Director of Public Prosecutions v Crawford (a pseudonym)
[2023] ACTSC 266
•22 September 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Crawford (a pseudonym) |
Citation: | [2023] ACTSC 266 |
Hearing Date (s): | 1 September 2023 |
Decision Date: | 22 September 2023 |
Before: | Taylor J |
Decision: | See [76]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – drive a motor vehicle without consent – aggravated dangerous driving – trespass – breach of Intensive Correction Order |
Legislation Cited: | Children and Young People Act 2008 (ACT) Crimes (Sentence Administration) Act 2005 ACT, s 65 Crimes (Sentencing) Act (ACT) 2005, ss 6, 7, 10, 33(1) Criminal Code 2002 (ACT), s 318(2) Magistrates Court Act 1930 (ACT), s 90A Public Order (Protection of Persons and Property) Act 1971 (Cth), s 11(1) Road Transport (General) Act 1999 (ACT), ss 63, 69 Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 7A(1) |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 247 CLR 572 Cole v The Queen [2019] ACTCA 3 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 Green v The Queen; Quinn v The Queen [2011] HCA 39; 244 CLR 462 Hili v The Queen [2010] HCA 45; 242 CLR 520 Hillier v DPP (NSW) [2009] NSWCCA 312; 198 A Crim R 565 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Kelly v Ashby [2015] ACTSC 346 KT v R [2008] NSWCCA 51; 182 A Crim R 571 Lloyd v R [2022] NSWCCA 18 Mann v Tremethick (No 2) [2023] ACTSC 31 Mill v The Queen (1998) 166 CLR 59 MT v The Queen [2021] ACTCA 26 Muldrock v The Queen [2011] HCA 39; 22 CLR 120 Pearce v The Queen (1998) 194 CLR 610 R v Collins [2019] ACTSC 302 R v Crawford (a pseudonym) [2022] ACTSC 166 R v Dowling (No 2) [2021] ACTSC 200 R v DU (No 5) [2022] ACTSC 172 R v Elphick [2021] ACTSC 9 R v Fry [2021] ACTSC 138 R v Gardner (No 3) [2023] ACTSC 229 R v Hagen [2022] ACTSC 362 R v Hearne [2001] NSWCCA 37; 124 A Crim R 451 R v Kilic [2016] HCA 48; 259 CLR 256 R v Law [2021] ACTSC 351 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v Massey (No 3) [2021] ACTSC 156 R v McColl [2022] ACTSC 386 R v Mills [1998] 4 VR 235 R v Pham (2015) 256 CLR 550 R v Rosewarne [2021] ACTSC 217 R v Seymour [2021] ACTSC 152 R v Sullivan (No 2) [2020] ACTSC 215 R v TL [2017] ACTCA 18 R v Toumo’ua [2017] ACTCA 9 R v Tran [1999] NSWCCA 109 R v Van Rysewyk [2008] NSWCCA 130 R v Way (2004) 60 NSWLR 168 R v Williams-Savage [2021] ACTSC 271 Saipaini v The Queen [2021] ACTCA 5 Smith v The Queen [2011] NSWCCA 163 Taylor v The Queen [2014] ACTCA 9 |
Parties: | ACT Director of Public Prosecutions Zack Crawford (a pseudonym) ( Offender) |
Representation: | Counsel D Swan ( DPP) D Turner ( Offender) |
| Solicitors ACT Director of Public Prosecutions ALS NSW/ACT ( Offender) | |
File Numbers: | SCC 190 of 2023 SCC 191 of 2023 |
TAYLOR J:
Introduction
1․On 19 April 2023 in the ACT Magistrates Court the offender was committed to this Court for sentence after entering pleas of guilty to the following offences:
(i)CAN465/23 – Drive a motor vehicle without consent, contrary to s 318(2) of the Criminal Code 2002 (ACT). The maximum penalty for this offence is 5 years imprisonment, a fine of 500 penalty units ($80,000), or both.
(ii)CAN3844/23 – Aggravated dangerous driving, as a repeat offender, contrary to s 7A(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT). The maximum penalty is 5 years imprisonment, a fine of 500 penalty units ($80,000), or both. This offence also carries an automatic licence disqualification of 12 months pursuant to s 63 of the Road Transport (General) Act 1999 (ACT) (RTGA).
2․A further offence was transferred to this Court from the ACT Magistrates Court pursuant to s 90A of the Magistrates Court Act 1930 (ACT):
(iii)CAN466/23 – Trespass, contrary to s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth). The maximum penalty for this offence is a fine of 10 penalty units ($3,130).
