Director of Public Prosecutions v Guarini (No 3)

[2023] ACTSC 362

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Guarini (No 3)

Citation: 

[2023] ACTSC 362

Hearing Date: 

30 November 2023

Decision Date: 

1 December 2023

Before:

Berman AJ

Decision: 

(1)   I cancel the Good Behaviour Order made by Magistrate Campbell on 8 March 2022.

(2) In relation to the driving offence (CC2020/14759), pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT) I sentence the offender to two months imprisonment commencing 1 December 2023 and ending 31 January 2024. That sentence is suspended with immediate effect on the condition that the offender enter a Good Behaviour Order for a period of 12 months on the core conditions and the following additional conditions:

(a)   The offender attends such educational, vocational, psychological, psychiatric or other assessments, programs or counselling as directed, particularly in relation to drugs; and

(b)   The offender be subject to probation to be supervised by the Director-General and to obey all reasonable directions of the Director-General for a period of 12 months or such lesser period as deemed appropriate.

(3)   I confirm the offender’s licence disqualification.

(4)   In relation to deception offences (CAN 7824/22 and CAN 7825/22) I impose a Good Behaviour Order for a period of 12 months on the core conditions commencing today and the same additional conditions above.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – dishonestly obtain property by deception – offences committed whilst on conditional liberty – significant criminal history – re-sentence – Good Behaviour Order 

Legislation Cited: 

Crimes (Sentencing) Act 2005 (ACT), s 12

Cases Cited: 

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

Parties: 

Director of Public Prosecutions

Kobi Guarini ( Offender)

Representation: 

Counsel

L Etheredge ( DPP)

J Maher ( Offender)

Solicitors

ACT Director of Public Prosecutions

Fortify Legal ( Offender)

File Number:

SCC 22 of 2023

BERMAN AJ:

Introduction

1․On 23 July 2022, a resident of Hawker in the ACT was heading out for breakfast when he was set upon by three men who robbed him of his wallet, including his debit card.

2․A very short time after that, the offender in this matter Kobi Guarini, used that debit card at some nearby shops.  There were two transactions, the first was the purchase of some beer and cigarettes at a cost of $63.70 and the second was the purchase of some bakery items at a cost of $9.60.

3․The offender was charged with two counts of dishonestly obtaining property by deception, one relating to each transaction.  He pleaded not guilty to those charges but was found guilty by me after a short trial.

4․He now appears for sentence for those two offences.  The maximum penalty for each is 10 years imprisonment or 1000 penalty units or both.

5․It is unusual for this court to sentence offenders for matters of this kind. The explanation is that the offender was also charged with robbery, the allegation being that he was one of the three men involved in the robbery.  I found him not guilty of that charge.

6․As well as sentencing him for the two offences on which I found him guilty, I must also deal with another matter because his conviction of the two dishonesty matters represented a breach of a 12 month Good Behaviour Order (GBO) imposed on 8 March 2022, for an offence of being a driver of a motor vehicle with a prescribed drug in his oral fluid or blood. That GBO was attached to a 2 month suspended sentence of imprisonment.  The maximum penalty for that offence is imprisonment for 3 months and the offender pleaded guilty, so a sentence of imprisonment for 2 months was, in those circumstances, a hefty one.

7․The offender was about 1/3 of the way though his GBO when he committed the dishonesty offences, and his decision to breach the GBO by committing them was clearly an intentional one.  His willingness to breach the GBO in this case is consistent with his attitude to community-based orders in the past.

8․The offender, who is 34 years of age, has a very lengthy criminal history which commenced as a juvenile in 2006.  He has been sentenced to multiple community-based orders and several periods of full-time detention. His past offending has involved many different types of criminal behaviour, driving offences, drug offences, weapons offences, property damage offences, assaults, theft, burglary, and receiving.

9․His response to the community-based orders has been unsatisfactory in the past and breach action has been initiated multiple times. He has demonstrated a continuing attitude of disobedience to the law.

