatment Order, the Court had directed that Drug and Alcohol Treatment Assessments (Suitability Assessments) under s 46J of the Sentencing Act be prepared. They were the Drug and Alcohol Sentencing List Suitability Assessment Report dated 28 June 2023 of the Alcohol and Drug Services and the Drug and Alcohol Treatment Assessment dated 27 June 2023 of ACT Corrective Services. These were also included in the Prosecution Tender Bundle.
6․It also included a DVD of footage from a dashcam - that is, the dashboard camera fitted to the dashboard of the police vehicle - from the police vehicle, which followed Mr Allred. Part of the DVD video was then played to the Court.
7․Mr P Bevan, who appeared also very professionally for Mr Allred, tendered without objection two Statements of Attainment for courses in safe food handling/preparation and working safely in the construction industry, which Mr Allred had completed while in custody.
8․None of the contents of any of these tendered items were challenged.
9․Mr Allred gave evidence and was cross-examined. His aunt also gave evidence, but was not cross-examined.
10․Both counsel provided helpful written submissions on sentence and also valuably expanded on them in oral submissions.
11․From this material, the Court makes the following findings.
The Facts
12․On 24 July 2022, a Ford Territory motor vehicle was stolen during an aggravated robbery from premises on Oaks Estate, ACT. There is no evidence that Mr Allred stole the motor vehicle, nor that he was involved in the robbery. He did not, however, have the owner's permission to drive the motor vehicle subsequently.
13․Mr Allred was seen driving the Ford motor vehicle south along Gungahlin Drive, Lyneham, ACT on 27 July 2022. He drove off the road and collided with a guard rail, which caused the vehicle to stop. It also inflated the steering wheel airbag, impacting on Mr Allred's face and him leaving some of his blood on it. DNA testing showed that it was his blood.
14․He left the vehicle and ran from it. These were the facts that led to the charge of dishonestly driving a motor vehicle without the owner's consent.
15․On 14 August 2022, police responded to a call at about 11.40 am from a citizen who had seen an Audi motor vehicle being driven erratically on Heagney Crescent, Chisholm, ACT. The citizen described the driving as follows: ‘[the driver], he's all over the road. He's passed out and went onto my side of the road, his window’s all smashed, his boot's open, he's driving like an idiot.’
16․The citizen followed the vehicle, keeping on the phone with police. At about 11.52 am, police in a marked police vehicle saw the Audi vehicle and commenced pursuing it.
17․Police attempted on two occasions to deploy tyre-deflation devices, but Mr Allred evaded them.
18․Police, now in two cars, followed Mr Allred who was driving the Audi through a number of streets. At one stage, police activated their emergency lights and sirens. The pursuit was recorded on the dashcam fitted to the police motor vehicle, and, as noted above (at [6]), a portion of it was played in Court. The commentary showed that, between periods of dangerous driving, Mr Allred did drive appropriately and within the speed limit and that the traffic was moderate or low at various points in time.
19․He did, however, cross to the incorrect side of the road at times and drove in excess of the speed limit, crossing solid road marking lines. At one stage, as the Audi motor vehicle approached an area where police were standing in full police uniform, Mr Allred drove the motor vehicle onto the median strip to evade them. As a police officer ran to intercept him and pick up the tyre-deflation devices and redeploy it in the direction of the Audi motor vehicle, Mr Allred drove in his direction and recklessly drove towards him, though swerving at the last minute to avoid colliding with him. This was the basis of the charge of driving at police and being reckless about the police officer's safety.
20․Mr Allred then drove away and drove onto the incorrect side of the Monaro Highway, which had then a line of heavy traffic. Police decided it was too dangerous to continue the pursuit and discontinued it.
21․This caused police to direct traffic from where the Audi motor vehicle was being driven while it was driving erratically between the south-bound lanes.
22․Later, at the intersection of Monaro Highway and Tralee Street, Hume, ACT, police resumed the pursuit, re-activating their vehicles’ emergency lights and sirens. Again, Mr Allred drove the Audi motor vehicle across the median strip into oncoming traffic, but did not stop as the lights and sirens were directing him to do.
23․The police officer then drove at the Audi motor vehicle, causing Mr Allred to cross the median strip and return to the correct side of the road. Police followed the Audi motor vehicle, but it later turned into Bugden Avenue, Fadden, ACT, and the police lost sight of it.
24․Later again, police on patrol saw the motor vehicle in Castleton Crescent, Gowrie, ACT, but it was driven onto the footpath on the green belt near the playing fields, and police again lost sight of it.
25․Later, police found the Audi motor vehicle to be bogged in the green belt at Gowrie. Mr Allred got out of the motor vehicle and walked away along the footpath on the green belt, followed by police. Mr Allred said that he had a firearm and threatened to shoot himself.
26․Police, however, continued to follow him. He walked onto the front yard of a residence, and police arrested him. He was tested for alcohol, but the result was negative. He was tested for drugs, and the result was positive.
27․Mr Allred was taken to hospital by ambulance, and a sample of his blood was taken. It was analysed by the ACT Government Analytical Laboratory and was shown to contain methamphetamine.
28․These were the facts that led to the charge of aggravated dangerous driving. The circumstances of aggravation were that he failed to stop for police and that he was driving with a drug in his oral fluid.
29․At the time of both driving offences, Mr Allred was on parole and on bail.
30․On 14 April 2021, Mr Allred had been convicted of being an unlicensed driver, having never held a driver licence, and was disqualified from holding or obtaining a driver licence for three years. Accordingly, at the time of all of the offences, he was a disqualified driver, and he was also charged with two offences of being a disqualified driver as a repeat offender.
The Proceedings
31․On 14 August 2022, Mr Allred was arrested as noted above (at [30]). Police refused bail and he appeared in the ACT Magistrates Court the next day. He did not apply for bail and was remanded in custody. He was charged with a total of 10 offences arising out of the events of 14 August 2022.
32․The proceedings were adjourned to 25 August 2022, when he entered pleas of not guilty to the charges. He remained in custody.
33․On 2 November 2022, he was committed for trial to the Supreme Court on the indictable charges and the summary charges were transferred to be dealt with as related charges. He remained in custody.
34․On 28 February 2023, the charge of dishonestly driving a motor vehicle without the owner's consent was preferred in the Magistrates Court and he pleaded guilty. He was committed to this Court for sentence. He remained in custody.
35․In this Court, the proceedings for the charges for which a plea of not guilty had been entered were listed for sentence and, on 9 February 2023, a Criminal Case Conference was held. A large number of the offences were discontinued, and Mr Allred pleaded guilty to the charges for which he now stands to be sentenced.
36․As noted above, Mr Allred was on parole at the time of the offences. That parole order related to various driving and dishonesty offences dealt with in the ACT Magistrates Court on 14 April 2021. He was sentenced to a term of imprisonment for two years and granted parole on 21 September 2021 until 29 December 2023.
37․He breached that parole order and was directed to serve the balance of the term, being five months and four days, from 16 August 2022 to 19 January 2023. This period is accordingly not to be included in the period for which he has been in custody on these current offences: see R v Po’oi [2021] ACTSC 151 at [44].
38․Thus, although he has now been in custody for 340 days, only 182 - that is, the period before the sentence for which the parole order was made and since that sentence then imposed on the revocation of the parole order had ended until today – are to be taken into account as pre-sentence custody, though the rest of the sentence as actually served in custody is still relevant to the totality of the sentence.
39․After his plea of guilty following the Criminal Case Conference, Mr Allred requested that any sentence of imprisonment be served by a Treatment Order and he was referred to the Drug and Alcohol Sentencing List. On 5 May 2023, Suitability Assessments were directed to be prepared and the proceedings listed for sentence.
40․He has remained in custody.
The Offences
41․While the finding of the facts of offences is essential for a Court sentencing an offender, it is also important, as prescribed in s 33(1)(a) of the Sentencing Act, that the nature and circumstances of the offences be considered and that the Court have regard to them as well as other matters.
42․In particular, the maximum penalty for each offence is important. It is the legislative prescription of the penalty for the worst category of the offence. It is a basis for comparison as to the relative seriousness of the offence and other offences and, combined with all the other relevant factors, is a yardstick.
43․Further, while also part of current sentencing practice (see s 33(1)(za) of the Sentencing Act) it is important to have regard to the specific particulars of the offending. Most offences can be committed in a wide variety of ways and in a wide diversity of circumstances. The Courts over time have identified particular such matters that aggravate or mitigate the seriousness of a particular version of an offence, and this allows the Court to assess the nature and circumstances of the offence for which a sentence must be imposed.
44․Dishonestly driving a motor vehicle without the owner's consent is an offence against s 318(2) of the Criminal Code 2002 (ACT), which sets a maximum penalty of five years imprisonment or a fine of $80,000 or both.