Facts
3․On 6 January 2023 Mr Anthony Calabro reported his Ford Falcon XR6T, bearing the Victorian number plate WYE298, stolen after a burglary occurred at his residence.
4․On 7 January 2023 at 10:52pm, ACT Police Operations were advised by New South Wales Police (NSW Police) that the Ford was travelling southbound at high speeds on the Federal Highway, Eaglehawk, NSW. The Ford now bore an ACT licence plate, YNK73Q.
5․NSW Police commenced pursuit of the Ford however terminated due to the Ford travelling into the ACT.
6․A short time later, police located the Ford travelling southbound at high speeds on the Monaro Highway, Fyshwick. Police observed the Ford take the off-ramp from the Monaro Highway onto Hindmarsh Drive. The Ford travelled through the solid red light of the intersection before continuing westbound on Hindmarsh Drive.
7․Police maintained observation of the Ford as it turned left onto Jerrabomberra Avenue, Symonston. Police lost sight of the Ford for a very short time before relocating it back on Hindmarsh Drive, westbound towards Yamba Drive.
8․Police were stationary at the very western end of Hindmarsh Drive, just prior to the intersection of Yamba Drive, with tyre deflation devices. Police successfully deployed a tyre deflation device that struck the front two tyres and began to deflate them immediately.
9․Police activated their emergency lights and sirens behind the Ford, signalling for it to stop. The Ford failed to do so, accelerating away, leading to a subsequent police pursuit.
10․The Ford turned left onto Yamba Drive, increasing speed as smoke began to emanate from the now fully deflated tyres. The speed of the Ford dropped as the front tyres separated from the rims. Vehicle control deteriorated as the Ford drifted and swerved across lanes. The Ford maintained speeds of about 80 km/h in a 60 km zone.
11․Police terminated the pursuit, maintaining a longer distance observation instead, as the Ford continued northbound. A very short time later, police located the Ford, stationary, outside of 9 Bee Place, Isaacs. The engine of the Ford was on and the driver side door open.
12․Police located Mr Joel Lonergan, the co-offender, in the residence of 9 Bee Place. Police subsequently located the offender in the backyard of 7 Bee Place, hiding in a bush. Police arrested the offender. At no time was the offender given permission to enter 9 Bee Place, nor drive the Ford.
13․At the time of arrest, the offender was wearing band-aids on his face. When police asked why, the offender replied, “I was told to cover my tattoos”.
14․Police conducted checks on the Vehicle Identification Number of the Ford, which was located in the open doorframe, and confirmed it had been stolen.
15․The Ford was conveyed to a secure AFP storage facility for forensic analysis. Subsequent analysis confirmed the offender was one of two contributors to a mixed DNA profile obtained from the driving controls of the Ford.
Subjective circumstances
16․I have had the benefit of reading the careful reasons of Elkaim J when he sentenced the offender on 11 July 2022: R v Crawford (a pseudonym) [2022] ACTSC 166.
17․Those reasons are consistent with the matters highlighted in the Pre-Sentence Report (PSR) before this Court in terms of the background and circumstances of the offender. The offender was 19 at the time of the offending and spent his 20th birthday in custody.
18․The offender has a significant criminal history for a young man. This is the second occasion that he has appeared for offences committed as an adult. Within weeks of being released from custody arising from the sentences imposed by Elkaim J in July 2022, the Sentence Administration Board (SAB) had submitted breach documentation arising from the offender’s failure to accept supervision under the terms of the Intensive Correction Order (ICO). On 18 August 2022 the ICO imposed by Elkaim J was cancelled by the SAB and the offender returned to full-time custody.
19․On 16 December 2022 the offender was again released from custody under the conditions of the ICO. By 23 December 2022 he had failed to respond to attempts at communication from ACT Corrections pursuant to the terms of the ICO and he was arrested in relation to these offences on 9 January 2023. He has remained in custody since then. The ICO has not been cancelled and this is a matter that must be dealt with as part of these proceedings.
20․The offender is Aboriginal with connection to both Wiradjuri and Darkinjung country. Sadly, he does not consider himself to have a strong connection with his culture. As an expression of his identity and perhaps in an effort to create a stronger sense of cultural connection, he does engage with support available to him through Winnunga Nimmityjah Aboriginal Health Service and the Indigenous Liaison Officers at the prison. To the author of the PSR he described a childhood and adolescence marred by traumatic events, including the death of family members and close friends. He described limited contact with his father and a positive relationship with his mother. The close nature of that relationship is supported by a reference from his mother, tendered in these proceedings. The offender’s mother clearly loves her son and wishes to support him to move away from engagement with the criminal justice system. She refers to some of the traumatic events in the offender’s young life as well as the ongoing impact of his father’s treatment of him as a child. Both the offender and his mother described a network of support available to the offender through extended members of the family.