10․The offender was born in the ACT. He is of aboriginal descent but has little connection to cultural activities or practices. What we refer to as the Bugmy factors (see Bugmy v The Queen [2013] HCA 37; 249 CLR 571) are well and truly enlivened in the offender’s case. He has had limited contact with his father, being primarily raised by his mother with whom he has a dysfunctional relationship. He and she would frequently use drugs together, and his mother would regularly leave him in charge of his two younger brothers. His upbringing was marred by domestic violence, neglect, and drug use.

11․He completed year 10 of school whilst in custody and is currently reliant on Centrelink benefits.

12․He has a well-documented history of polysubstance abuse, his primary drug of choice being heroin, but he will use whatever drugs are available and which he can afford. He has made several unsuccessful attempts at rehabilitation over his lifetime. It is highly likely that the offender will continue to commit offences in the future, having not been deterred in the past by custodial sentences, and having not been willing to accept the opportunities that non-custodial orders have offered him.

13․The dishonesty offences could not be described as serious. The total loss of $73.30 was borne by the victim’s bank. There was no planning or sophistication, the offender not even making more than token efforts to disguise himself. They were committed within a short time of each other and are effectively one course of conduct.

14․It is a matter of aggravation that the dishonesty offences were committed whilst the offender was on conditional liberty.

15․Somewhat surprisingly, given his pleas of not guilty at his trial, the offender does not now dispute that he committed the offences for which I must sentence him, blaming his drug use. The community corrections report notes that “to his credit, the offender did not attempt to minimise or justify his actions”.

16․The offender has spent 5 days in custody referable to the dishonesty offences.

17․I have already referred to the offender’s history and poor prospects of rehabilitation.  However, that does not mean that I should simply abandon the offender and refuse him any further assistance to turn his life around. These offences are not of such seriousness that he must serve time in custody, and despite the unlikelihood that the offender will suddenly start accepting the support he has been offered in the past, it remains important that the courts and sentencing authorities keep trying to help him.

18․That is not done merely to benefit the offender.  Doing all that can be done to rehabilitate the offender flows from the ultimate purpose of sentencing, that being to protect the community and its members from harmful criminal behaviour.

19․I will resentence the offender for the driving offence. Ordinarily that would be to a more severe sentence than originally imposed, but given the offender’s plea of guilty to that offence and the maximum penalty, I consider that a sentence of imprisonment for more than 2 months would be excessive.

20․As far as the dishonesty offences are concerned, I am not satisfied that a sentence of imprisonment is necessary.

21․The sentences for the dishonesty offences will be concurrent with each other to reflect the very small amount involved in the charge relating to the bakery matter, and the fact that the two offences were part of the same criminal conduct.

22․Ordinarily, those sentences would not be wholly concurrent with the driving offence because that was completely separate criminality and there should be no suggestion that the offender is going unpunished for them. However, I note that he spent 5 days in custody referable to the dishonesty offences.  As a result, I will impose upon him for those offences a GBO which will run concurrently with his GBO for the driving offence.

Orders

23․I impose the following sentences:

(1)I cancel the Good Behaviour Order made by Magistrate Campbell on 8 March 2022.

(2)In relation to the driving offence (CC2020/14759), pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT) I sentence the offender to two months imprisonment commencing 1 December 2023 and ending 31 January 2024. That sentence is suspended with immediate effect on the condition that the offender enter a Good Behaviour Order for a period of 12 months on the core conditions and the following additional conditions:

(a)The offender attends such educational, vocational, psychological, psychiatric or other assessments, programs or counselling as directed, particularly in relation to drugs; and

(b)The offender be subject to probation to be supervised by the Director-General and to obey all reasonable directions of the Director-General for a period of 12 months or such lesser period as deemed appropriate.

(3)I confirm the offender’s licence disqualification.

(4)In relation to deception offences (CAN 7824/22 and CAN 7825/22) I impose a Good Behaviour Order for a period of 12 months on the core conditions commencing today and the same additional conditions above.

I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Berman.

Associate:

Date: