Director of Public Prosecutions v Greentree (No 3)
[2024] ACTSC 344
•1 November 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Greentree (No 3) |
Citation: | [2024] ACTSC 344 |
Hearing Date: | 19 September 2024 |
Decision Date: | 1 November 2024 |
Before: | Christensen AJ |
Decision: | See [101] |
Catchwords: | CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – treatment order previously cancelled pursuant to s 80ZE(1)(d) – imposition or resentence – burglary and theft offences – threat to kill – driving offences – where significant non-compliance with treatment order – consequence of change in maximum penalty – imposition of suspended sentence of imprisonment – further offences committed during and after treatment order – assaulting officer – resisting arrest – attempt to escape custody by fleeing courtroom – possess offensive weapon with intent – syringe – driving offences – serious recidivist offender – community protection paramount consideration – limited prospects of rehabilitation at this time – intensive correction order not appropriate – imprisonment imposed with nonparole period |
Legislation Cited: | Crimes Act 1900 (ACT) ss 26A, 160, 211, 381 Criminal Code 2002 (ACT) ss 44, 315, 318, 361 Legislation Act 2001 (ACT) s 84A Road Transport (Driver Licensing) Act 1999 (ACT) s 32 Road Transport (Safety and Traffic Management) Act 1999 (ACT) s 5C |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 DPP v Allred (No 2) [2024] ACTSC 243 DPP v Gorman (Magistrates Court of the Australian Capital Territory, Special Magistrate Christensen, 27 August 2024) DPP v Greentree (No 1) (Supreme Court of the Australian Capital Territory, Refshauge AJ, 7 March 2023) DPP v Hammond (No 2) [2024] ACTSC 177 DPP v O’Keefe [2024] ACTSC 210 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Hudson v The Queen [2020] ACTCA 46 Mill v The Queen (1988) 166 CLR 59 R v Rowlands (No 2) [2024] ACTSC 143 The Queen v Perry (a pseudonym) [2020] ACTCA 12 |
Parties: | Director of Public Prosecutions Jacob Daniel Greentree ( Offender) |
Representation: | Counsel H Robinson ( DPP) S Baker‑Goldsmith ( Offender) |
| Solicitors ACT Director of Public Prosecutions Peter Agoth & Associates ( Offender) | |
File Numbers: | SCC 242, 243, 264, 265 of 2022 SCC 251 and 252 of 2023 SCC 136, 137, 202 and 203 of 2024 |
CHRISTENSEN AJ:
Introduction
1․Jacob Greentree comes before the Court for finalisation of a review proceeding arising from the cancellation of a drug and alcohol treatment order (treatment order), and for sentencing for further offences committed during and after the treatment order. It is accepted on behalf of Mr Greentree that imposition of the custodial term from the treatment order sentences is likely. It is also accepted that terms of imprisonment are the only appropriate sentencing orders for the offences the subject of sentence where imprisonment is an available penalty.
2․In contention are the periods of imprisonment that are to be served and how the sentence is to be served. Mr Greentree seeks an intensive correction order (ICO). On his behalf, it was submitted that he shows “green shoots” indicative of potential for rehabilitation. As will become apparent, I do not accept this submission and am of the view that community protection, by way of continued detention in custody, is the only appropriate sentencing outcome.
3․It is convenient to determine firstly the outcome of the review proceeding from the treatment order cancellation, requiring a determination as to whether to resentence Mr Greentree or to impose the original sentences. Thereafter, each distinct series of offending will be considered, followed by consideration of the sentencing factors and principles that inform the sentencing exercise as a whole.
Treatment order review
4․On 7 March 2023, Mr Greentree was sentenced for nine offences: DPP v Greentree (Supreme Court of the Australian Capital Territory, Refshauge AJ, 7 March 2023) (DPP v Greentree (No 1)). The sentences imposed were as follows:
Offence
Offence date
Sentence imposed
Burglary
CAN 2022/6364
11 June 2022
14 months imprisonment
Minor Theft
CAN 2022/6363
11 June 2022
1 month imprisonment
Aggravated dangerous driving
CAN 2022/6010
20 June 2022
14 months imprisonment
Dishonestly driving a vehicle without consent
CAN 2022/6013
20 June 2022
12 months imprisonment
Making a demand with a threat to kill
CAN 2022/6017
20 June 2022
30 months imprisonment
Unlicensed driving
CAN 2022/6015
20 June 2022
Convicted and fined $300, with no time to pay
Good behaviour order for 6 months (7 May 2023 to 6 September 2023)
Possess drug of dependence
CAN 2022/6018
20 June 2022
2 months imprisonment
Driving under influence of drug
CAN 2022/6019
20 June 2022
Convicted and fined $500, with no time to pay
Good behaviour order for 8 months (7 September 2023 to 6 May 2024)
Damaging property not exceeding $5,000
CAN 2022/9502
20 June 2022
4 months imprisonment
5․The total effective sentence was one of three years and 11 months imprisonment, commencing on 11 July 2022 and ending on 10 June 2026. The term of imprisonment was suspended for the purposes of a treatment order. This was for a period of three years, three months, and four days, from 7 March 2023 until 10 June 2026. The treatment and supervision part of the order was for 18 months, from 7 March 2023 until 6 September 2024, with the remainder of the suspended portion of imprisonment to be served by way of a good behaviour order.
6․At the time that the treatment order was imposed, Refshauge AJ told Mr Greentree, “[t]his will be hard. This is no get out of jail free card. It is difficult”. And further, when warning Mr Greentree as to the consequences of a breach of the order his Honour said that “if it’s serious, then the program can be cancelled, and you can be sent back to spend all the rest of the three years plus in prison. So the stakes are pretty high”: DPP v Greentree (No 1) at 22.