45․It's an offence which does quite often appear in this Court, and much consideration has been given to it, in particular in R v Connors [2022] ACTSC 374 at [63]. The Court there set out relevant factors taken from an analysis of various cases. It is not necessary to list these factors here in full, but to address those that are relevant to the occurrence of these offences.
46․The driving of a stolen motor vehicle is more serious than riding in it, though both are the same offence and attract the same maximum penalty. Here, Mr Allred was the driver, and therefore the offence is more serious. The vehicle was recovered, which is less serious, but it was damaged, as it had collided with a guard rail, and the steering wheel airbag had inflated, showing that the impact was significant.
47․The time during which it was driven and the distance travelled is also relevant. There was little evidence about this, but it must have been some distance, for it was driven along Gungahlin Drive, Lyneham, ACT, which is not a suburban residential road, and so it must have been driven from somewhere onto that road, but there was no evidence of this. In the absence of fuller evidence, this cannot significantly aggravate the offence.
48․While there is no specific evidence of inconvenience to the owner, it was taken from a residence at Oaks Estate, where there is limited public transport, and so there will, in any event, be some inconvenience. In any event, some inconvenience can be assumed: see R v Blackburn (No 1) [2020] ACTSC 373 at [60].
49․The value of the vehicle is important. The only information about this in the evidence is of the make of the vehicle. It is not a luxury car, but all cars are relatively expensive. Indeed, a motor vehicle is often the largest purchase of the owner apart from a home.
50․The manner of driving is important. There was no evidence about this other than that it was involved in a collision, but the cause of that is not in evidence. There appears to have been no passengers in the vehicle.
51․Aggravated dangerous driving is made an offence by ss 7 and 7A of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) and prescribes a maximum penalty of five years imprisonment or a fine of $80,000 or both. It also attracts an automatic disqualification from holding or obtaining a licence for 12 months.
52․The circumstances of aggravation were pleaded in this case to be a failure of Mr Allred to stop despite the pursuit and the following police activating their vehicle's emergency lights and signs and the driving by him with a drug in his oral fluid. Other matters set out in s 7A of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) were not pleaded.
53․The relevant factors have been set out in R v Seymour [2021] ACTSC 152 at [38]-[43] and R v Massey (No 3) [2021] ACTSC 156 at [34]-[37].
54․Again, all that is necessary is for the Court to reference the relevant factors.
55․The manner of driving is relevant, though any particular aggravated circumstances that make it an aggravated offence must be pleaded. The length of driving and distance travelled is important. Here it was relatively significant. The driving involved seven suburbs and lasted for, on the basis of observation of the dashcam footage, at least 40 minutes.
56․It needs to be noted that, while there were egregious breaches of the road rules, such as travelling on the incorrect side of the road, including in some heavy traffic, there were periods of driving which were unexceptional. Thus, the danger was not continuous for the whole period, as the dangerous driving was interspersed between more conventional driving.
57․There were, thankfully, no collisions and there were no passengers in the motor vehicle.
58․Driving at police is punishable under s 29A of the Crimes Act 1900 (ACT) which renders Mr Allred liable for a maximum penalty of 15 years imprisonment., thus a serious offence. This is a relatively recently introduced offence and, perhaps fortunately, there is not a great deal of jurisprudence about it, for there are not a great number of offences apparently coming before the Courts. It was considered at some length in R v Seymour at [27]-[37] which considers some interstate jurisprudence as well.
59․This was a reckless offence, a less serious version of the offence than intentional driving at police, but serious, nevertheless. A serious matter is that Mr Allred was trying to evade arrest by having, again, engaged in a police pursuit. He was also driving on a median strip and, while there, at the police. No damage was caused. The incident happened on a quite busy roadway so far as the evidence shows.
60․Such an offence is important as a means of protection of police officers who carry out their important task of protection in the community and are at risk of personal injury as a result.
61․It was quite a serious version of the less serious version of the offence.
62․Driving whilst disqualified is proscribed by s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) and provides for a maximum penalty of 12 months imprisonment or a fine of $16,000 or both. It also attracts an automatic disqualification for an offender of 24 months or such longer period as a Court may direct.
63․The principles for assessing this offence have been set out in Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 at [33]-[38]. Repetition of the offence is clearly aggravating, but that is already partly encompassed in the increased penalty for repeat offending. Continued breaches, however, often suggest contumelious disregard of the licensing laws which is serious and that appears to be the situation here.
64․The nature of the driving is relevant though care must be taken to avoid double punishment, where that is separately charged, as here.
65․There is also a sense of willfulness in continued disregard of licensing law especially as there is, as here, no reasonable explanation for the requirement to drive.
