Director of Public Prosecutions v Bower (No 3)

[2024] ACTSC 249

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Bower (No 3)

Citation: 

[2024] ACTSC 249

Hearing Date: 

5 June 2024; 4 July 2024; 7 August 2024

Decision Date: 

7 August 2024

Before:

Taylor J

Decision: 

See [61].

Catchwords: 

CRIMINAL LAW – Judgment and Punishment – breach of suspended sentence – obtaining property by deception –whether to resentence – where breaches not especially serious – breaching conduct reflective of difficulty engaging with supervisions – where offender had not re-offended for a significant period – where offender had taken rehabilitative steps – re-sentenced and Good Behaviour Order imposed

Legislation Cited: 

Crimes (Sentence Administration) Act 2005 (ACT) s 110

Crimes (Sentencing) Act 2005 (ACT)

Criminal Code 2002 (ACT) ss 308, 311, 313, 318, 321, 324, 326

Road Transport (Driver Licensing) Act 1999 (ACT) s 32(1)(a)

Cases Cited: 

Director of Public Prosecutions v Carr [2024] ACTSC 130

Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379

Guy v Anderson [2013] ACTSC 5

R v BC [2020] ACTSC 308

R v Bower [2022] ACTSC 382

R v Bower (No 2) ACTSC 388

R v Kelly (No 2) [2021] ACTSC 253

Saga v Reid [2010] ACTSC 59

Tanner v Brown [2011] TASSC 59

The Queen v PM (No 2) [2015] ACTSC 358

Parties: 

Director of Public Prosecutions

Hollie Maree Bower (Offender)

Representation: 

Counsel

C Daly (DPP)

C Duffy (Offender)

Solicitors

ACT Director of Public Prosecutions (DPP)

ACT Legal Aid ( Offender)

File Numbers:

SCC 31 of 2021

SCC 32 of 2021

SCC 78 of 2021

SCC 79 of 2021

SCC 170 of 2022

SCC 171 of 2022

TAYLOR J:   

EX TEMPORE

Introduction

1․The offender in this matter is before the Court for a  breach of a Good Behaviour Order (GBO), imposed upon her by Refshauge AJ on 18 January 2024 as part of a Suspended Sentence Order (SSO). The sentencing remarks and consequential orders reveal that the offender was resentenced on that occasion to a total term of imprisonment of four years commencing on 22 November 2022 and concluding on 21 November 2026. The sentence was suspended on 18 January 2024 upon the offender undertaking to comply with an obligation to be of good behaviour as well as a condition to accept the supervision of the Director General of ACT Corrective Services until 21 November 2026. The offender has admitted to being in breach of her obligation in relation to accepting supervision, the particulars of which I will come to further on in these reasons.

2․On 18 January 2024 the offender was re-sentenced in relation to the following 13 offences:

(a)CC2019/1002: burglary, contrary to s 311 of the Criminal Code 2002 (ACT) (the Criminal Code), with the sentence of 12 months of imprisonment imposed commencing on 22 November 2022 and ending on 21 November 2023;

(b)SCCAN2021/60: theft, contrary to s 308 of the Criminal Code, with the sentence of 3 months of imprisonment imposed commencing on 22 September 2023 and ending on 21 December 2023;

(c)SCCAN2021/52: burglary, contrary to s 311 of the Criminal Code, with the sentence of 10 months of imprisonment imposed commencing on 22 September 2023 and ending on 21 July 2024;

(d)SCCAN2021/138: receiving stolen property, contrary to s 313 of the Criminal Code, with the sentence of 10 months of imprisonment imposed commencing on 22 December 2023 and ending on 21 October 2024;

(e)CAN2020/10265: dishonestly riding in a motor vehicle without consent, contrary to s 318 of the Criminal Code, with the sentence of 6 months of imprisonment imposed commencing on 22 July 2024 and ending on 21 March 2025;

(f)CAN2020/10260: obtaining property by deception, contrary to s 326 of the Criminal Code, with the sentence of 8 months of imprisonment imposed commencing on 22 November 2024 and ending on 21 May 2025;

(g)CAN2020/10266: dishonestly riding in a motor vehicle without consent, contrary to s 318 of the Criminal Code, with the sentence of 9 months of imprisonment imposed commencing on 22 January 2025 and ending on 21 October 2025;

(h)SCCAN2021/57: obtaining property by deception, contrary to s 326 of the Criminal Code, with the sentence of 6 months of imprisonment imposed commencing on 22 July 2025 and ending on 21 January 2026;

(i)CAN2020/11752: unlawful possession of stolen property, contrary to s 324 of the Criminal Code, with the sentence of 3 months of imprisonment imposed commencing on 22 November 2025 and ending on 21 February 2026;