7․Mr Greentree’s compliance on the treatment order has been described as “mixed”: DPP v Greentree (No 2) (Supreme Court of the Australian Capital Territory, Refshauge AJ, 7 November 2023) (DPP v Greentree (No 2)) at 3. He was initially compliant with the requirements of the order, and engaged with a residential drug rehabilitation program. However, by mid April 2023, he had been discharged from that program for negative behaviours. His order was provisionally cancelled on 17 April 2023 pending identification of an alternative rehabilitation program.
8․A program was identified, and Mr Greentree was released from custody on 26 April 2023 to participate in a further residential rehabilitation program. While there was some progress that was described as satisfactory, his negative behaviours continued while in the second program. On 15 May 2023 he was discharged. Mr Greentree did not return to the court as required and on 16 May 2023 a warrant was issued for his arrest.
9․Mr Greentree’s non-compliance with the treatment order extended to re-offending. This occurred on 28 May 2023 (series one offending), less than three months into the order. He was remanded in custody from that date. The treatment order was provisionally cancelled again on 30 May 2023.
10․On 7 November 2023 the treatment order was cancelled. The cancellation was sought pursuant to s 80ZE of the Crimes (Sentencing) Act2005 (ACT) (Sentencing Act), that is, a cancellation due to unsatisfactory circumstances. Breaches of the order were found to have occurred, being “failing to attend for urinalysis, showing some anger issues, breaching the rules prohibiting relationships between participants, failing to return to the court on direction or to ACT Corrective Services on discharge and committing further offences”: see DPP v Greentree (No 2) at 7.
11․Nonetheless, the basis upon which the order was cancelled was pursuant to s 80ZE(1)(d) of the Sentencing Act, being that the continuation of the treatment and supervision part of the order was not likely to achieve the objects of the order. This was because there were no suitable rehabilitation programs available for Mr Greentree.
12․In the cancellation decision, Refshauge AJ accepted a prosecution submission that Mr Greentree’s behaviour on the treatment order was a continuation of the pattern of behaviour that had been noted in the drug and alcohol assessment of ACT Corrective Services dated 13 December 2022. In this assessment, Mr Greentree was found by Corrective Services to be unsuitable for a treatment order due to his history of unsatisfactory compliance with previous court orders: DPP v Greentree (No 2) at 6.
13․Immediately following cancellation, Mr Greentree was granted bail to give him an opportunity to demonstrate his capability to rehabilitate prior to finalisation of the review proceeding: DPP v Greentree (No 2) at 9 – 34. The conditions of that bail included that he reside at his sister’s house, and he engage in a rehabilitation program.
14․Mr Greentree initially complied with the requirements of his bail. However, on 8 December 2023, he did not appear at court for a scheduled bail review. A warrant was issued for his arrest.
15․On 28 December 2023, Mr Greentree committed further offences (series two offending). He was arrested on 2 January 2024 and appeared before the Supreme Court on 3 January 2024. During the court appearance, Mr Greentree attempted to escape lawful custody (series three offending). He was returned to custody. The finalisation of the review has been delayed while the charge for the series three offending has progressed through the courts.
Determination on review
16․While at the cancellation proceeding Mr Greentree’s extent of compliance was described as being “mixed”, I would characterise it less positively. It appears to me that there was barely minimum compliance with the expectations of the treatment order, and serious examples of non-compliance, including re-offending. With such an extent of
non-compliance, there would need to be compelling circumstances to warrant
re-sentence: s 80ZE(2)(b) Sentencing Act. No such circumstances arise.17․This includes that I do not consider the change in penalties that has occurred with respect to two of the original sentences (a reduction in the applicable maximum penalty for possessing a drug of dependence (CAN 2022/6018) and an increase in the maximum penalty for driving while under the influence of a drug (CAN 2022/6019)) amounts to a circumstance warranting re-sentence for these offences. Neither party made submissions as to the effect of this legislative change. It appears to me that, given what s 84A(3) of the Legislation Act 2001 (ACT) (Legislation Act) provides,[1] this is not a circumstance of relevance for the purposes of s 80ZE(2)(b) of the Sentencing Act. It is also not of consequence in an outcome of imposition given the change does not “affect any penalty imposed before the law commences”: s 84A(3) Legislation Act.
[1] 84A Creation of offences and changes in penalties
(1)If a law makes an act or omission an offence, the act or omission is only an offence if done or not done after the law commences.
(2)If a law increases the maximum or minimum penalty, or the penalty, for an offence, the increase applies only to an offence committed after the law commences.
(3)If a law reduces the maximum or minimum penalty, or the penalty, for an offence, the reduction applies to an offence committed before or after the law commences, but does not affect any penalty imposed before the law commences.
(4)In this section:
law means an Act or subordinate law.
Note A reference to an Act or statutory instrument includes a reference to a provision of the Act or instrument (see s 7 and s 8).
(5) This section is a determinative provision
18․It is plain that the only appropriate order in finalising the review proceeding is one of imposition of the sentences of imprisonment that were suspended under the custodial part of the treatment order: s 80ZE(2)(a) Sentencing Act. A different outcome was, appropriately, not pressed on behalf of Mr Greentree.
19․Accordingly, the starting point in the overall sentencing exercise is that a total period of three years, three months and four days imprisonment is to be imposed.
20․Section 80ZE(3) of the Sentencing Act then provides that:
If the court orders the imposition of a sentence of imprisonment under this section, the court –
(a)must order whether the offender is to serve all or part of the sentence by full-time detention at a correctional centre; and
(b)may reduce the sentence by any period served in custody under the treatment and supervision part of the treatment order, taking into account the extent to which the offender complied with that part of the order.
21․Mr Greentree was in custody during the treatment and supervision part of the order for two periods. The first period was for the first provisional cancellation, a period of nine days, from 17 April 2023 to 26 April 2023. The second period was a period of 162 days, from 30 May 2023 to 7 November 2023.
22․This second period in custody during the treatment order was both a remand in custody for the series one offending, and reflective of the provisional cancellation of the order. Having regard to the reason for this remand, I do not consider it appropriate to strictly reduce the imposition sentence for this period in custody. Rather, this period of 162 days will be taken into account as pre-sentence custody as part of the overall sentencing exercise: s 63 Sentencing Act.