Subjective circumstances
66․After the objective circumstances, namely the facts and nature and circumstances of the offending, the next most important factor is the personal situation, that is the subjective circumstances, of the offender.
67․Mr Allred was born 30 years ago, one of three children of his parents. His parents separated when he was about six years old. He does appear to identify as indigenous but has no ongoing connection with his community apart from his attendance at the Winnunga Nimmityjah Aboriginal Medical Service. He seemed to have a good relationship with his parents, though his relationship with his father declined recently. His mother has shown in her letter her strong support for him as has the sister who wrote also. He has a good relationship with his other sister, but his relationship with his brother is currently quite limited.
68․He has a good relationship with his aunt, who has continued to support him and expressed that strongly in her evidence.
69․His mother re-partnered, but, unfortunately, that relationship was marred by domestic violence, both to his mother and to Mr Allred, who was also exposed to it. A stepsister was born of this union. He did relocate to his father's residence during his adolescence with two of his siblings until he was about 15‑years‑old. He says that he was “kicked out” [redacted].
70․Mr Allred attended primary and secondary school but left midway through year 9 at 14 years of age. He reports that it was “before he was expelled for ongoing behavioural issues”.
71․He engaged in some post-school education including the courses that he completed in the Alexander Maconochie Centre, referred to earlier (at [7]). He also completed some other requirements for working in the building industry, where he has had some employment in scaffolding, labouring and painting. It has been limited because of his time in custody, drug use and supervised community orders. He had worked as a painter for about four months before his arrest. He did find that, after one custodial sentence, he managed to return to full-time employment and remained abstinent from drugs for about 3 years.
72․Mr Allred has had intimate relationships. The most recent relationship ended primarily through his ongoing drug use. An earlier relationship lasted for about eight years, but also ended through his drug use. He is currently single and has no children.
73․Mr Allred was diagnosed with Attention Deficit Disorder as a child, but was not medicated. He engaged in some self-harm as a youth. He has more recently received a diagnosis of anxiety for which he was prescribed medication. His most recent mental health examination did not find any symptoms of a major mental illness.
74․Mr Allred was involved in a motor vehicle collision in 2020, which required hospitalisation for a fractured pelvis. He self-discharged against medical advice and this led to a traumatic injury which caused ongoing issues. His condition has improved with more recent day surgery.
75․He has an allergy to bees but no other significant physical health conditions.
76․Mr Allred had first started smoking cigarettes at age 10 and was soon smoking daily. He currently smokes 40 cigarettes a day and has his first cigarette each day immediately after waking up.
77․He first used methamphetamine at age 17 or 18, initially smoking, but soon was using up to 1 gram intravenously each day from about age 20. He used on the day of offending.
78․He first used heroin at age 19 or 20, when in custody. This led to daily use by about the age of 24 or 25. He last used about nine months ago. He has been prescribed Buvidal, an opioid maintenance therapy, and wishes to continue with that through Winnunga Nimmityjah Aboriginal Health Services.
79․He used steroids for a while but has not used for about 18 years. He has used some other illicit drugs but briefly in a social setting.
80․Mr Allred has had some alcohol, tobacco and other drug treatment. He attended residential drug rehabilitation at Ted Noffs Foundation at age 16, at Oolong House in 2010 and in the Wayback Community in Sydney in 2022. He did not complete the Oolong House or Wayback Community programs because of heroin use which led to his discharge. His time at Wayback Community was of concern for it was in 2022, but he says that he used heroin because he was unable to access his opioid maintenance therapy.
81․While in custody he attended and completed the Solaris Therapeutic Community program in 2016. He re-entered it in 2022, but was discharged for failing to provide a sample of urine for a urinalysis.
82․Mr Allred has a long history of criminal offending, all in the ACT. [redacted]
83․As an adult he has 43 offences on his record. He was first imprisoned about nine months after turning 18 years old. He has committed a number of the offences for which he is now to be sentenced, dishonestly driving a motor vehicle without the owner's consent, being an unlicensed driver and not stopping when directed by police.
84․He has had a number of community-based orders, but has generally not completed them satisfactorily, because, for example, he has committed further offences or failed in supervision. As noted above (at [37]-[38]), his recent parole order was revoked.
85․Since being in custody, he has had five discipline matters requiring a warning or, in one case, loss of privileges for 28 days for failing to supply a sample of urine. He has, however, also received notifications of three positive behaviours and a behaviour commendation.