21․The offender’s mother and the author of the PSR identify his peer group as one of the challenges for the offender. The offender reported that he has very few friends or associates that are not involved in criminal activity and drug use. While he expressed motivation to make new friends upon his release, this is clearly a risk factor for the offender.
22․The offender expressed a desire to engage with formal rehabilitation services. In support of this, a letter from We Help Ourselves (WHOS) rehabilitation services is before the Court and confirms that the offender has been assessed as suitable for their residential rehabilitation program. Further, while in custody the offender has made contact with the Ngunnawal Bush Healing Farm and an email from their Operations Manager is before me. His application for that program is on hold awaiting the offender ceasing his use of Buvidal. The relevance of the email to these proceedings is, I think, to demonstrate that the offender is seeking out options to assist him with the challenge that the use of illicit substances presents.
23․The offender has no education beyond year 8. He has a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) and he reported that this made his schooling a struggle. He has no record of employment. His stepfather, who appears to be a supportive influence, indicated an employment opportunity for the offender at his place of work upon the offender’s release.
24․The author of the PSR endorses a description of the offender, adopted in an ICO reinstatement report from October 2022, that the offender “has a major problem with controlled drugs.” This description is supported by the offender’s admission to regular use of methylamphetamine, heroin, gamma hydroxybutyrate (GHB) and non-prescribed benzodiazepine. The offender frankly admitted to returning to the use of drugs soon after the opportunity to be in the community was extended to him by Elkaim J in July 2022.
25․The offender is currently prescribed Buvidal in custody to manage his opioid addiction as well as medication to address feelings of depression and anxiety. The offender described his current mental health condition as stable.
26․The offender was able to identify his drug use as problematic and directly connected to his offending behaviour. He also indicated that his mental health further contributed to his poor decision making.
27․It is unsurprising then against the background of this information that the offender’s primary risk factors were identified as unaddressed drug use, negative peer influence, unemployment and mental health. The author of the PSR observed, “if [the offender] is to make positive changes, he will need to be wholly dedicated to removing himself from negative peers and embrace the potential residential rehabilitation or employment opportunity that has been offered to him.” It is also unsurprising that he was found unsuitable for a community service work condition and for an ICO.
28․As part of these proceedings, I have been provided with a copy of a report prepared by Dr Gerald Chew, referred to in the sentencing remarks of Elkaim J at [21]:
21. Dr Chew is a psychiatrist who conducted a psychiatric assessment of the offender on 30 June 2022. He describes the offender’s current depression and thoughts of suicide. He said that he has been depressed and anxious while in the AMC. He expressed remorse for his behaviour. Dr Chew describes the extent of the offender’s drug use.
22. According to Dr Chew the offender has a primary diagnosis of major depressive disorder with anxious distress. He said that the offender’s drug use “spiralled out of control and he found himself in a situation needing substantial amounts of money to feed his addiction”. The doctor goes on to say:
I think that with treatment, rehabilitation and abstinence from illicit drugs that his prognosis is improved and his risk of reoffending will be much reduced.
29․Dr Chew’s report specifically details that the offender’s drug use began at a young age and quickly escalated to daily use of methylamphetamine and regular use of heroin. Dr Chew also records that the offender was subjected to significant violence at the hands of his father, who spent some time in prison, and that his best friend committed suicide when the offender was a young teen.
Criminal history
30․I have already referred to the offender’s criminal history. It is extensive in relation to offences committed as a young offender and contains entries for similar offending including six entries for aggravated dangerous driving, five entries for drive/take motor vehicle without consent and one entry for drive at police officer. On any view, the offences which are the subject of these proceedings could not be described as out of character or an aberration.
Time in custody
31․The offender has been in custody since his arrest on 7 January 2023.
Sentencing considerations
Objective seriousness
32․The maximum penalty provided for by the legislature “serves as an indicator of the relative seriousness of the offence”: Muldrock v the Queen [2011] HCA 39; 22 CLR 120 at 133; [31]. An assessment of objective seriousness and where offending conduct sits on the spectrum of offending is an important consideration: R v Kilic [2016] HCA 48; 259 CLR 256 at [19]. I approach this task consistent with R v Toumo’ua [2017] ACTCA 9 at [24] where it was observed:
[T]hat references to low-range, mid-range and high-range objective seriousness are unlikely to be helpful in this jurisdiction. It is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case.