23․As to the first period in custody during the treatment order, the period of nine days, I am not persuaded that the Court should reduce the imposition sentence by this exact period given the extent of non-compliance with the treatment order. This period in custody reflected provisional cancellation arising from the imposition of sanction points, a consequence of non-compliance during the treatment order. Having said that, in the sentencing exercise as a whole, it is appropriate to have regard to the entire period that Mr Greentree has spent in custody (see below at [76]) and this additional period of nine days in custody will be taken into account in that way.
24․It is also relevant to observe that, in order to give effect to the imposition of the sentence of imprisonment that was suspended under the custodial part of the treatment order, it is necessary to order the imposition of the entire original sentence, and apply the period of back-dating as ordered in the original sentencing proceeding. This ensures that the imposition reflects the periods and structure as it was originally ordered and imposes now on Mr Greentree the “custodial part” as s 80ZE(2)(a) of the Sentencing Act requires. Such an approach is consistent with the manner in which this Court has previously ordered imposition (see, eg, DPP v Allred (No 2) [2024] ACTSC 243; DPP v Hammond (No 2) [2024] ACTSC 177).
The original offending
25․Before moving from the review, it is relevant to the overall sentencing exercise to observe the nature and circumstances of the offending the subject of the treatment order.
26․The first offending occurred on 11 June 2022. Mr Greentree entered an apartment complex and searched multiple vehicles. He smashed a car window and stole a set of keys.
27․The second series of offending occurred on 20 June 2022. Mr Greentree was driving a stolen motor vehicle. He was pursued by police, failed to stop, and attempted to evade police. In doing so, his conduct included driving on the incorrect side of the road and driving on a footpath before ending up crashing into the fence of a dog park. The objective seriousness of the driving offence was described as involving “very dangerous driving through stop signs without stopping, driving on footpath and other areas alongside but not on the road. It was not a short distance but not a very lengthy one either, but it took about 14 minutes in all”: DPP v Greentree (No 1) at 8.
28․Mr Greentree got out of the vehicle and ran into a nearby golf club.
29․He approached a golfer and grabbed her around the neck in a headlock. He produced a knife which he held at her neck. Police produced their tasers and Mr Greentree repeatedly said, “no one move or I’ll kill her”. After multiple directions from police to let the victim go and drop the knife, Mr Greentree complied. He laid down on the ground and was arrested. He was found to have in his possession 0.58 grams of methamphetamine.
30․At the time of the driving, Mr Greentree was unlicensed, not having ever been licensed to drive in the ACT.
31․Further, at the time of these offences, Mr Greentree was subject to sentences of suspended imprisonment imposed in Western Australia on 14 April 2022. Suspended terms of imprisonment had been imposed some three months prior to the offending that was subsequently the subject of the treatment order sentence.
Sentence offences
Series one offending – 28 May 2023
32․In the evening of 28 May 2023, a community member observed Mr Greentree acting suspiciously in Florey and police were called. Police attended and found Mr Greentree hiding in a garden bed.
33․He identified himself to police as “Jack Barton” and said that he lived across the street and thought a man was chasing him. He remained in the custody of police while they spoke to witnesses and obtained closed circuit television (CCTV) footage. Police ascertained that Mr Greentree had been walking around the backyard of a nearby unit and looking into windows.
34․Police attempted to arrest Mr Greentree, and he suddenly swung his left arm and struck a police constable in the chest, causing her to stumble back and drop her torch. Mr Greentree ran up the driveway but was stopped and restrained by a community member and a police officer. He was arrested and handcuffed.
35․Mr Greentree then said, “my name’s not Jack” and gave his correct name. Police asked him if it was necessary to run from them, and he said “yes, it was actually”. They asked him where he was residing and he said “nowhere, I have been on the run for two months”.
36․Mr Greentree’s black puffer jacket and satchel bag were found in the front garden bed of one of the residences. Inside the satchel were a pair of silver pliers, a Phillips head screwdriver, two small razor blades, and a pair of synthetic black gloves.
37․This conduct gives rise to the following offences the subject of sentence for this series:
(a)Assault frontline community service provider contrary to s 26A of the Crimes Act 1900 (ACT) (Crimes Act), carrying a maximum penalty of two years imprisonment (CAN 2023/5438).
(b)Possess article with intent to use in course of burglary contrary to s 315(1) of the Criminal Code 2002 (ACT) (Criminal Code), carrying a maximum penalty of three years imprisonment, a fine of 300 penalty units, or both (CAN 2023/5439).
(c)Provide false name to police contrary to s 211(2)(e) of the Crimes Act, carrying a maximum penalty of $500 (CAN 2023/5444).
(d)Resist territory public official contrary to s 361(1) of the Criminal Code, carrying a maximum penalty of two years imprisonment, 200 penalty units, or both (CAN 2023/9589).
38․Mr Greentree originally pleaded not guilty to these charges in the Magistrates Court. A brief was prepared, and the matter listed for hearing on 9 October 2023. On 5 October 2023, at the fourth mention of the matter and following negotiations, he pleaded guilty. The hearing was vacated, and the charges committed to the Supreme Court for sentence. A reduction in the order of 15 per cent is appropriate for the offences where imprisonment is an available penalty, having regard to the limited, albeit still valuable, utilitarian value of the pleas.
39․As to the appropriate terms of imprisonment, it being plain that no other penalty is appropriate, it is relevant to observe that Mr Greentree is not to be sentenced for attempting to enter any of the residences. He is to be sentenced for having items with an intention to use them in the course of a burglary. He had multiple implements for such a purpose, as well as an item to assist with avoiding detection. This is a serious example of this offence.
40․Similarly, the offending involving the assault on the police officer is serious. While only one strike was inflicted, and it is not certain that it was a deliberate rather than reckless act, it was an assault that clearly involved a level of force given the physical response of the officer. It was to an area of the body, given the form of assault, that was capable of causing serious harm. It likely did cause a level of physical discomfort, and inevitably did cause emotional distress. Police officers are entitled to go about their roles without violent responses from community members.