86․Mr Allred engaged well in the preparation of the Suitability Assessments. He has been respectful, punctual and engaged well. He provided information on request and has a record of compliance with custodial health staff, attending appropriately as required and complying with medical regimes.
87․He has been abstinent from illicit drugs from time to time but now appears motivated and committed to seek assistance. He has been accepted into the day program of drug rehabilitation at the Canberra Recovery Hub.
Current sentencing practice
88․Section 33(1)(za) of the Sentencing Act requires a Court sentencing an offender to consider current sentencing practice as far as it knows it.
89․Some relevant information about this, but with significant limitations, can be obtained from the ACT Sentencing Database. Indeed, counsel did refer to those records for the offence of dishonestly driving a motor vehicle without the owner's consent where over 51 per cent of the 185 sentences for offences dealt with in the ACT Magistrates Court resulted in sentences of imprisonment to be served full-time. Another over 16 per cent were fully suspended prison sentences and a further over 15 per cent were partially suspended. The levels of imprisonment were between one months and 18 months imprisonment with 80 per cent in the range of two months and 18 months, the latter for only one sentence. The largest number of sentences were of six months imprisonment.
90․In the Supreme Court there were 314 sentences of imprisonment from six months to three years, the latter for only one offence, where over 70 per cent were to be served in full‑time custody.
91․The other way to address this consideration is through comparable cases. The prosecution provided a table of 10 sentences where the sentence had been imposed for aggravated dangerous driving. There were really 9 different decisions, as one appeared in the prosecution’s table twice. They were: R v Seymour; R v Crawford [2022] ACTSC 166; R v Williams [2012] ACTSC 288; R v Goolagong (No 2) [2021] ACTSC 131; R v Law [2021] ACTSC 351; R v Collins [2019] ACTSC 302; R v Rosewarne [2021] ACTSC 217; Mann v Tremethick(No 2) [2023] ACTSC 31 and R v Guy [2022] ACTSC 373. These were helpful and the analysis in the table attached to the prosecution's submissions was careful and very useful. The sentences ranged from 5 months imprisonment to 19 months imprisonment.
Consideration
92․Sentencing an offender is a most difficult task for a Court. This is made easier when the purposes of the sentence can be identified. This is helped in this Territory by the ACT Legislature enacting s 7 of the Sentencing Act which sets out the purposes for which sentences may be imposed.
93․The serious harm that is potentially caused by the offences such as driving at a police officer, aggravated dangerous driving and dishonestly driving a motor vehicle without consent mean that punishment is important to show that these are unacceptable and that there are consequences. This denounces the offending but also helps set norms for civilised behaviour. As well, it can help deter those who might be minded to commit such offences, though there is some doubt about the effectiveness of such deterrence.
94․Similarly, the driver licensing regime needs to be supported and upheld by a stern response to those who breach it by driving unlicensed in one way or another.
95․There were easily identifiable actual victims for the three more serious offences. Others included any innocent drivers who were put at risk by the irresponsible driving. All of the community is put at risk by the erosion of the driver licensing scheme. The harm thus done must be acknowledged.
96․Punishment, namely a severe sentence, may also deter Mr Allred from committing such offences again. This, of course, has not worked to date. Indeed, he has a depressing criminal record, including terms of imprisonment. Much of this offending has been caused by his dependency on illicit substances, which also weakens any resolve to refrain from further offending and facilitates impulsivity.
97․Thus, rehabilitation is an important factor and will not only prevent Mr Allred from re-offending, if successful, but will, as a required objective, also protect the community.
98․Mr Allred pleaded guilty after a Criminal Case Conference. It means that the utilitarian value of the plea is lessened compared to such pleas entered in the Magistrates Court where these were not then entered in this case, apart from in the case of one offence. The utilitarian value in this case for the other offences is also less than for that cases where no plea of not guilty was entered at all and so did not require the preparation of a prosecution Brief of Evidence.
99․Nevertheless, the pleas did ultimately save the cost of a trial and were still of some utilitarian value, as held in Blundell v The Queen [2019] ACTCA 34 at [12]. An appropriate discount for the pleas of guilty is therefore available to Mr Allred. The evidence against Mr Allred was strong, perhaps almost overwhelming, so a significant discount is, nevertheless, inappropriate.
100․Mr Allred was at conditional liberty at the time of the offending. While this does not increase the objective seriousness of the offence, it does require a more serious sentence. As to the breach of parole, it must be noted that this resulted in Mr Allred then serving the balance of the sentence for which the non-parole period had been set. In a real sense, this is a punishment as the original sentence assessed for Mr Allred did not need for sentencing purposes to serve the whole of the sentence. Nevertheless, the breach of the opportunity to be at liberty does mean that this sentence must be somewhat increased.