33․As has been observed by sentencing judges in this court, motor vehicles are capable of causing serious damage and injury, including death: per Mossop J in R vLaw [2021] ACTSC 351 (Law) and Refshauge AJ in R v Seymour [2021] ACTSC 152 (Seymour).
Aggravated dangerous driving, repeat offender
34․The offending conduct was in part captured by dash-cam footage from inside the police vehicle in pursuit of the offender. It is compelling viewing. It highlights what I consider to be the most dangerous aspect of the offender’s conduct, when he moved the vehicle onto the incorrect side of Yamba Drive straight into oncoming traffic. The footage reveals other vehicles on the road at the time.
35․The circumstance that fulfils the criteria for statutory aggravation in this matter is:
(a)that the offender failed to comply as soon as practicable with a request or signal given by a police officer to stop the vehicle: s 7A(1)(i).
36․R vRosewarne [2021] ACTSC 217 (Rosewarne) at [122] and Law at [31] are instructive as to the features of the offending that inform the assessment of objective seriousness. They are summarised as follows:
(a)the extent to which the public and other road users were put at risk, the number of them and their vulnerability (children, the elderly, frail or disabled);
(b)the nature of the location where the driving occurred (residential, busy commercial, shared user zone) and the time of day or night of the driving;
(c)whether there were any passengers in the vehicle who were put at risk, especially if there were young children;
(d)the variety and duration of aspects of the driving that were dangerous and the extent to which it was a multifaceted and/or a lengthy course of conduct especially factors such as driving into oncoming traffic, onto footpaths or other places where pedestrians are, through stops signs, red lights or give way signs;
(e)the distance driven and the period of the driving;
(f)the speed of the vehicle and regard for the conditions;
(g)whether the vehicle is engaged in a pursuit from police or fails to stop when directed to do so by police;
(h)whether the offender was intoxicated by alcohol or drugs and the degree of intoxication;
(i)whether there was competitive driving or street racing on a public road or showing off;
(j)any damage occasioned to other vehicles, objects, houses or people; and
(k)the extent to which police were put at risk when trying to terminate the driving.
37․In this matter there was no contest in relation to the key features of the offending relevant to those factors. They are:
(i)the driving occurred on arterial roads and residential areas at a times when other vehicles were on the road;
(ii)pedestrians were not put at risk by the driving;
(iii)the offending conduct included driving through a red light, driving at speed on the incorrect side of the road and the driving went over an extended period of time;
(iv)there was a passenger in the vehicle (the co-offender) the entire period of the offending conduct; and
(v)the pursuit continued even after the deployment of a tyre deflation device saw the tyres become separated from the rims of the vehicle.
Drive motor vehicle without consent
38․Rosewarne at [124] and R v Massey (No 3) [2021] ACTSC 156 (Massey (No 3)) at [29] identify factors relevant to an assessment of objective seriousness for this offence and can be summarised as follows:
(a)whether the offender drove or rode in the vehicle;
(b)the duration of the driving or riding;
(c)if the offender was the driver – the nature of the driving (unless charged separately);
(d)whether the driving caused damage to the vehicle (unless separately charged) and whether the vehicle was recovered undamaged and returned to the owner;
(e)whether the vehicle was used in the commission of another offence;
(f)whether false numberplates were affixed to the vehicle (unless charged separately).
39․In this matter there was no contest in relation to the key features of the offending relevant to those factors. They are:
(i)the tyres were damaged as a result of the use of a tyre deflation device;
(ii)false plates were affixed to the vehicle; and
(iii)the offender was the driver of the vehicle.
Moral culpability
40․The material establishes that the offender was exposed to violence during a disrupted, dysfunctional childhood. He has limited education and his engagement with the youth justice system coincides with his movement into drug use. This background of disadvantage gives rise to Bugmy considerations: Bugmy v The Queen [2013] HCA 37; 247 CLR 572 (Bugmy) at [44]. As the Court of Appeal observed in MT v The Queen [2021] ACTCA 26 (MT) at [62], citing Bugmy:
[T]he moral culpability of an offender may be reduced by a dysfunctional upbringing (for which the offender cannot be held responsible) as it may thwart the offender’s capacity to mature and thus explain their criminal behaviour.
41․As Bugmy makes plain at [44], an offender’s disadvantaged background should be given “full weight” in every sentencing exercise. In R v Hagen [2022] ACTSC 362 at [37]-[46], Baker J carefully tracks a decade of consideration by sentencing and appellate courts in NSW of the High Court’s determination about the significance of childhood deprivation or disadvantage. I cannot improve upon her Honour’s analysis. The High Court statement in Bugmy did not create a requirement for a strict causal connection to be established between the offending and an offender’s disadvantaged background before that background can be taken into account by a sentencing court. As Baker J observes “so much is clear from the High Court’s statement in Bugmy that ‘full weight’ must be given to an offender’s deprived background in every sentencing decision”: at [38].
42․As her Honour observes, the NSW Court of Criminal Appeal has expressed “divergent views” as to the requirement to establish a strict causal link with the offending before a disadvantaged background can operate to reduce moral culpability and the weight to be attached to general deterrence and denunciation: see [39] and the decisions her Honour cites.
43․More recently in Llyod v R [2022] NSWCCA 18, McCallum JA (as her Honour then was) stated at [27]:
The prevailing view appears to be that it is not necessary to establish the existence of a causal connection with the offending before having regard to Bugmy factors: see Dungay v R [2020] NSWCCA 209 at [136]-[153].
44․As Baker J observes in Hagan the extent of any reduction of moral culpability may be explained by reference to the strength of any link between the offending conduct and an offender’s background. A direct link may warrant a more significant reduction in moral culpability. It may also, as the High Court explained in Bugmy at [44], increase the importance of protecting the community from the offender. The impact of an offender’s disadvantaged background will be measured for each of the purposes of sentencing in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Crimes (Sentencing) Act).
45․Based on the material before me, I am satisfied that the offender’s disadvantaged background including violence at the hands of his father, disconnection from his father when he was incarcerated and a disrupted home life arising from his parents’ separation operates to “explain”, to some degree, his conduct. The offending, which can be characterised as impulsive, immature and unsophisticated, is reflective of the emotional and physical instability that attended to the offender’s formative years. This of course does not absolve the offender of any responsibility for his conduct, but rather sheds light on his conduct.
46․I find that the offender’s moral culpability is reduced to some extent by reason of his background of disadvantage and accordingly I moderate the weight to be given to the sentencing purposes of general deterrence, punishment and denunciation.
Conditional liberty
47․The offender was subject to an ICO as well as conditional bail from NSW when the instant offences were committed.
48․The prosecution submitted that this circumstance was an aggravating feature, the offender having betrayed the opportunity to be in the community and pursue rehabilitation: R v Tran [1999] NSWCCA 109 at [15]. The fact that an offender was on conditional liberty is relevant to the determination of the appropriate punishment for an offence and does not influence the objective seriousness of an offence: Smith v The Queen [2011] NSWCCA 163 at [26]. See also R v Way (2004) 60 NSWLR 168 at [90]-[92], Hillier v DPP(NSW) [2009] NSWCCA 312; 198 A Crim R 565 at [30] and R v Van Rysewyk [2008] NSWCCA 130 at [25].
49․I bear in mind that I must approach this feature of the offending with care so as to avoid double punishment: Kelly v Ashby [2015] ACTSC 346 at [61].
Parity
50․There being a co-offender in this matter, I must consider the principle of parity, described as embodying the concept of “equality before the law”: see Green v The Queen; Quinn v the Queen [2011] HCA 49; 244 CLR 462 at [28].
51․In Saipaini v The Queen [2021] ACTCA 5 at [56] the Court of Appeal articulated the principle in this way:
The “parity principle” is a manifestation of the fundamental principle of equality before the law. As Gibbs CJ said in Lowe v The Queen (1984) 154 CLR 606 at 609:
“[I]t is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence…”.
As his Honour observed, however, other things are not always equal. There may, for example, be differences in degree of involvement of offenders in a joint offence, differences in their antecedents, and differences in the charges brought against them. The present case is primarily concerned with the application of the parity principle in circumstances where the appellant came to be sentenced on a more serious charge than those to which his co-offenders entered pleas of guilty.
52․The co-offender pled guilty at a relatively early stage of the proceedings and he was sentenced in the ACT Magistrates Court on 9 May 2023. He was sentenced to a period of 10 months imprisonment for the ride in stolen motor vehicle offence and was fined $700 for the trespass offence. The co-offender has an extensive criminal history (though not for similar offences) and was not able to rely on his youth as a relevant factor given that he is 12 years older than the offender. At the time of committing the offences, the co-offender was subject to a Community Corrections Order and a NSW parole order for different kinds of offences. Taking into account those factors, as well as the material before me which includes the specific detail of the co-offender’s criminal history, the facts upon which he was sentenced and all of the matters relevant in these proceedings (including that the offender was the driver of the vehicle), I consider that an application of the principle will not see a significant difference in the outcome as between the co-offenders.
Guilty plea
53․The offender entered pleas of guilty at an early opportunity prior to the matters being committed to this court for sentence. It was accepted that utilitarian value is attached to the entry of those pleas and the offender is entitled to a discount reflecting that value: s 35 Crimes (Sentencing) Act. Section 37 of the Crimes (Sentencing) Act requires that I state the penalty that I would otherwise have imposed. I have afforded a discount of 25 percent in recognition of the offender’s guilty pleas to each offence.
Sentencing practice
54․The use of sentencing statistics and comparable sentences must be put in its proper place. They illustrate, not define, the possible range of sentences available: R v Pham (2015) 256 CLR 550 at 560 at [29]. Sentencing practice does not cap the upper nor lower ranges of a possible sentence: Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [51]-[53]. The provision of comparative cases is not to give effect to strict mathematical equivalence as between sentencing outcomes for the same offence but rather consistency in the application of relevant principles: Hili v The Queen [2010] HCA 45; 242 CLR 520.
55․Law, Rosewarne, Seymour, R v Collins [2019] ACTSC 302 and Mann v Tremethick(No 2) [2023] ACTSC 31 all dealt with the offence of aggravated dangerous driving. In each case periods of imprisonment were imposed. The prosecution provided a list of cases as examples of sentencing outcomes in this jurisdiction for the offence of driving a motor vehicle without consent including Massey (No 3), R v Elphick [2021] ACTSC 9, R v Williams-Savage [2021] ACTSC 271, R v McColl [2022] ACTSC 386, R v Dowling (No 2) [2021] ACTSC 200 and R v Fry [2021] ACTSC 138. Consistent with the variations in the nature of the offending and the subjective features of the offenders, the length and method of serving the periods of imprisonment varied. Generally sentences imposed for the offence of aggravated dangerous driving were in the 6-18 month range, while the sentences imposed for the offence of drive motor vehicle without consent were in the range of 8-14 months.
Cancellation of the ICO
56․The terms of the Crimes (Sentence Administration) Act 2005 (ACT) (Crimes (SA) Act) require a sentencing court, if an offender is subject to an ICO and is convicted or found guilty of an offence punishable by imprisonment, to cancel an ICO unless cancellation is not in the interests of justice: s 65(1) and (2). If the sentencing court cancels the ICO it must order that the remainder of the offender’s sentence be served by full-time detention: s 65(2)(b) Crimes (SA) Act.
57․Despite the able submissions of counsel for the offender he ultimately conceded that there was little he could rely on to persuade the Court that it is in the interests of justice not to cancel the ICO. The instant offences were committed when the offender was still to complete 18 months of the ICO, having been released only 60 days prior to the offending. The fresh offending is another offence of aggravated dangerous driving. During the period the offender was in the community subject to the ICO he demonstrated limited enthusiasm for compliance with breach documentation prepared within weeks of his initial release in July 2022. The offender does not appear to have made anything of the opportunity offered to him by Elkaim J in July 2022 to address his most significant risk factor, being his drug use. This is not a matter where it could be said that to cancel the ICO would be to interrupt an impressive path to rehabilitation: cf R v DU (No 5) [2022] ACTSC 172 at [26].
58․Given those background circumstances, the repeated commission of this kind of offence, the timing of the current offences and the purposes of sentencing most relevant in sentencing the offender for the fresh offences (addressed below), the concession reluctantly made by Mr Turner was entirely appropriate. A consideration of the relevant factors leads to a conclusion that there is no basis to determine that the interests of justice in this case would be served by not cancelling the ICO. In those circumstances the ICO must be cancelled and the offender ordered to serve the remainder. The consequence of the ICO cancellation creates an additional consideration in the sentencing process, in particular, how to craft an outcome to ensure the purposes of sentencing are best achieved. I address that consideration below.
Determination
59․In addition to the relevant matters contained at s 33(1) of the Crimes (Sentencing) Act to which I have had regard, I must consider the objects and purposes of sentencing contained in ss 6 and 7 of the Crimes (Sentencing) Act. Having found that the offender’s moral culpability for the offending is reduced, I have moderated to some extent the weight of general deterrence, punishment and denunciation. That said, the continued commission of these particular offences by the offender demands that there be a strong element of specific deterrence in sentencing the offender. The nature of the offending demands that protection of the community is an important sentencing consideration, as well as holding the offender to account for his conduct.
60․As I have already observed, the offender is now 20 years of age and was 19 years of age at the time these offences were committed. He was not a “young offender” for the purposes of Chapter 8A of the Crimes (Sentencing) Act, not being under the age of 18 years of age when the offences were committed. He was, nonetheless, still a young man and this is a relevant factor: R v TL [2017] ACTCA 18 (TL). The weight to be given to the youth of an offender does not vary with the seriousness of the offence: R v Hearne [2001] NSWCCA 37; 124 A Crim R 451.