41․The offence of providing a false name, while initially indicative of a disrespect and defiance of law enforcement, was short-lived and soon after retracted. The circumstances in which it occurred suggest a low level of moral culpability, but offences of this form inherently require sentences of deterrence from offending of this type. It is offending that must make the difficult job of a police officer only harder.
42․At the time of this offending, Mr Greentree was subject to the treatment order, albeit he was not complying with it, and he was subject to a warrant for his non-attendance at court. This is an aggravating factor on sentence: R v Rowlands (No 2); DPP v Rowlands [2024] ACTSC 143 at [77].
43․Further to this is that Mr Greentree was subject to a good behaviour order that was imposed at the time of the original sentence (CAN 2022/6015). He was only some two months into that order. This will be taken into account as a further aggravating factor on sentence and the penalty for the breach will reflect this. Similarly, the distinct, but related (given their proximity to each other) circumstances of the offending informs the application of the totality principle for this series.
Series two offending – 28 December 2023
44․After the treatment order was cancelled and Mr Greentree was on bail pending finalisation of the review proceedings, he committed the next series of offences.
45․The offences and maximum penalties that apply are:
(a)Drive motor vehicle without consent, contrary to s 318(2) of the Criminal Code, carrying a maximum penalty of five years imprisonment, a fine of 500 penalty units, or both (CAN 2024/4314).
(b)Drive while disqualified (first offender) contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT), carrying a maximum penalty of 6 months imprisonment, a fine of 50 penalty units, or both (CAN 2024/4883). A minimum period of 12 months disqualification applies.
(c)Fail to stop motor vehicle for police (repeat offender) contrary to s 5C of the Road Transport (Safety and Traffic Management) Act 1999 (ACT), carrying a maximum penalty of three years imprisonment, 300 penalty units, or both (CAN 2024/4315). A minimum period of 12 months disqualification applies.
46․On 27 December 2023, a Yamaha Virago motorcycle was stolen. On 28 December 2023 at about 7:41am, Mr Greentree rode the motorcycle into the Mawson shops and parked. He had a female passenger on the motorcycle. He was approached by a member of the public. Mr Greentree said words to the effect of “don’t worry, it’s stolen”. Police were contacted.
47․At about 8:18am, police saw Mr Greentree on the motorcycle stopped at an intersection in Mawson. His clothing, and that of his passenger, included motorbike safety gear.
48․Police activated their lights and sirens and intercepted the motorcycle from the front, directing it to stop. Mr Greentree did not stop. He accelerated southwards at speed, entering a nearby greenbelt. Police followed but ceased the pursuit because of the motorcycle’s speed on the footpath. They deactivated their lights and sirens. The motorcycle continued at speed through an underpass towards the Farrer shops.
49․The agreed facts do not specify whether the motorcycle was recovered, and, if so, any damage caused to it. A victim impact statement from the owner of the motorcycle does though. This statement expresses the impact on the owner of the motorcycle, and is a valuable reminder of the significant effect that offending of this type can have on victims. The victim writes:
I am writing to express the profound impact that the theft of my Yamaha Virago motorbike … has had on my life.
The motorbike in question was not just a means of transportation for me — it held significant personal value. It was a gift from my father, a symbol of his love and support. I invested a great deal of time, effort, and financial resources into restoring it … Each hour spent working on the bike and every dollar invested was driven by my passion and the joy of completing a meaningful project. The sense of achievement and fulfillment I felt upon finally getting the bike in running order was immense.
The theft of my motorbike has not only deprived me of a cherished possession but has also placed a substantial financial burden on me …
The emotional distress caused by the loss of a gift so dear to me, combined with the ongoing financial strain, has been considerable. The motorbike was more than just a vehicle; it was a connection to my father and a source of personal pride. The sense of violation and loss I have experienced cannot be easily quantified, but it has deeply affected my well-being and my financial stability.
50․While Mr Greentree is not to be sentenced for stealing the motorbike, his driving of it is barely of less seriousness. Vehicles would not be stolen without people being willing to drive a stolen vehicle. Mr Greentree’s driving of this vehicle was plainly brazen, having regard to his comment to a community member, and indicative of a complete disregard to the owner. The owner of the motorcycle has been impacted financially, and significantly in terms of emotional distress and, I infer, grief. Mr Greentree’s driving of this motorbike warrants denunciation and accountability for his conduct, and reflection of the sentencing purpose of recognising the harm done to the victim.
51․It also warrants a deterrent sentence. Mr Greentree has a history of similar offences. He seemingly has an attitude of entitlement when it comes to other community members’ vehicles, with little insight into the harm he causes by the use of stolen vehicles. Further, he was again on conditional liberty, being both on bail and on a good behaviour order (CAN 2022/6019) at the time of this offence, amounting to an aggravating factor on sentence.
52․Mr Greentree’s driving on this occasion was fortunately not as protracted or dangerous as the driving offending the subject of his original sentence proceeding, and it is not the subject of a charge. It involved, though, a blatant disregard for a police direction to stop. In failing to stop, he put not only himself, the police, and other community members at risk, but also his passenger. It demonstrates again a defiance of police directions, and a disregard for the safety of community members. That the offender is a repeat offender increases the applicable maximum penalty.
53․This disregard for safety is also demonstrated by the driving occurring while he was disqualified. The disqualification arose from the original offending involving unlicensed driving. Mr Greentree has not ever taken steps to be lawfully licensed and trained to drive in any jurisdiction. When imposing the disqualification periods arising from the earlier offending, Mr Greentree was told “[y]our driver licence has been disqualified. You cannot drive. It’s an offence and it will land you back in jail”: DPP v Greentree (No 1) at 24-25.