101․Mr Bevan suggested that the period of pre-sentence custody in serving that sentence for which the parole order was revoked could be counted as pre‑sentence custody. He referred to what Simpson J had stated in Callaghan v The Queen [2006] NSWCCA 58, that 'a discretion exists'.
102․Given the circumstances, it is not appropriate to exercise a discretion here. It does seem that it would be likely to be available in appropriate circumstances. On the other hand, the period of nearly continuous custody should be considered in the context of totality.
103․In constructing an appropriate sentence, it is important to have regard to the nature and circumstances of the offending and the personal circumstances of Mr Allred. It is also necessary to have regard to his growing awareness that he now needs to address his drug use. His plea of guilty is relevant as is the fact that he breached his conditional liberty by committing these offences. The harm done to the victims is also relevant, even in the absence of any victim impact statements, as the Court can, in general terms, understand the harm that has been done by such offences. Mr Allred was not introduced to drugs at a particularly early stage, but his use of them has persisted despite efforts to rehabilitate.
104․Nevertheless, having regard to all the circumstances and all the alternatives, it is clear that no other penalty than a sentence of imprisonment is required: s 10 of the Sentencing Act.
105․There are, of course, five offences for which a sentence must be imposed. A proper sentence must be imposed on each and the term of imprisonment or other penalty must be carefully considered to ensure that it is just and adequate and also to ensure that Mr Allred is not punished twice.
106․The Court must also consider whether the sentences should be partly or wholly concurrent because, for example, they are part of the same course of conduct, as some of them were here, or contain common elements. The effect of having common elements was referred to above (at [64]) in the relationship between the aggravated dangerous driving and the driving whilst disqualified offences.
107․The length of the total term of the sentence to be imposed must also be considered to ensure that the principle of totality is respected and that the total sentence adequately reflects the criminality of the offences committed but no more than that and that the total sentence is not excessive, but will leave open the realistic prospect of reform and maintain the hope required for Mr Allred to take an effective part in the community and realise his aims when he is released.
108․This may result in what is seen as some lenience in that some sentences are made concurrent, but while the total criminality of Mr Allred is an important factor, his growing awareness of the need for rehabilitation is also important, as is the circumstances of his long and entrenched drug use.
109․Thus, it requires a sentence proportionate to his culpability for the crimes, the effect on the community but also Mr Allred's subjective circumstances and the value of reform to both the community and to himself.
110․Mr Allred, please stand.
(1)You are convicted of driving at police (CAN 7995/2022) and sentenced to 13 months imprisonment to commence on 16 January 2023 and end on 15 February 2024.
(2)You are convicted of dishonestly driving a motor vehicle without the owner’s consent (CAN 750/2023) and sentenced to 12 months imprisonment to commence on 16 February 2024 and end on 15 February 2025.
(3)You are convicted of driving while disqualified as a repeat offender (CAN 2106/2023) and sentenced to 6 months imprisonment to commence on 16 November 2024 and end on 15 May 2025.
(4)You are convicted of aggravated dangerous driving (CAN 3/2023) and sentenced to 15 months imprisonment to commence on 16 February 2025 and end on 15 May 2026.
(5)You are convicted of driving while disqualified as a repeat offender (CAN 7990/2022) and sentenced to 9 months imprisonment to commence on 16 February 2026 and end on 15 November 2026.
111․That is an overall sentence of 3 years and 10 months, commencing on 16 January 2023 and ending on 15 November 2026.
112․You may be seated.
113․Mr Allred has been sentenced to a substantial period of imprisonment. The Sentencing Act provides a number of ways in which a sentence of imprisonment can be served apart from full-time custody. Of these options, Mr Allred has sought that a Treatment Order be made and so it is appropriate that this be considered first.
114․In order to do so, it must first be established that Mr Allred is eligible for such an order. If so, the Court must then be satisfied that he is suitable, that it is suitable that the sentence of imprisonment be suspended, and that there are suitable arrangements for administration of the order.
115․The eligibility criteria are set out in ss 12A and 80S of the Sentencing Act. Those in s 80S are really the questions of suitability and suitable arrangements, so they can also be considered if Mr Allred is otherwise eligible.
116․The eligibility criteria in s 12A of the Sentencing Act are accordingly to be addressed first.