(j)CAN2022/5810: dishonestly riding in a motor vehicle without consent, contrary to s 318 of the Criminal Code, with the sentence of 9 months of imprisonment imposed commencing on 22 November 2025 and ending on 21 August 2026;

(k)CAN2022/5809: minor theft, contrary to s 321 of the Criminal Code, with the sentence of 2 months of imprisonment imposed commencing on 22 November 2024 and ending on 21 May 2025;

(l)CC2017/2150: driving while disqualified, contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) (the Licensing Act), with the sentence of 4 months of imprisonment imposed commencing on 22 May 2026 and ending on 21 September 2026; and

(m)CC2017/7396: driving while disqualified, contrary to s 32(1)(a) of the Licensing Act, with the sentence of 4 months of imprisonment imposed commencing on 22 July 2026 and ending on 21 November 2026.

The history of the proceedings and the original offending  

3․It is necessary and useful to record the somewhat protracted history to these breach proceedings.  R v Bower [2022] ACTSC 382 (Bower) was the first occasion Refshauge AJ dealt with the offender for the offences set out above excluding CAN2022/5809 and CAN2022/5810. On that occasion, 4 January 2022, the sentencing proceedings were adjourned to allow the offender to be assessed for an Intensive Corrections Order (ICO). The decision records at [134] that as of 4 January 2022, the offender was unsuitable to be placed on a Drug and Alcohol Treatment Order (DATO) because there were no places available for her at a residential rehabilitation facility. The offender was granted conditional bail. The bail conditions were strict and required the offender to demonstrate a willingness to engage with a variety of support services: at [138], order (3).

4․On 13 September 2022 the offender was sentenced in relation to the offences set out above including CAN2022/5809 and CAN2022/5810, those offences having been committed during the period the sentencing proceedings were adjourned while the offender was on bail, specifically on 27 and 28 April 2022: R v Bower (No 2) ACTSC 388 (Bower (No 2)).

5․After carefully considering the objective seriousness of the offences and the offender’s complex subjective circumstances, his Honour made a DATO for two years on the “primary offence” of burglary commencing on 13 September 2022 and ending on 12 September 2024 in relation to each of the nine offences, being two counts of burglary (CC2019/1002, SCCAN2021/52), one count of theft (SCCAN2021/60), one count of receiving stolen property (SCCAN2021/138), two counts of obtaining property by deception (CAN2020/10260, SCCAN2021/57), two counts of dishonestly riding in a motor vehicle without consent (CAN2020/10265, CAN2020/10266), and one count of unlawfully possessing stolen property (CAN2020/11752). As part of the DATO the offender was required to comply with good behaviour obligations until the end of the total sentence which was 15 March 2026, and the custodial part of the DATO was suspended from 13 September 2022 until 15 March 2026. The total period of imprisonment imposed for all offences was three years and nine months imprisonment.

6․After conduct which put her in breach of the DATO, the offender was remanded in custody on 8 December 2023. On 18 January 2024 the offender again appeared before Refshauge AJ. The transcript of the proceeding records his Honour’s recital of the circumstances which saw the offender in breach of the terms of the DATO and subject to an application by the prosecution to cancel the DATO: at pages [3]-[8]. Those circumstances include the offender resuming a relationship with a former partner and ultimately, relapsing. The prosecution sought cancellation of the DATO on the grounds that the offender (i) was unwilling or unlikely to comply with a condition of the DATO and (ii) that continuation of the DATO was likely not to achieve the objects of the treatment order.

7․The sentencing remarks of 18 January 2024 carefully track both the positive and negative aspects of the offender’s engagement with the opportunity presented by the DATO. Some of the more positive aspects of her engagement included completion of residential rehabilitation and the transitional day program. Some of the negative aspects of her engagement included drug use and inconsistent engagement with supports. His Honour noted that the offender was consistently honest with the treatment team and the Court about her drug use and the challenges she experienced with compliance.

8․In the end, his Honour determined to grant the prosecution application and cancel the DATO. The offender was then resentenced to a total period of 4 years of imprisonment to be suspended from 18 January 2024 on the condition that the offender comply with a requirement to be of good behaviour until 21 November 2026 along with a number of other specific conditions clearly designed to target the offender’s ongoing challenges with drug use.  