54․Plainly, condign sentences of imprisonment are the only appropriate penalties. The prosecution also sought on behalf of the victim reparation for the victim’s loss and expenses: s 19 Sentencing Act. The section is silent as to the matters to be considered in the determination of whether such an order will be made. It seems to me to be a futile order, and one only likely to result in disappointment for the victim, given Mr Greentree’s incapacity to compensate for the financial costs from the offending. Accordingly, I make no reparation order.
55․Mr Greentree pleaded guilty to these offences in the Magistrates Court. This was after an initial plea of not guilty and the preparation of a brief of evidence. It does not appear that a hearing date was listed, affording more utilitarian value than the series one pleas of guilty. A reduction in the order of 20 per cent is appropriate. Further, the totality principle is of application, having regard to the inextricably related nature of the offending.
Series three offending – 3 January 2024
56․The final series of offending occurred after Mr Greentree was apprehended on the warrant that had been issued after his failure to attend court during his period of bail.
57․He was brought to court on the morning of 3 January 2024. He was seated in the dock in Courtroom 2 of the Supreme Court. An ACT Corrective Services officer was seated on either side of him.
58․He was informed by the Court that he would be remanded in custody. The Corrective Services officers stood up and started to escort him from the courtroom. Rather than going with them, Mr Greentree jumped over the dock and ran towards the public exit. He made it through the first door but was intercepted by more Corrective Services officers, who held the second door from the courtroom shut.
59․Mr Greentree tried to open the second door. By this stage, there were six Corrective Services officers trying to restrain him. During the struggle, one of the officers yelled “weapon”. Mr Greentree raised his right hand. He was holding a small white syringe. He swung the syringe in a downward motion towards the officers. One of the Corrective Service officers later noticed he had sustained two scratches on his left forearm, each about three centimetres long. They are visible injuries shown in photographs that were tendered. The officer attended at the hospital to have the scratches tended to in case they were inflicted by the syringe.
60․Mr Greentree managed to push his way out of the second door. Shortly past this door, Mr Greentree was taken to the ground, handcuffed and escorted to the court cells. The escape was not achieved due to the rapid response of Corrective Services officers.
61․The offences and maximum penalties that apply to this conduct are:
(a)Assault frontline community service provider, contrary to s 26A of the Crimes Act, carrying a maximum penalty of two years imprisonment (CAN2024/2166).
(b)Possess offensive weapon with intent, contrary to s 381(1) of the Crimes Act, carrying a maximum penalty of one year imprisonment, a fine of $2,000, or both (CAN 2024/2168).
(c)Attempt to escape from lawful custody, contrary to s 160 of the Crimes Act by virtue of s 44 of the Criminal Code, carrying a maximum penalty of five years imprisonment, 100 penalty units, or both (CAN 2024/2167).
62․The offending conduct is captured on CCTV footage that shows the nature and circumstances of the offending better than any description in words can do. I have viewed this footage. It was a persistent and determined attempt, even if a spontaneous response to the Court’s indication that there would be a return to custody. I accept the submission made on behalf of Mr Greentree that it was always going to be a very futile attempt. It was an unsophisticated example of this form of offence.
63․However, the extent to which it can be regarded as spontaneous has to take into account the possession and production of a syringe. While there may very well be other reasons why Mr Greentree had possession of the syringe in a circumstance where he anticipated he may be returned to custody, the decision and ability to rapidly produce it and use it during the attempt to escape detracts from the submission made on his behalf that this was entirely spontaneous offending. This is particularly so given the elements of the possess offensive weapon with intent charge that Mr Greentree pleaded guilty to, an offence contrary to s 381 of the Crimes Act, which provides:
(1)A person who has on his or her person an offensive weapon or disabling substance, in circumstances indicating intent to use the weapon or substance to commit an offence involving actual or threatened violence, is guilty of an offence …
64․By his plea of guilty to this charge, Mr Greentree has accepted his possession of the syringe was in a circumstance indicating intent to use it to commit an offence involving actual or threatened violence. The possession, and use, of the syringe during the attempted escape heightens the seriousness of the offence, elevating it to one that was capable of causing real harm to the court officers involved.
65․Indeed, the syringe, or at least Mr Greentree physically struggling with the officers during his escape attempt, did cause physical harm to one officer. No doubt all of the Corrective Service officers involved, as well as the court staff and court security, were alarmed and distressed by Mr Greentree’s conduct.
66․The offending demonstrates, once again, a defiance by Mr Greentree of court orders, including both by the offence itself and that it was an offence committed while subject to a good behaviour order (CAN 2022/6019). Further, on this occasion the offending was a blatant disrespect of the Court, and the trust placed in Mr Greentree to comply with court orders. It was also an example of defiance and disrespect towards Corrective Services officers and the court security. These officers were placed at risk, both physically and psychologically, in their workplace. They play a critical role in ensuring the safe operations of the courts, and more broadly the justice system, and, as with the police, are entitled to go about their duties without risks to their safety.
67․The offending requires that stern sentences of imprisonment reflecting deterrence, accountability and denunciation of the conduct be imposed. The structure in which these sentences are to be imposed is to reflect that it was offending committed during one incident, and that the features of seriousness of the assault and the possession of the syringe are separately charged.
68․In considering the structure of the sentence, s 72 of the Sentencing Act is also relevant, which provides:
(1)This section applies if the primary sentence is imposed on the offender for any of the follow offences:
(a)an offence committed while the offender was in lawful custody;
…
(c)an offence involving an escape from lawful custody.
69․No submission was made that the offence, being one of attempt, removes s 72 of the Sentencing Act from application to the offending here. Presumably, that is because it is accepted that it is an offence committed while in lawful custody, or otherwise, that an attempt amounts to “an offence involving” an escape from lawful custody. It was submitted though that the Court may consider that special circumstances apply. Subsections (2)–(4) provide:
(2)In the absence of a direction under subsection (3), the primary sentence must be served consecutively with the existing sentence of imprisonment.
(3)The court may direct that the primary sentence be served concurrently (or partly concurrently and partly consecutively) with the existing sentence.