61․The law recognises that allowances should be made for an offender’s youth by reference not just to their biological age: See MT at [41] where the following passage from KT v R [2008] NSWCCA 51; 182 A Crim R 571 at [23] was cited with approval:
The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender’s youth and not just their biological age. (R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender’s youth does not vary depending upon the seriousness of the offence (Hearne at [24]). Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult. (Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61]).
62․As I have noted in considering the offender’s moral culpability, the offender’s contact with the youth justice system coincides with the time in his life when he commenced drug use. It is a tragic feature of this matter that despite persistent contact with the youth justice system the offender was unable to be engaged in meaningful, long-term rehabilitation. The reasons for this, at least on the material before me are largely unexplained. It does not appear that the offender was ever supported into residential rehabilitation when he was consistently offending as a young person. His criminal history reflects that he spent long periods under the supervision of the Director-General responsible for the Children and Young People Act 2008 (ACT) and relatively long periods serving sentences in full-time detention as a young offender. It would appear that the offender has moved along a youth justice pathway that saw him readily transition from offending as a young person to offending as an adult.
63․The offender has expressed some remorse in relation to this offending. This is a factor relevant to his prospect of rehabilitation: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [41]. Counsel for the offender submitted that he is at real risk of institutionalisation. I do not consider that submission to be an exaggeration. In addition to periods in youth detention the offender has spent only months in the community as adult, marking his 18th, 19th and now 20th birthday in custody. He has no employment experience and limited education. His apprenticeship as a young offender now risks becoming a lifetime career in adult offending, unless some meaningful intervention occurs.
64․There are some matters to highlight in support of rehabilitation being still within his grasp. Notably he maintains the support of his mother and stepfather. He has the prospect of a placement in a residential rehabilitation service. This option was not available when the offender was sentenced by Elkaim J in July last year. The offender does not appear to have ever engaged in residential rehabilitation and in my view, he desperately requires it to assist him to address his drug use. If he is able to successfully address his drug use, the risk he presents to the community will be reduced. In TL, the Court of Appeal cited R v Mills [1998] 4 VR 235, at [39] with approval when the Court of Appeal of Victoria stated:
In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focussing on rehabilitation is to be preferred.
65․One clear difference in the offender between the July 2022 proceedings and these proceedings is that he is now engaged with an intervention he had apparently previously resisted, as noted by Dr Chew, and that is the use of Bivudal. This is conduct consistent with his expressed desire to address his drug use and his engagement in custody with residential rehabilitation services. It may also be consistent with the attainment of some maturity and a realisation that his drug use is controlling his life and will continue to do so unless he addresses it, having now spent his last three birthdays at the AMC. The offender was very frank with Dr Chew in 2022 that he was continuing to use while in custody. There is no evidence before the Court that he has continued to do so during this period of incarceration.
66․It should be clear to the offender by now that he cannot simply return to the community without proper supports in place to address his drug use and to disrupt the influence of his peer group and expect to change his life. Drug addiction is a condition that requires treatment and support. As the Chief Justice recently observed in R v Gardner (No 3) [2023] ACTSC 229 at [19]:
It is now well understood that drug addiction is a medical condition and that, even with appropriate treatment and support, persons undertaking rehabilitation can suffer setbacks. It may also be accepted that a setback does not necessarily spell the end of a course of rehabilitation.
67․Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community safety and in the public interest: Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]. I am satisfied that the offender is capable of rehabilitation if he draws on the supports available to him in the community and if he is genuine in his desire for reform. I consider his current use of Bivudal and his engagement with residential rehabilitation services to be indicators that his desire for reform is authentic. His immediate history provides a basis for some hesitation in expressing that capability as “strong” or even “good” prospects for rehabilitation. This is a compelling reason to craft an outcome that will provide for lengthy, close supervision for the offender when he is released into the community.
68․It is my view that the only appropriate outcome for the two driving offences before this Court, considering possible alternatives, is a period of imprisonment: s 10 Crimes (Sentencing) Act. Given the factors I have identified relevant to the offender’s struggle with community-based compliance and the purposes of sentencing most significant in this matter, those sentences of imprisonment must be full-time periods.
69․It was accepted by the prosecution that it is appropriate for a significant degree of concurrency in light of the simultaneous commission of the driving offences. They are nevertheless separate offences. I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, applying the principal of totality: Pearce v The Queen (1998) 194 CLR 610 at 623-624. I must consider whether the sentence imposed is “just and appropriate”: Mill v The Queen (1998) 166 CLR 59.