9․Acting Justice Refshauge comprehensively detailed the circumstances of the offender in Bower and Bower (No 2) and as part of the proceedings on 18 January 2024, which I summarise here as part of these reasons:

(a)The offender was being sentenced for offences committed on various dates between May 2018 and April 2022, when the offender was in her early 20s and was 28 years old by the time the DATO was imposed: Bower at [93]; Bower (No 2) at [2];

(b)The offender is of Aboriginal heritage and had an upbringing with “no neglect and her parents had stable employment”. That said, for some time the offender did not have parental support or control, leading to engagement in behaviour she described as “run[ning] wild”. Acting Justice Refshauge considered she had suffered some childhood disadvantage and disruption to her education. Bower at [93]-[94]; Bower (No 2) at [91];

(c)The offender has a long history of substance use. She was first introduced to cannabis at the age of 12, having accessed it in her father’s home, and subsequently methamphetamine from age 14 and heroin at age 21: Bower at [102]-[106];

(d)The offender has been in multiple relationships with persons who have perpetrated family violence against her, who encouraged her drug use, or who had criminal histories themselves: Bower at [97]-[101], [105];

(e)The offender has expressed insight into the pitfalls of her drug use and has been willing to engage in rehabilitation, driven also by a desire to set a good example for her children: Bower at [107]-[108], [110]; Bower (No 2) at [85]-[86].

Previous offending and time in custody

10․The offender’s extensive criminal history was outlined by Refshauge AJ in Bower at [109]. The offender’s criminal history is entirely consistent with an entrenched challenge in relation to substance abuse and mental ill health.

Current breach action

11․The offender was released from custody under the terms of the SSO on 18 January 2024.

14 March 2024 affidavit

12․The information underlying the breach action now before the Court was set out in an affidavit from Ms Pettett of ACT Corrective Services dated 14 March 2024, which deposes to the offender’s breaches of the following conditions of the GBO:

(a)To obey all reasonable directions of supervision by ACT Corrective Services, including undergoing drug and alcohol testing, where she resides and with whom she associates;

(b)Residence at a place provided by Toora Women’s Inc (Toora); and

(c)Prohibition against consumption of alcohol, illicit or prescription drugs not prescribed to her, and against returning a positive result on any drug testing.

13․The offender was alleged to have committed the following breaches:

(a)Failure to report to supervision on 6 February 2024 and failure to advise of her inability to attend;

(b)Failure to reside at her allocated residence, being absent when Toora staff conducted their morning checks. The offender reported that she leaves her place early in the morning to see the father of her children who is terminally ill in the intensive care unit;

(c)Returning positive urinalysis and laboratory test results for cannabis, amphetamines and methamphetamine on 7 February 2024;

(d)Being seen with her former partner at the courts on 19 February 2024 and, by admission, again on or around 26 February 2024, contrary to a verbal direction given to her on 22 January 2024;

(e)Failure to present a medical certificate for her non-attendance at her reporting appointment on 12 March 2024.

14․At the hearing before me on 5 June 2024:

(a)The offender admitted the breach comprising of a failure to report for supervision on 6 February 2024 and a failure to advise of her inability to attend. The affidavit of Ms Pettett deposes that the offender was directed to report at 10:00AM on 6 February 2024. A phone call was made to the offender’s number at 10:20AM that day. It appeared the offender was woken up by the call and she reported that she believed her appointment was on a Thursday. She was advised this was not the case and that the officer was not available on Thursday. She was given the opportunity to report by midday on 6 February 2024 due to the officer going on leave. She reported at 1:15PM on 6 February 2024. At this time, following discussion with Toora regarding previous non-compliance with checks and not being present at the property, an agreement was reached that the offender would remain at Toora when staff do their checks and that she would sleep at the property and engage with her case worker.

(b)The offender admitted to the breach of returning positive urinalysis and laboratory test results for cannabis, amphetamine and methamphetamine on 7 February 2024. She declared cannabis use to ACT Corrective Services as well as prescribed medications and opioid replacement pharmacotherapy.

(c)She admitted to the breach of being with her former partner, Mr Gardner at the courts on 19 February 2024.

(d)The prosecution withdrew the breach allegation in relation to non-attendance on 20 February 2024, due to the provision of a medical certificate by the offender.

(e)The prosecution did not press the breach allegation for failing to present a medical certificate for her non-attendance at her reporting appointment on 12 March 2024.

15․On 5 June 2024, I requested a supplementary breach affidavit to be produced by ACT Corrective Services in relation to the offender, regarding her level of engagement and any urinalysis results, under the current supervision order, since the filing of the original breach affidavit of Ms Pettett.

2 July 2024 affidavit

16․The supplementary affidavit of Mr Cuthel details that since 21 March 2024, the offender’s response to supervision has been mostly satisfactory. There remain concerns that she had not provided evidence of employment or attendance at counselling sessions as directed. The offender advised Mr Cuthel that she would provide these to the Court at the further hearing date.

17․On 16 May 2024 and 30 May 2024, the offender complied with a direction to undertake urinalysis. Both tests returned a positive result for cannabis and methadone, both of which the offender had disclosed use of prior to the tests. The offender provided ACT Corrective Services with her prescription for medical cannabis and methadone.

18․On 2 May 2024, ACT Corrective Services was advised by Toora that they intend on closing her file due to a lack of engagement.