(4)Unless the court considers that special circumstances apply, the court must not give a direction under subsection (3) if the primary sentence is an offence that involves causing harm or threatening to cause harm, to a corrections officer.
70․It was not in dispute that the offence is one that involved causing harm to a corrections officer. The special circumstance submitted to apply is the likelihood of a “crushing” sentence if served consecutively. That is, that consideration of the totality principle can amount to a special circumstance.
71․The prosecution submitted that there is an absence of special circumstances, with reliance on The Queen v Perry (a pseudonym) [2020] ACTCA 12 (The Queen v Perry (a pseudonym)) at [126]–[132]. However, the Court of Appeal in The Queen v Perry (a pseudonym) stated per Rangiah J at [132]) that:
The relevant question under s 72(4) is not merely whether special circumstances apply, but whether the court considers that special circumstances apply that would make it unduly harsh for the sentences to be served consecutively.
72․Further, the Court of Appeal in Hudson v The Queen [2020] ACTCA 46 said at [128]–[129] that:
It must be recognised that s 72(4) requires that sentences for offences involving harm or threats to corrections officers by a person who is in lawful custody will ordinarily be wholly consecutive, and intends that there should ordinarily be harsher penalties than might be imposed for similar harm or threats in other circumstances. However, the provision does not suggest that totality is to be completely discarded. …
The harshness of the aggregate sentence considered by reference to the totality principle may amount to special circumstances for the purposes of s 72(4).
73․I consider that, in this matter, there is a likelihood of a “crushing” sentence if a consecutive order is made. Mr Greentree is to be sentenced for multiple series of offences, in addition to the imposition of a lengthy term of imprisonment. If the sentences were required to be served consecutively with the existing sentences, the result would not be a “just and appropriate” one: Mill v The Queen (1988) 166 CLR 59 at 63. The overall sentencing exercise in this matter involves a careful application of the totality principle to ensure all sentencing purposes are appropriately reflected.
74․The prosecution additionally submitted that the Court would consider that the case was an “overwhelmingly strong” one such that a significant reduction was not
appropriate: s 35(4) Sentencing Act. It being an overwhelming strong case was conceded on behalf of Mr Greentree. Nonetheless, it was recognised by the prosecution that even in a circumstance of an overwhelmingly strong case, there remains an obvious utilitarian value in early pleas of guilty: DPP v O’Keefe [2024] ACTSC 210 at [111].75․The pleas of guilty here were indicated at the first mention of the matter in the Magistrates Court. The pleas were confirmed less than one month later, and the matter was committed for sentence to the Supreme Court. Despite it being an overwhelmingly strong case, having regard to the CCTV footage available and the number of witnesses, the circumstances of the plea of guilty were significant in their utilitarian value. The pleas enabled the witnesses to be assured they would not be required for evidence, and it enabled an efficient progression of the matter through the court process. I assess the appropriate reduction to be in the order of 20 per cent.
Time in custody
76․The presentence custody periods that apply for the purposes of s 63 of the Sentencing Act are:
(a) 240 days (12 July 2022 to 7 March 2023) referable to pre-sentence custody prior to the original sentence proceeding;
(b) 164 days (28 May 2023 to 7 November 2023) as considered above at [9], [21] and [22]; and
(c) 305 days (2 January 2024 to 1 November 2024) for the remand in custody following cancellation.
77․As observed above at [23], the period of nine days (17 April 2023 to 26 April 2023) does not form part of the presentence custody for the reasons explained there. This has been taken into account when considering the overall period that Mr Greentree has spent in custody.
Subjective circumstances
78․Mr Greentree’s subjective circumstances are set out in detail in DPP v Greentree (No 1), and otherwise in the numerous reports that have been prepared for this, and previous, sentence proceedings. I have considered these closely and summarise them for current purposes.
79․Mr Greentree is now aged 28 years. He is a Wiradjuri man, with little connection to his culture. He grew up in the Canberra region. He experienced an adolescence that lacked parental guidance and led to association with negative peers and a descent into substance dependency. This led to criminal behaviour to support this dependency, homelessness, and a disconnection from his family in his early adult years. In more recent years, he has worked on rebuilding those relationships. He is a father to a child who resides interstate, and he is now single.
80․Mr Greentree has achieved some qualifications during the periods he has spent in custody. This includes in hospitality, fitness, hairdressing and in the building industry. However, given the extended periods of time he has spent in custody, he has not had many opportunities to apply these qualifications to employment. While in the Alexander Maconochie Centre, he has engaged with employment and his participation is described as “satisfactory”.
81․During his most recent period in custody, he engaged in therapeutic supports and he is described as having a “notable” motivation to participate and reach self-identified goals, along with having consistent positive engagement. He is described as expressing empathy towards the victims of this offending, as well having awareness of the impacts of his behaviour on his own family.
82․Mr Greentree has commenced a pharmacotherapy program which he considers has assisted him to better manage his addiction. In addition to the material as to his subjective circumstances describing a descent into drug dependency from an early age — at the age of 9 years with tobacco, 10 years with alcohol, and methamphetamine at age 12 — Mr Greentree has had diagnoses of attention deficit hyperactivity disorder, depression, and anxiety.
83․In previous proceedings, it has been found that Mr Greentree suffered from significant childhood disadvantage. The material does not, on my assessment, conclusively establish that the Bugmy principles (Bugmy v The Queen [2013] HCA 37; 249 CLR 571) are enlivened in the sense that Mr Greentree experienced disadvantage and deprivation in his particularly early formative years.
84․Nonetheless, he plainly experienced this from his later childhood, and his early descent into drug dependency is unlikely to have occurred without early negative experiences that led to this. The prosecution did not contest a conclusion that his moral culpability is to be reduced with reference to Mr Greentree’s childhood circumstances. Additionally, there is a basis to find such a reduction is also warranted with reference to his early exposure to substance abuse which has plainly driven much, if not all, of his subsequent offending.