117․Mr Allred has pleaded guilty to the five offences, all of which are eligible offences. For the primary offence of driving at police, he has been sentenced to imprisonment for 12 months, which is the minimum eligible period for a Treatment Order and, together with the associated offences, for a total of 3 years and 10 months, which is less than the maximum eligible term, namely 4 years imprisonment.
118․The Suitability Assessment of Alcohol and Drug Services have assessed Mr Allred as likely to have a severe substance disorder. This is confirmed by the history of drug use, including as described in the Suitability Assessments of ACT Corrective Services and his criminal record, together with his oral evidence, as well as the evidence of his aunt. The Court is satisfied that he has a dependence on methamphetamine. The Suitability Assessments also described, and he confirmed in his evidence, that he was using drugs at the time of both occasions of offending and that it substantially contributed to his offending. There was no challenge to this.
119․Mr Allred has lived in Canberra all his life and there is no reason to suggest that he will not be a resident in the ACT until the end of his sentence.
120․Mr Allred has signed the prescribed consent form for the making of a Treatment Order. The Suitability Assessments have recorded that he has had his obligations under such an order explained to him and that he has had the opportunity to ask any questions he may have and that those questions have been answered in terms that he is likely to understand. The Court is satisfied that he has also made an informed consent to the making of a Treatment Order.
121․Mr Allred is not subject to any sentencing order within the meaning of s 12A of the Sentencing Act. Accordingly, Mr Allred is eligible for a Treatment Order to be made.
122․The Suitability Assessment of Alcohol and Drug Services recommends that he is suitable for the making of a Treatment Order. The Suitability Assessment of ACT Corrective Services recommends that he is not suitable. This is because of his past poor performance in the community under community-based orders.
123․He has, however, shown in the past that he can be abstinent and, indeed, there were periods, most recently between 2012 and 2019, where he was not charged with any offences.
124․He has now been abstinent and while he has not behaved perfectly in custody, there are real signs of positive behaviour. Again, while he did not succeed in the Wayback Community, there was a rational explanation for that, which can be accepted and, furthermore, it can be addressed under a Treatment Order.
125․He has shown commitment. That commitment, of course, needs to be translated into action and he has shown in the past that he has some capacity for that. All the prior rehabilitative opportunities have been in more limited circumstances without, in particular, judicial supervision and the speedier addressing of failure.
126․The Court is satisfied that it is appropriate to make a Treatment Order. The Court does not find that there are any matters referred to in Table 46K of the Sentencing Act that would make it inappropriate to make a Treatment Order.
127․The Case Plan shows that there are suitable arrangements for the administration of the Treatment Order.
128․The term of imprisonment commences on 16 January 2023 and so, when it is suspended, as it will be required to be under s 80W of the Sentencing Act, he will have served a period of imprisonment and the sentence will be partially suspended.
129․Despite the requirements of s 80W that the sentence be fully suspended, this does not prevent a Treatment Order being made for the reasons set out in R v Crawford (No 1) [2020] ACTSC 245 at [91]-[111].
[His Honour then directly addressed Mr Allred]
130․Mr Allred, please stand.
(6)A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for you in respect of the primary offence of driving at police (CAN 7995/2022) of which you have been convicted and for which you have been sentenced to 12 months imprisonment.
(7)That Order be extended to the offences of dishonestly driving a motor vehicle without the owner’s consent (CAN 750/2023), driving while disqualified as a repeat offender (CAN 2106/2023), aggravated dangerous driving (CAN 3/2023) and driving while disqualified as a repeat offender (CAN 7990/2022) of which you have been convicted and for which you have been sentenced, and which are associated offences of the primary offence.
(8)It be noted that convictions and sentences imposed for the primary and associated offences have been recorded and are hereby incorporated into the Drug and Alcohol Treatment Order in the custodial part of the Order.
(9)The Drug and Alcohol Treatment Order be for 3 years 4 months from today, 17 July 2023, to 15 November 2026.
(10)The treatment and supervision part of the Drug and Alcohol Treatment Order be for 2 years from today, 17 July 2023, until 16 July 2025.
(11)The custodial part of the Drug and Alcohol Treatment Order for the primary and associated offences be hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today 17 July 2023, until 15 November 2026.
(12)Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), you are required to sign an undertaking to comply with the offender’s Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Treatment and Supervision Part of the Drug and Alcohol Treatment Order, 17 July 2025, until the end of the total sentence, 15 November 2026, with a probation condition that he accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him including as to alcohol and drug testing, counselling and treatment.