19․It is apparent from the additional affidavit that since 21 March 2024, the offender has attended supervision more frequently since the breach action was initiated and that the offender has for the most part complied with requests to provide relevant documents and information. The offender missed an appointment on 6 May 2024, advising that she had an employment trial. She did attend the following appointment on 16 May 2024. The offender did not attend urinalysis on 20 May 2024, advising she was unwell and instead presented on 30 May 2024 as arranged with ACT Corrective Services. She did not attend on 1 July 2024, advising that she had injured her back. The offender did not provide a medical certificate in support of this injury.

The Court’s task – is the offender in breach?

20․Section 110 of the Crimes (Sentence Administration) Act 2005 (ACT) (the CSA Act) provides that upon being satisfied that an SSO has been breached:

(2)The court must cancel the good behaviour order and either—

(a)impose the suspended sentence imposed for the offence; or

(b)re-sentence the offender for the offence.

21․I am satisfied based on the material before the Court, together with the offender’s admissions in relation to the breaches alleged, that the offender is in breach of the SSO made on 18 January 2024.

22․It is important, I think, to make clear that the offender has not committed an offence since April 2022. The conduct that has consistently returned her to this Court since then is conduct falling short of the requirement to engage in supervision designed to assist her to rehabilitate, specifically in relation to her drug use and ultimately designed to guard against re-offending.

23․The breach conduct is made up of unsatisfactory compliance with reporting and residence conditions, amounting to a failure to accept the supervision and obey reasonable directions of ACT Corrective Services. Further, the breach includes the return of positive urinalysis results for cannabis, amphetamine and methamphetamine on 7 February 2024. A urinalysis on 30 May 2024 returned a positive result for cannabis and methadone, both of which the offender is prescribed.

Consideration and determination   

24․In this jurisdiction there is no presumption in favour of the imposition of a sentence that was suspended: Guy v Anderson [2013] ACTSC 5 at [83]-[87]; R v BC [2020] ACTSC 308 at [35]. It is recognised however that a failure of courts to act where there has been a clear breach of the bond by which the offender avoided being subjected to full-time imprisonment is likely to bring suspended sentences into disrespect: Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379 at [23] cited in The Queen v PM (No 2) [2015] ACTSC 358 (The Queen vPM) at [19] and Saga v Reid [2010] ACTSC 59 at [99]-[101]. In The Queen vPM, Refshauge J carefully articulated the need for proportionality and that justice may require a response that does not involved the imposition of the sentence that was suspended, invoking the observation of Wood J in Tanner v Brown [2011] TASSC 59 at [94]:

Ultimately, the question of whether it would be unjust to activate a suspended sentence will depend on an evaluation of the individual circumstances of each case.  In assessing this question of whether it will be unjust to activate the sentence ‘the objective of the suspended sentence option as reformative as well as penal’ is to be borne in mind.  Thus relevant factors may include those that indicate the progress made by an offender in relation to his rehabilitation.  Some of the factors mentioned in the judgments of [R v Buckman (1988) 47 SASR 403] and [R v Marston (1993) 60 SASR 320] are indicative of this consideration: disproportion between the original offence and the breaching offence or offences, whether the nature of the offence suggested that the offender has lapsed into a non-law abiding way of life and the question of whether the offender had reverted to criminal conduct comparable to the offence for which the suspended sentence was imposed. Allied to this consideration were the matters referred to in Buckman that the offender was making a genuine attempt at rehabilitation and that there had been an observance of the conditions of the suspended sentence for 18 months. In summary, relevant to the reformative aspects of the suspended sentence option is whether the suspended sentence is having its desired effect in terms of rehabilitation of the offender. See also Stanitzki v Higgins (1994) 63 SASR 309.

25․In R v Kelly (No 2) [2021] ACTSC 253 (Kelly (No 2)) at [15] Refshauge AJ identified the following factors as relevant to the question of whether the suspended sentence should be imposed or the offender re-sentenced:

(a)   the proportion of the Good Behaviour Order served before the breach occurred: R v Curtis (No 2) [2016] ACTSC  34 at [18];

(b)   the rehabilitation achieved in the time during which the Good Behaviour Order has been served: R v Curtis (No 2) at [18];

(c)   the prospects of further rehabilitation: R v Curtis (No 2) at [18];

(d)   the relative seriousness of the offence, or offences, which constituted the breach of the Order, and, in particular, whether imposing the suspended sentence would be disproportionate to that seriousness: Saga v Reid and Collett at [88];

(e)   whether the breaching offence, or offences, is, or are, of similar conduct: R v CA [2016] ACTSC 378 at [21];

(f)    whether the breach is, or breaches are, so serious as to show a disregard of the need to be of good behaviour: R v Ogilvie at [38];

(g)   whether the offender has been warned of the breaches, especially if they are not breaches constituted by further offending: R v Cuthel [2016] ACTSC 91 at [18]; R v Ogilvie at [75];

(h)   the offender’s level of understanding of the obligations and the terms of the Good Behaviour Order and of the consequences of the breach: R v PM (No 2) [2015] ACTSC 358 at [20]-[22]; and

(i)    the nature of judicial and community resources previously devoted to the offender: R v Bennett [2017] ACTSC 104 at [11].

26․It is necessary, as noted in Kelly (No 2) at [15] to have regard to the facts of the original offending and the breach. I have had regard to the facts of the original offending as recorded in Bower and Bower (No 2), as well as to the features of the offences identified by his Honour as relevant to the objective seriousness of the offending conduct.

27․In Bower at [18] to [32], Refshauge AJ sets out the facts in relation to all of the offences excluding the two offences from April 2022. In short summary, the facts reveal that the 2018 burglary and theft saw the offender enter the secure car park of an apartment complex without permission and in company. A set of bolt cutters was used to break into a secure cage and some tools were taken, the value of which was unknown. The 6 August 2020 offences, being one count of being knowingly concerned in a burglary, one count of dishonestly riding in a stolen motor vehicle, one count of receiving stolen property and one count of obtaining financial advantage by deception, saw the offender act as a lookout in a stolen vehicle while a residence was burgled. Several items were stolen of relatively low value. The offender then used a credit card stolen in the burglary to make two purchases totalling around $66.

28․On 8 August 2020, the offender was again a passenger in a stolen motor vehicle and made another purchase with a stolen credit card totalling $187. Later that day the offender was a passenger in another stolen motor vehicle. This conduct accounts for two counts of dishonestly riding in a stolen motor vehicle and one count of obtaining financial advantage by deception.

29․On 28 August 2020, the offender was found to be in possession of a number of items that were stolen including a driver licence, keys and a passport. This conduct was the basis of one count of unlawful possession.

30․In Bower No 2 at [17] to [28], his Honour details the facts of the April 2022 offences. In summary, the offender stole a set of car keys from a jacket the owner had hung up in a public area. This was the basis of the minor theft charge. The offender and her partner drove around in the vehicle. This conduct was the basis of one count of dishonestly riding in a stolen motor vehicle. The vehicle was found and returned to the owner.

31․In Bower and Bower (No 2) His Honour was required to deal with two offences of driving while disqualified committed in January and February 2017. These offences were originally the subject of Suspended Sentence Orders in the ACT Magistrates Court on 16 August 2017. The offender breached those orders when she committed the 2018 burglary and theft offences. 

32․Consistent with the observations of Refshauge AJ, the offences of themselves were not gravely serious or sophisticated examples of the offences. The property offences were not accompanied by vandalism or extensive damage.  Like his Honour I have had regard to the applicable maximum penalties. The possession of identity documents, credit cards and riding in stolen motor vehicle offences represent real inconvenience to those victims of the offender’s conduct. The offending does reflect a pattern of consistently poor decision making on the part of the offender over a period of time. 

To impose the suspended sentence or re-sentence the offender?

33․Having determined that I am satisfied the offender is in breach of the SSO, the question is whether to impose the suspended sentence or re-sentence the offender.

34․The offender was re-sentenced on 18 January 2024. The first admitted breach occurred on 6 February 2024. The breaches occurred at the very start of the offender’s GBO, and therefore a very small proportion of the GBO had been served. This must be viewed in the context of the offender now having been effectively, under a court order to accept supervision in the community since 4 January 2022. Since that time the offender has spent small periods remanded in custody, but for the great majority of the time since January 2022, the offender has been in the community subject to an obligation to engage with ACT Corrective Services.

35․The subsequent affidavit dated 2 July 2024 demonstrates that the offender has complied to a significant extent with the quite onerous obligations under the Good Behaviour Order since 21 March 2024. A consideration of the extent of the offender’s rehabilitation must recognise that the period which has now elapsed since she committed an offence is over two years.

36․While there was some suggestion on 5 June 2024 that the offender had gained employment, that has now ceased. It was submitted that the offender has developed an ongoing back injury that is an obstacle to certain types of employment.  The offender maintains an aspiration for full-time employment and is undertaking further study, having now enrolled in an online business course though the Canberra Institute of Technology.

37․The offender did provide two medical documents in support of some of the ongoing physical health injuries that she is experiencing, including the injury she has suffered to her back. The offender frankly acknowledged that she is now experiencing the consequences of long term drug use on her physical health and this is bringing home to her the serious consequences of her poor choices. The offender identified that she has a long-term goal of ceasing methadone because of what she considers to be some of the negative effects of its use. The offender has stable accommodation and some family support in the community who are assisting her in a range of ways including with respect to her health and her desire to re-build connection with her children.  

38․The breaches are not particularly serious examples of breach conduct. Significantly, the breaching conduct does not include further offending. The breaching conduct is demonstrative of ongoing difficulty on the part of the offender in meeting all the demands of supervision. The submission was made to the effect that the supervision is overwhelming the offender’s own plans as to how she can consistently maintain abstinence and address her physical and mental health challenges. The affidavit of Ms Pettett deposes that the offender “appears to be often in crisis due to medical concerns, changes in medication and expectations of supports for herself or her support for others such as her children’s father”. Her engagement with the service was recorded as “spasmodic”. That said, she has made some effort to engage and explain the occasions when she has been unable to entirely comply. The affidavit did not identify any substantive support such as counselling or programs that have been arranged for the offender or in which she has been enrolled by ACT Corrective Services, that she has failed to attend.

39․The breaching conduct in relation to supervision is largely about a failure to precisely engage with the administration of the supervision order as opposed to substantive programs or courses designed to assist her with health, employment or housing.

40․The offender’s substance use, demonstrated by a positive urinalysis result in February 2024 and admitted by the offender is, at first blush, a more serious breach to the extent that her use of drugs has an established connection to her offending conduct and poor decision making. That said, the offender has a prescription for cannabis and methadone, the only substances detected in more recent testing.

41․This mixed pattern of compliance against a background history consistent with an offender challenged by substance misuse and mental ill-health, is comprehensively recorded in the judgments and sentencing remarks of Refshauge AJ.  His Honour made this observation on 18 January 2024: “the opinion of the treatment team and supervision team is that without significant support and assistance with her mental health and relationship issues Ms Bower will find it difficult to avoid the triggers that have returned her to drug use. The view is that she has shown in her efforts in actual drug and alcohol counselling and treatment in which she has engaged significant progress. This suggests that she has the skills to maintain abstinence but that she is at risk if she is unable to learn skills about managing domestic and personal relationships.”

42․His Honour goes on to lament at page [8] the limitations of the support that can be provided to a person on a DATO such that it is primarily focused on drug rehabilitation and does not extend to extensive supports targeting the psychological drivers of drug use and relapse for offenders experiencing ongoing mental health challenges. It is clear that the offender requires support for issues that extend beyond addiction; issues that are tightly intertwined with the challenge of addiction.

43․It is clear that for this offender the complex intersection of drug use, mental ill-health and problematic interpersonal relationships manifests in disorganisation in terms of life administration and a somewhat chaotic presentation to the rest of the world. That characterisation is consistent with her sporadic engagement with supervision.

44․The offender is well aware of the consequences of the breaching conduct and in my view, has a good understanding of the nature and extent of her obligations, she just has difficulty meeting them. The history of these proceedings demonstrates that the offender, by now, understands that she is risking a return to full-time imprisonment if she is unable to comply with an obligation to be of good behaviour. This is a matter where significant judicial, as well as community resources have been devoted to the offender, dating back to January 2022 when his Honour first determined to adjourn the substantive proceedings and grant the offender bail.

45․It has been observed in various decisions of this Court, including more recently in Director of Public Prosecutions v Carr [2024] ACTSC 130, that the Court must carefully consider the integrity of the justice system when dealing with an offender who has betrayed the opportunity to remain in the community while subject to a period of imprisonment. I must bear in mind the need to ensure that confidence in the criminal justice system influences the respect the community has for the law, one of the clearly stated objects in s 6 of the CSA Act. An approach to suspended sentences that undermines the community’s perception as to the effectiveness of that sentencing outcome is inconsistent with promoting respect for the law.

46․It cannot be ignored that a persistent feature of the offender’s criminal history and her engagement with this Court since January 2022, is a pattern of behaviour that betrays the opportunity for rehabilitation, either while on bail, while seeking treatment under the DATO, or by virtue of breaching Good Behaviour Orders. Acting Justice Refshauge summarised those breaches in Bower at [122]-[126]:

122. There are some other issues to be considered at this time. In the first place, Ms Bower committed the first series of offences, the 2018 offences, while on conditional liberty. Although not affecting the objective seriousness of the offences (Beniamini v Craig [2017] ACTSC 30 at [114]), it does require a more serious sentence because, at least in part, of the abuse of the liberty granted her that the commission of these offences in those circumstances constitutes: Auld v The Queen [2013] ACTCA 21 at [9]; R v Collins (No 2) [2021] ACTSC 262 at [117].

123. On 16 August 2017, Ms Bower was convicted of five offences. The first in time was an offence of driving whilst disqualified on 17 May 2016. For this offence she was fined $600.

124. The second series involved driving whilst disqualified as a repeat offender on 29 January 2017, and also failing to state her name and date of birth to a police officer. When she was intercepted by police, she stated that she was Chelsea Bower, born 13 April 1998. For that offence she was fined $50. She was, at the time, driving when she had been disqualified for holding or obtaining a licence on 9 January 2017. For that offence she was sentenced to imprisonment for four months, suspended immediately with a Good Behaviour Order for 18 months. Thus, the offences of 20 May in 2019 breached that Good Behaviour Order.