85․This offending is reflected in his criminal record which was described in DPP v Greentree (No 1) as “depressing”. This was an accurate description. [Redacted]. [Redacted], his offending has largely been in Western Australia. This consists of offences including burglary and dishonesty, and driving offending, including theft of vehicles. In that jurisdiction, he has breached bail and a number of community based orders.
86․At the original sentence proceeding, it was observed that “his prior record is a bad one, and especially concerning at his inability to comply with community based orders and his continued offending despite the punishment meted out to him”: DPP v Greentree (No 1) at 16. It is a criminal history that limits the leniency that can be afforded to Mr Greentree. This is particularly so with respect to the driving offending and theft of vehicles which is, concerningly, a form of offending that has not been deterred by the previous periods of imprisonment.
87․His criminal history demonstrates a concerning attitude of defiance and disobedience of the law, and disrespect to other community members, and to law enforcement. Nonetheless, he is not to be sentenced for his previous behaviour. It is relevant though that the current offences are further examples of an apparent brazen disregard for not only the law and the Court, but for the safety and welfare of others.
88․It was submitted on behalf of Mr Greentree that he was likely not ready for the onerous conditions of a treatment order. So much was observed by his Honour in cancelling the order: DPP v Greentree (No 2) at 8.
89․Similarly, Mr Greentree expresses this in a letter he has provided to the Court. He describes his genuine attempts to comply with the conditions he had in the community and that, while he struggled with them, he “never gave up”. He then experienced difficulties after he was unwell with COVID-19 and had difficulties in obtaining a doctor’s certificate. He became despondent after what he perceived as having barely been given a chance to do what was asked. He found it difficult to manage the basic matters for establishing a life outside of prison.
90․Mr Greentree says that he recognises that he needs help if he is going to turn his life around, quit drugs, and stop doing crime. He says that he knows that he is ready to change and will do everything in his power to do so.
Consideration
91․Mr Greentree is a serious recidivist offender who has had many opportunities provided by the courts in the ACT and other jurisdictions to address his drug dependency and his offending behaviour with a community based order. Those opportunities have come to an end.
92․I have little to no confidence that any further leniency as to how the terms of imprisonment are to be served will not be again defied by further offending and a failure to address his entrenched drug dependency. Community protection is a paramount sentencing consideration.
93․In so concluding, this Court, and certainly the Drug and Alcohol Sentencing List of this Court, is not disregarding that community protection is ultimately best achieved by rehabilitation of an offender: Hogan v Hinch [2011] HCA 4; 243 CLR 506. But, as then‑Chief Justice French observed, this is in circumstances where rehabilitation “can be achieved”: at [32]. While no one is beyond redemption, and the sentence orders of the Drug and Alcohol Sentencing List often do reflect mercy and the promotion of hope, this is in circumstances where there are at least glimmers of prospects of rehabilitation. Unfortunately, Mr Greentree does not at this time engender confidence of any such glimmers, not even faint ones.
94․Far too many promises of intentions to rehabilitate have been made, and not fulfilled. No compelling reason exists to conclude that the promises made, and stated insights gained, will finally be achieved this time. This is not to say that there are people for whom hope of rehabilitation is beyond reach. It is to say that, at this time, the prospects of rehabilitation of Mr Greentree are so remote that giving effect to the sentencing purpose of community protection is only able to be achieved by his continued detention in custody for a not insignificant period.
95․I accept that this approach limits the ability to achieve community protection upon Mr Greentree’s inevitable release from custody. That will ultimately be a matter for the Sentence Administration Board, and for the provision of rehabilitation services and programs while Mr Greentree remains in custody.
96․Mr Greentree had sought that an intensive correction order be imposed, and I have considered an assessment report prepared for that purpose. He was found unsuitable for such an order for reasons including his criminal history and drug dependency. Nonetheless, as will become apparent, the overall term of imprisonment to be imposed precludes an intensive correction order as a possibility: s 14(3) Sentencing Act.
97․The only order appropriate for Mr Greentree is one of parole. Section 64 of the Sentencing Act has been amended such that the sentence for the series three offence is no longer an excluded sentence of imprisonment. That is, there is no impediment to the setting of a nonparole period for the terms of imprisonment to be imposed.
98․I am of the view that, in this matter, it is appropriate to reflect the reduction in moral culpability, and the consequential reduction in weight to general deterrence, denunciation and punishment, in the setting of the nonparole period. This will balance the appropriate recognition of Mr Greentree’s reduced moral culpability, with regard to his childhood experiences and early exposure to substances, while also meeting the increased need for community protection that arises as a result of the factors that reduce his moral culpability. It will enable a lengthier period of supervision in the community, and therefore community protection upon release, than might otherwise have been ordered.
99․As to the terms of imprisonment that are to be imposed, I have had regard to the authorities as to current sentencing practice as provided by the prosecution, to the extent that these can be of assistance. In addition, I have had regard to an unreported decision of the Magistrates Court as to the attempted escape offence given the similar factual circumstances of an escape from a courtroom, albeit in that matter, the escape was successful: DPP v Gorman (Magistrates Court of the Australian Capital Territory, Special Magistrate Christensen, 27 August 2024). The totality principle has also been informative in formulating the sentence, to reflect the distinct offending while avoiding a crushing sentence that risks further institutionalisation of Mr Greentree.
100․The outcome of this review and the sentencing exercise is entirely regrettable for Mr Greentree’s young son, who has plainly been a motivating factor for Mr Greentree in his stated intentions to achieve rehabilitation. But, it is ultimately for Mr Greentree to commit to finally addressing his rehabilitation with the options that are now available to him if he is to be the father that his son deserves.
Orders
101․For those reasons, the following orders are made:
(1)The conviction of Jacob Daniel Greentree of burglary (CAN 2022/6364) be confirmed and the sentence of 14 months imprisonment to commence on 23 November 2022 and end on 22 January 2024 be imposed.
(2)The conviction of Jacob Daniel Greentree of minor theft (CAN 2022/6363) be confirmed and the sentence of 1 month imprisonment to commence on 23 December 2023 and end on 22 January 2024 be imposed.