(13)For the Treatment and Supervision Part of the Drug and Alcohol Treatment Order:
(a)The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed:
(b)You are required to undertake any program, treatment or counselling, alcohol and drug testing or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where he resides, with whom he associates and his attendance from time to time;
(c)You are required to not return a positive test sample under alcohol and drug testing; and
(d)You are to comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.
(14)You are directed to sign a sealed copy of this Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this Order is in force to before you leave the Court precincts.
(15)You are directed to appear in Court in person on Friday 21 July 2023 at 11:30am.
131․Mr Allred, that is a lot of words. You have been in courts before, so you probably understand most of what I have said and most of it is about you and what you did and your circumstances.
132․At the end of the day, I have said that there are two periods of inappropriate conduct that breached the norms of our society. The breaches of the ordinary conduct that we expect in our community are serious and deserving of a significant period of imprisonment. Given much of the cause of this behaviour, however, and much of the efforts that you have made and appear to wish to continue to make, I am prepared to make a Drug and Alcohol Treatment Order. That is not a get out of jail free card. Yes, you do not have to spend any more time in prison, but you have to put your shoulder to the wheel and address the pernicious drug dependency that you have got and try to manage it.
133․You will probably never be completely free from drugs dependence, but you will be able to manage that and not need to seek drugs and be able to say no to drugs from time to time. It will be difficult and it will be long and long lasting. The benefits will be significant, but the effort needs to be made.
134․You will come and see me every week, at least initially, in this Court or soon in the Court next door. I can then punish you if you have misbehaved and that can include sending you back to prison for a period of time.
135․If it gets too bad and you are just not performing, then I can cancel the Order and send you back to spend the rest of the three years and 10 months in custody. I am not saying this to frighten you, that is not a blackmail. That is simply the fact and you are smart enough, intelligent enough to know what is at stake.
136․If you are prepared to address your drug dependency, if you do not want to live a drug and crime filled life, you have come to the right place. This Court is here to help you do that and it will not ignore any breaches, but it will try to work through those because it is known that when you can overcome challenges, that will make you stronger and it will mean you can more easily address those challenges later on.
137․There are a couple of things that you really need to know. One is: do not just run away. We will find you. We will bring you back and you will then have to serve the sentence of imprisonment and probably you will have committed other offences as well so it will be even longer. If you are having difficulty, talk to your case managers. You will have case managers from Corrective Services and from Health. They are there to support you. Yes, they supervise you and, yes, they report to me if you have done things that are wrong or failed to do what is right, but they are there to support you and their focus is on getting you through this Order if they can.
138․If you just take off, then none of that can happen and you just may as well save everyone the problems and go back to jail now. If it is getting difficult, talk to them. You can also come and talk to me in Court. That is a little bit more difficult because it is public Court, but we deal with those things and, if there are challenges, you can ask me and we try to be flexible, we try to make it work because we want to make sure that this all happens at the end of the day. We would be delighted to be able to graduate you and send you out with a certificate saying that you can go into the community not as a risk, not likely to use drugs, not likely to commit crime.
139․The second thing that is really important is for you to be honest. People in the drug milieu often are not very honest because that is how you survive. You have got to be honest and you will be punished if you admit to things that have happened, but you will be punished less severely and, perhaps, not even have to go to prison, if you are honest about it and fess up. I do not want you to take any drugs, but I realise this is a risk for you at the moment and, if you do and you come to urinalysis and the nurse asks you have you taken any drugs, be honest.
140․You will still be punished for providing a positive sample, but less severely and support will be provided for your honesty, because that is a mark that you are making progress.
141․Importantly, though, it is also necessary to be honest to yourself. It is very easy to say, 'Oh, this is not so bad. It does not matter. I'll just take a quick puff', all right.’ Be honest with yourself and say, 'This is wrong'. That might make you feel ashamed because you have got that urge or you do it. Shame can be a difficult emotion to live with, but shame is a good emotion because it tells you where you do not want to go and being honest moderates that shame and then it becomes harder to go down the wrong track further. Be honest with yourself.
142․As I say, this Court is designed to try and get you through this process, this long and difficult process, and end with your graduation to go out into the community and do what you really want to do. Have relationships which are not ended by your drug use. Have jobs that are ongoing, that make you feel fulfilled, that give you stability within the community. Make your mother and your aunt proud of what you have become and what you be. Have a family and get the joy that comes from the family. If you are willing to work with this, if you are open and honest with us and if you try hard then it will succeed and you have come to the right place for this.
143․I hope that it works. I will see you on Friday.
| I certify that the preceding one hundred and forty-three [143] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge Acting Justice Refshauge Date: |
6
18
5