70․The ICO imposed by Elkaim J to begin on 14 July 2022 was a total period of 2 years, 1 month and 30 days to expire on 12 September 2024. In addition to determining the relationship between the two instant offences I must also determine how best to structure them with the remaining period to be served arising from the cancelled ICO. I must set a non-parole period taking into account the existing sentence (the ICO period) and the additional sentence for the instant offences. As was fairly pointed out by the prosecutor, the reality of the offender’s non-compliance is that he spent much of the time between the date of the imposition of the ICO (14 July 2022) and the date he was arrested for the fresh offending (7 January 2023), in custody. It is appropriate that any non-parole period begin on the day the ICO commenced and both counsel endorsed this approach. I note this is the approach adopted by Mossop J in R v Sullivan (No 2) [2020] ACTSC 215 (Sullivan (No 2)) when as ICO was cancelled as part of sentence proceedings for fresh offending.
71․Like Mossop J in Sullivan (No 2) I consider that the appropriate approach in this instance is to attribute the time the offender has been in custody to the sentence subject to the ICO. To backdate the start date of the sentence for the fresh offending to 7 January 2023 would provide a benefit to the offender not warranted in all of the circumstances of this case and would avoid the intention of s 65 of the Crimes (SA) Act. The prosecution conceded that a small period of concurrency between the existing sentence and the sentence for the fresh offending would not be inappropriate.
72․Counsel for the offender submitted that a non-parole period in the vicinity of 50 percent would see appropriate weight attached to rehabilitation and protection of the community and additionally provide a lengthy, structured regime to guard against the offender returning to past behaviour on his release. The offender, it was submitted, could then take up the opportunity available to him for residential rehabilitation under the watchful eye of the SAB. There is some real strength to this submission considering the factors that have attended to the offender’s persistent engagement in criminal conduct while in the community. In particular a lengthy period of parole supervision recognises his age and addresses the concern that the significant period of time he has now spent in a custodial environment will impact his ability to function outside of that custodial environment. A substantial period of strict, consistent parole supervision is in the interest of both the offender and the public. The prosecution did not challenge the imposition of a non-parole period that recognises the significance of his age, the time already spent in custody and the need to promote his rehabilitation. Bearing in mind the approach that a sentencing court must take when setting a non-parole period (see Taylor v The Queen [2014] ACTCA 9 at [19] and Cole v The Queen [2019] ACTCA 3) and the factors I have identified as significant in this matter including the prominence of rehabilitation, I consider that a non-parole period of around 50 percent is appropriate.
73․The starting point for the drive motor vehicle without consent offence is 12 months reduced to 10 months for his plea of guilty.
74․The starting point for the aggravated dangerous driving offence is 20 months reduced to 15 months for his guilty plea of guilt.
75․There were no submissions made by either party about the driver’s licence disqualification that is automatic upon conviction for the aggravated dangerous driving offence. In those circumstances I have determined not to make any order or direction pursuant to s 69 of the RTGA about that disqualification being concurrent with any disqualification already in effect.
Orders
76․The orders I make are:
(1)The ICO imposed on CC2021/10453 for the offence of drive at police officer commencing on 13 September 2023 and expiring on 12 September 2024 is cancelled.
(2)I direct that the remainder of the sentence subject of that ICO (CC2021/10453 as above) be served in full-time detention starting on 20 September 2023 and ending on 12 September 2024.
(3)For the offence of aggravated dangerous driving (CAN3844/23) the offender is convicted and sentenced to 15 months imprisonment to start on 12 August 2024 and to end on 11 November 2025.
(4)For the offence of driving a motor vehicle without consent (CAN465/23) the offender is convicted and sentenced to 10 months imprisonment to start on 12 April 2025 and to end on 11 February 2026.
(5)The non-parole period is to begin on 14 July 2022 and end on 10 October 2023.
(6)For the offence of trespass (CAN466/23) the offender is convicted and fined $700 with no time to pay.
77․The effect of the orders for the offence of aggravated dangerous driving and the offence of driving a motor vehicle without consent, is a total period of imprisonment of 18 months starting on 12 August 2024. The total overall period arising from the imposition of the remaining sentence under the ICO and the periods of imprisonment for the fresh offending is 2 years, 5 months and 23 days.
78․I note that the offender’s driver’s licence is automatically disqualified for 12 months pursuant to s 63 of the RTGA.
| I certify that the preceding [78] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor. Associate: E Keough Date: 22/09/2023 |
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