(3)The conviction of Jacob Daniel Greentree of aggravated dangerous driving (CAN 2022/6010) be confirmed and the sentence of 14 months imprisonment to commence on 23 August 2023 and end on 22 October 2024 be imposed.
(4)The conviction of Jacob Daniel Greentree of dishonestly driving a motor vehicle without consent (CAN 2022/6013) be confirmed and the sentence of 12 months imprisonment to commence 23 April 2024 and end on 22 April 2025 be imposed.
(5)The conviction of Jacob Daniel Greentree of making a demand with a threat to kill (CAN 2022/6017) be confirmed and the sentence of 30 months imprisonment to commence 23 February 2024 and end on 22 August 2026 be imposed.
(6)The conviction of Jacob Daniel Greentree of possessing a drug of dependence (CAN 2022/6018) be confirmed and the sentence of 2 months imprisonment to commence on 23 July 2026 and end on 22 September 2026 be imposed.
(7)The conviction of Jacob Daniel Greentree of damaging property not exceeding $5,000 (CAN 2022/9502) be confirmed and the sentence of 4 months imprisonment to commence on 23 June 2026 and end on 22 October 2026 be imposed.
(8)Jacob Daniel Greentree be convicted of assault frontline community service provider (CAN 2023/5438) and be sentenced to 5 months imprisonment, reduced from 7 months on account of his plea of guilty, to commence 23 August 2026 and end on 22 January 2027.
(9)Jacob Daniel Greentree be convicted of possess article with intent to use in course of burglary (CAN 2023/5439) and be sentenced to 12 months imprisonment, reduced from 14 months on account of his plea of guilty, to commence on 23 August 2026 and end on 22 August 2027.
(10)Jacob Daniel Greentree be convicted of resist territory public official (CAN 2023/9589) and be sentenced to 3 months imprisonment, reduced from 5 months on account of his plea of guilty, to commence on 23 August 2026 and end on 22 November 2026.
(11)Jacob Daniel Greentree be convicted of ride/drive motor vehicle without consent (CAN 2024/4314) and be sentenced to 12 months imprisonment, reduced from 15 months on account of his plea of guilty, to commence on 23 March 2027 and end on 22 March 2028.
(12)Jacob Daniel Greentree be convicted of drive with disqualified (CAN 2024/4883) and be sentenced to 4 months imprisonment, reduced from 5 months on account of his plea of guilty, to commence on 23 May 2027 and end on 22 September 2027. Jacob Daniel Greentree also be disqualified from holding or obtaining a driver licence for 12 months from today, 1 November 2024 until 31 October 2025.
(13)Jacob Daniel Greentree be convicted of fail to stop motor vehicle for police (repeat offender) (CAN 2024/4315) and be sentenced to 12 months imprisonment, reduced from 15 months on account of his plea of guilty, to commence on 23 June 2027 and end on 22 June 2028. Jacob Daniel Greentree also be disqualified from holding or obtaining a driver licence for 12 months from today, 1 November 2024 until 31 October 2025.
(14)Jacob Daniel Greentree be convicted of assault frontline community service provider (CAN 2024/2166) and be sentenced to 6 months imprisonment, reduced from 8 months on account of his plea of guilty, to commence on 23 January 2028 and end on 22 July 2028.
(15)Jacob Daniel Greentree be convicted of possess offensive weapon with intent (CAN 2024/2168) and be sentenced to 6 months imprisonment, reduced from 8 months on account of his plea of guilty, to commence on 23 January 2028 and end on 22 July 2028.
(16)Jacob Daniel Greentree be convicted of attempt to escape from custody (CAN 2024/2167) and be sentenced to 16 months imprisonment, reduced from 20 months on account of his plea of guilty, to commence on 23 January 2028 and end on 22 May 2029.
(17)On the breach of the Good Behaviour Order in CAN 2022/6015, I find the breach proved and take no further action.
(18)On the breach of the Good Behaviour Order in CAN 2022/6019, I find the breach proved and take no further action.
(19)Jacob Daniel Greentree be convicted of provide false name (CAN 2023/5444) and be fined $300 with no time to pay.
(20)It is directed, pursuant to s 72(3) of the Crimes (Sentencing) Act 2005 (ACT), that partially concurrent sentences be imposed.
(21)The total sentence imposed be 6 years and 6 months imprisonment, to commence on 23 November 2022 and end on 22 May 2029.
(22)A nonparole period of four years and 3 months be imposed to commence on 23 November 2022 and end on 22 February 2027.
Addendum
102․Subsequent to the sentence decision, the parties confirmed that charge CAN 2024/4883 (driving while disqualified) was erroneously recorded in the material relied upon at sentence as a repeat offender charge. The particulars of charge CAN 2024/4883 are that the offender was a first offender.
103․Pursuant to s 61 of the Crimes (Sentencing) Act 2005 (ACT), the parties consented to orders being made in chambers as follows:
1.Pursuant to s 61(3) of the Crimes (Sentencing) Act 2005 (ACT), the sentence proceedings are reopened.
2.Pursuant to s 61(3) of the Crimes (Sentencing) Act 2005 (ACT), order 12 of the orders made by Christensen AJ on 1 November 2024 is amended to read as follows:
(12)Jacob Daniel Greentree be convicted of drive with disqualified (CAN 2024/4883) and be sentenced to 4 months imprisonment, reduced from 5 months on account of his plea of guilty, to commence on 23 May 2027 and end on 22 September 2027. Jacob Daniel Greentree also be disqualified from holding or obtaining a driver licence for 12 months from today, 1 November 2024 until 31 October 2025.
3.The sentence of 6 years and 6 months imprisonment imposed by her Honour on 1 November 2024 is confirmed.
104․The published remarks on sentence reflect the correct penalty and orders as rectified.
| I certify that the preceding one hundred and one [104] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen. Associate: Date: 7 July 2024 |
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