Director of Public Prosecutions v Lawson

[2023] ACTSC 244

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Lawson

Citation: 

[2023] ACTSC 244

Hearing Date: 

6 September 2023

Decision Date: 

6 September 2023

Before:

Taylor J

Decision: 

1. I am satisfied that the Suspended Sentence Order in relation to charge CC2020/7923 has been breached. I cancel the Good Behaviour Order and resentence the offender pursuant to s 12(3) of the Crimes (Sentencing) Act 2005 (ACT) to a period of imprisonment for five months suspended immediately on the condition that he be of good behaviour for a period of 11 months.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of suspended sentence order (SSO) by serious offending – where offender has made significant progress towards rehabilitation while in the community – where there are compelling reasons for offender to remain in the community – good behaviour order (GBO) cancelled – offender re-sentenced pursuant to s 12(3) of the Crimes (Sentencing) Act 2005 to a sentence suspended immediately upon the condition the offender be of good behaviour

Legislation Cited: 

Crimes (Sentence Administration) Act 2005 (ACT) ss 107(2), 110

Crimes (Sentencing) Act 2005 (ACT), ss 7, 12(3)

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

FirearmsAct 1996 (ACT), ss 43(1)(a)(iii), 249(1)

Prohibited Weapons Act 1996 (ACT), s 5

Road Transport (Vehicle Registration) Act 1999 (ACT), s 20(c)

Cases Cited: 

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

Guy v Anderson [2013] ACTSC 5

R v BC [2020] ACTSC 308

R v Buckman (1988) 47 SASR 403

R v Kelly (No 2) [2021] ACTSC 253

R v Lawson [2020] ACTSC 336

R v Marston (1993) 60 SASR 320

R v Tran [1999] NSWCCA 109

Saga v Reid [2010] ACTSC 59

Stanitzki v Higgins (1994) 63 SASR 309

Tanner v Brown [2011] TASSC 59

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

Parties: 

Director of Public Prosecutions

Brett Anthony Lawson ( Offender)

Representation: 

Counsel

G Cuthel ( DPP)

A Qvist ( Offender)

Solicitors

ACT Director of Public Prosecutions

Fortify Legal ( Offender)

File Number:

SCC 232 of 2020

TAYLOR J:

Introduction

1․Brett Anthony Lawson is before this Court for a breach of a Suspended Sentence Order (SSO) imposed upon him by Burns J on 25 November 2020. The SSO was in relation to one charge (CC2020/7923) of receiving stolen property, contrary to s 313 of the Criminal Code 2002 (ACT) (the Criminal Code). The maximum penalty for that offence was, as it still is, 10 years imprisonment, a fine of $160,000 or both. 

2․The terms of the SSO saw the offender released on that day having been sentenced to a period of seven months imprisonment, suspended after he had served two months on the condition that he be of good behaviour for a period of 18 months or lesser period if appropriate. Conditions were attached to the Good Behaviour Order (GBO) upon which he was released requiring him to accept the supervision of the Director-General of ACT Corrective Services: R v Lawson [2020] ACTSC 336 at [14]. The offender is obliged to return to this Court pursuant to s 107(2) of the Crimes (Sentence Administration) Act 2005 (ACT) (the CSA Act) having committed further offences on 3 and 18 June 2021 that put him in breach of that SSO. The offending in June 2021 came some 7 months into the SSO and included an offence of a similar nature.  I will come to the specifics of the offending in a moment.

3․On 9 August 2023 the offender was sentenced in the ACT Magistrates Court for the offences that put him in breach of the Supreme Court SSO and committed to this Court for the breach to be dealt with according to the terms of s 110(2) of the CSA Act.

4․The outcome in the Magistrates Court of the further offending effectively saw the offender sentenced to a period of fulltime imprisonment that he had already served and released on a SSO immediately with an aggregate sentence of 18 months suspended immediately on condition that the offender be of good behaviour for a period of 12 months. The offender had spent some 84 days in custody in relation to the offences in the Magistrates Court.

The original offence

5․In brief, the conduct subject of the receiving offence was the offender possessing a bobcat excavator with an estimated value of $35,000. Burns J assessed the objective seriousness of the offending to be at the low to mid-range. His Honour did so taking into account the value of the item and the short period of time that the item was in the offender’s possession. His Honour also acknowledged the absence of evidence establishing any monetary gain flowing to the offender from the possession of the item. His Honour referred to an admission by the offender to methamphetamine use and referred to a suggestion that he had some mental health issues: at [6]. His Honour determined that the only appropriate outcome was a period of imprisonment and imposed a period of seven months’ imprisonment suspended after the offender had served almost two months, on condition that he accept supervision for 18 months.