125. The third series involved her driving whilst disqualified as a repeat offender and failing to state her name and date of birth to a police officer. On this occasion, on 11 February 2017, she was driving not very long after the earlier offences, and she was again intercepted by police. She again falsely stated that her name was Chelsea Bower, born 13 April 1998. She was still disqualified from holding or obtaining a driver licence. For failing to state her name and date of birth, she was fined $500 and for the driving whilst disqualified she was sentenced to six months imprisonment, released after two months when the balance of the term of imprisonment was suspended for a Good Behaviour Order for 18 months.

126. These two Good Behaviour Orders will be breached by convictions for the sentences committed on 20 May 2018.

47․The offender has had several chances to embrace the opportunity extended to her to remain in the community and pursue rehabilitation. On each occasion the offender has been unable to strictly comply with the conditions of her liberty. This circumstance favours the imposition of the suspended periods of imprisonment. That said, the entrenched addiction that afflicts the offender in combination with her mental health, and increasingly, her physical health challenges, make strict compliance difficult for her to achieve.

48․The nature of the breaches on this occasion exposes the very real difficulties that the offender experiences with organisation and personal administration – in some instances compounded by what appears to be increasing physical ill-health.  I again return to the significance of the last offence committed by the offender being some two years ago. To the extent that an absence of re-offending reflects successful rehabilitation, the offender has, in that regard, demonstrated significant progress.

49․The prosecution did not submit that the suspended sentences should be imposed. Indeed, they supported the submission made on the offender’s behalf that the appropriate outcome is for the offender to be re-sentenced in the same terms as those imposed on 18 January 2024, without the requirement for supervision. This is a position that recognises the gravity of the breach conduct and the challenges the offender continues to manage in the community without having engaged in further offending conduct.

50․It is a position endorsed in the recommendation contained in the most recent affidavit from ACT Corrective Services where the author observed “that it may be beneficial for [the offender] to have her supervision component removed to allow her the opportunity to progress with pro-social protective factors including full time employment”.

51․The offender undoubtedly presents with an unenviable record of failing to comply with community based orders, more often than not by reoffending. The conduct that puts her in breach on this occasion is not behaviour demonstrative of an abandonment of the requirement to be of good behaviour generally. Rather it is demonstrative of the supervision available through ACT Corrective Services not providing supports that assist her to attend to her immediate focus; her physical health and obtaining full-time employment. The sentences imposed in the past in relation to the matters before this Court have been carefully and specifically targeted to motivate the offender along a particular pathway of rehabilitation. Progress has indeed been made. In my view, supervision is now reaching a point where the obligation it creates is not in Ms Bower’s or the community’s overall interest, when she is consistently demonstrating difficulty meeting obligations that are more about the administration of supervision.

52․Having considered all of the relevant factors, I have determined that the appropriate outcome is for the offender to be re-sentenced in almost the same terms as those imposed on 18 January 2024. Consistent with the agreed position of the parties and the views of ACT Corrective Services a supervision requirement will not be imposed. This is a risk for the offender. It removes access to supports intended to assist her.  In the end, I am satisfied that this is a risk the offender appreciates and a risk that must be considered in the context of a significant period where the offender has not reoffended. The offender should clearly understand that the commission of further offences during the period the suspended sentences will be in place, given the history of these proceedings, would be viewed more seriously than the conduct that put her in breach on this occasion.

53․There is a matter that I must address for completeness. On the last occasion the matter was before me it became apparent that there was no reference in the sentencing remarks from 18 January 2024 to one of the charges, being SCCAN138/2021 (receiving stolen property). The order produced on that day includes that charge and records a sentence of 10 months imprisonment suspended immediately.  It is clear by virtue of the order of the Court that Refshauge AJ intended to deal with that charge on that day by the imposition of a suspended sentence.

54․The sentence imposed on that charge on 18 January 2024 is 4 months longer than the sentence originally imposed on that charge. There being no mention of that charge in the sentencing remarks, there is no indication of the basis for the increase in the period of imprisonment imposed on that charge. The matter was adjourned for the parties to consider how I should deal with the re-sentence for that offence in those circumstances.

55․I was greatly assisted by submissions made by the prosecutor with which Ms Duffy for the offender agreed. I was provided with a draft written order produced by his Honour to the parties on 18 January 2024. That draft indicates a period of imprisonment of 6 months for SCCAN2021/138. It is the order produced by the Court that records a period of 10 months of imprisonment. The prosecution has suggested that this was simply an error, in that the sentence that appears above SCCAN2021/138 is 10 months imprisonment and the error may have been the result of an inadvertent duplication. This is supported by the fact that his Honour imposed the same period of imprisonment for every other charge that he originally imposed in Bower (No 2).

56․The order of the Court produced on 18 January 2024, makes clear that SCCAN138/2021 was the subject of an outcome that saw a period of imprisonment imposed. I intend then to deal with the charge as part of the re-sentence pursuant to s 110 of the CSA Act. While I am not bound by the original sentence, having considered the relevant facts and circumstances, it is appropriate in my view to impose periods consistent with those originally imposed.

57․In view of the time that has passed since the original sentence, the period within which the offender has not reoffended and the period she has been subject to one form of supervision or another, I consider it appropriate that the period within which the offender will be required to be of good behaviour be reduced from the 2 years, 10 months and 4 days set on 18 January 2024.

58․The 2017 driving while disqualified offences were committed some 7 years ago. In 2021, the offender was sentenced to a period of full-time imprisonment for 8 months for another offence of driving while disqualified committed in May 2019. She has not committed the offence of driving while disqualified since the imposition of that 2021 sentence. The offender has, over the course of the proceedings before his Honour, spent time on remand including a period of 333 days, from August 2020. Some of that time was taken into account when the offender was sentenced in the ACT Magistrates Court in relation to other offending.

59․In my view, it is appropriate to re-sentence the offender for the 2017 driving offences to an outcome that will see those matters finally come to an end. This will necessarily result in a reduction in the total period of imprisonment I impose as compared with the original sentence of 4 years of imprisonment.

60․Taking into account the protracted nature of the proceedings including the age of the offences, as well as the period the offender has spent in custody since they were committed in 2017, I consider it appropriate for those matters to be the subject of a period of imprisonment that will expire with the rising of the Court.

Orders

61․For the reasons I have outlined I make the following orders:

(1)In each case I am satisfied that the offender is in breach of the terms of the good behaviour order.  In each case the good behaviour order is cancelled and I  re-sentence the offender in the following terms:

(a)On the charge of driving while disqualified (CC2017/2150) the conviction is confirmed and the offender is sentenced to the rising of the Court.

(b)On the charge of driving while disqualified (CC2017/7396) the conviction is confirmed and the offender is sentenced to the rising of the Court.

(c)On the charge of burglary (CC2019/1002) the conviction is confirmed and the offender is re-sentenced to 12 months of imprisonment commencing on 7 August 2024 and ending on 6 August 2025.

(d)On the charge of theft (SCCAN 60/2021) the conviction is confirmed and the offender is re-sentenced to 3 months of imprisonment commencing on 7 June 2025 and ending on 6 September 2025.

(e)On the charge of burglary (SCCAN 52/2021) the conviction is confirmed and the offender is re-sentenced to 10 months of imprisonment commencing on 7 March 2025 and ending on 6 January 2026.

(f)On the charge of receiving stolen property (SCCAN 138/2021) the conviction is confirmed and the offender is re-sentenced to 6 months of imprisonment commencing on 7 September 2025 and ending on 6 March 2026.

(g)On the charge of dishonestly riding in a motor vehicle without consent (CAN 10265/2020) the conviction is confirmed and the offender is re-sentenced to 8 months of imprisonment commencing on 7 November 2025 and ending on 6 July 2026.

(h)On the charge of obtaining property by deception (CAN 10260/2020) the conviction is confirmed and the offender is re-sentenced to 6 months of imprisonment commencing on 7 April 2026 and ending on 6 October 2026.

(i)On the charge of dishonestly riding in a motor vehicle without consent (CAN 10266/2020) the conviction is confirmed and the offender is re-sentenced to 9 months of imprisonment commencing on 7 June 2026 and ending on 6 March 2027.

(j)On the charge of obtaining property by deception (SCCAN 57/2021) the conviction is confirmed and the offender is re-sentenced to 6 months of imprisonment commencing on 7 December 2026 and ending on 6 June 2027.

(k)On the charge of unlawful possession of stolen property (CAN 11752/2020) the conviction is confirmed and the offender is re-sentenced to 3 months of imprisonment commencing on 7 April 2027 and ending on 6 July 2027.

(l)On the charge of dishonestly riding in a motor vehicle without consent (CAN 5810/2022) the conviction is confirmed and the offender is re-sentenced to 9 months of imprisonment commencing on 7 April 2027 and ending on 6 January 2028.

(m)On the charge of minor theft (CAN 5809/2022) the conviction is confirmed and the offender is re-sentenced to 2 months of imprisonment commencing on 7 December 2027 and ending on 6 February 2028.

(2)This gives a total sentence of 3 years and 6 months commencing on 7 August 2024 and ending on 6 February 2028. This sentence is to be immediately suspended upon the offender entering into an undertaking to be of good behaviour, to comply with the core conditions as set out in the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months.

I certify that the preceding sixty-one [61] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor.

Associate:

Date: 9 August 2024