The offending in breach of the SSO

6․The offender entered pleas of guilty in the Magistrates Court to a range of offences committed over the period 5 December 2019 to June 2021. It is perhaps a convenient circumstance that I am the Magistrate who dealt with the offender in August 2023 for all those offences. Consequently I am familiar with the offender’s background and his current circumstances. He first appeared before me for sentence in the Magistrates Court in December 2022. I determined on that occasion to adjourn the sentencing proceedings to allow the offender to continue to demonstrate his commitment to a pathway of rehabilitation that the material suggested, and his counsel submitted, was proving successful.  

7․On the occasion in December the fact of the Supreme Court SSO breach was not specifically drawn to my attention. I do not mention this with any intention to criticise the parties but rather to explain the history of the breach making its way to this Court. Through circumstances beyond the offender’s control but ultimately, I think, in his favour, the finalisation of the sentencing proceedings before me did not occur until August this year.

8․The offences that breached the Supreme Court SSO included some objectively serious offences committed in June 2021. The offences were:

(i)CC2021/6423 – Unauthorised possession/use of 1-2 firearms contrary to s 43(1)(a)(ii) of the FirearmsAct 1996 (ACT) (the Firearms Act) which carries a maximum penalty of 5 years imprisonment;

(ii)CC2021/6424 – Possess ammunition contrary to s 249(1) of the Firearms Act which carries a maximum penalty of 10 penalty units;

(iii)CC2021/6425 – Minor theft contrary to s 321 of the Criminal Code which carries a maximum penalty of 50 penalty units, 6 months imprisonment or both;

(iv)CC2021/6427 – Possess plate/document/device calculated to deceive contrary to s 20(c) of the Road Transport (Vehicle Registration) Act 1999 (ACT) which carries a maximum penalty of 50 penalty units, 6 months imprisonment or both;

(v)CC2021/7192 – Unauthorised possession/use of 1-2 firearms contrary to s 43(1)(a)(ii) of the Firearms Act which carries a maximum penalty of 5 years imprisonment;

(vi)CC2021/7196 – Possess ammunition contrary to s 249(1) of the Firearms Act which carries a maximum penalty of 10 penalty units;

(vii)CC2021/7193 – Burglary contrary to s 311 of the Criminal Code which carries a maximum penalty of 1400 penalty units, 14 years imprisonment or both;

(viii)CC2021/7194 – Theft contrary to s 308 of the Criminal Code which carries a maximum penalty of 1000 penalty units, 10 years imprisonment or both;

(ix)CC2021/7195 – Possess or use a prohibited weapon without authorisation contrary to s 5 of the Prohibited Weapons Act 1996 (ACT) which carries a maximum penalty of 500 penalty units, 5 years imprisonment or both; and

(x)CC2022/12003 – Receiving stolen property contrary to s 313 of the Criminal Code which carries a maximum penalty of 1000 penalty units, 10 years imprisonment or both.

9․Section 110 of the CSA Act dictates that upon being satisfied that a SSO has been breached:

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

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

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

10․As noted by Refshauge AJ in R v Kelly (No 2) [2021] ACTSC 253 at [15] the Court must have the facts of the original offending that resulted in the imposition of the suspended sentence with a GBO, as well as the facts of the offences that amount to the breach.

11․Having already referred to the facts of the original offence I turn to the facts underpinning the June 2021 offending.

12․In summary they are as follows. On 3 June 2021 ACT Police attended a property in Gilmore. They observed fresh tyre tracks in the grass/dirt area leading up to the side gate. The victim, Mr Jones, told the police that Mr Lawson, the offender, knew of the gun safe, where it was and that there were firearms inside. Mr Jones then reported various firearms stolen including a Sako bolt action .308 rifle, a Sako 75 bolt action .2506 rifle, an England side by side 12-gauge shotgun, a Browning shotgun and a Beretta shotgun. Mr Jones also reported a number of other items as stolen, itemised in an annexure to charge CC2021/7194, the total value of the items particularised as $21,000. This was the conduct that underpinned the burglary and associated theft charge.

13․On 10 June 2021, Mr Josh Craven had noticed his King’s branded spotlights stolen from his vehicle. The vehicle was parked in a visitor car park within the complex of 21 Aspinall Street, Watson ACT.

14․On 18 June 2021 a member of the public reported to police that he saw a long barrel firearm in a white coloured Mitsubishi in the carpark of 21 Aspinall Street, Watson. The police arrived around 7:47 AM to that carpark at Aspinall Street in Watson and located the vehicle with the numberplates as provided, and also noted an attached trailer with the registration plate T2134. This vehicle was then recognised through ACT Police Operations as stolen the previous night from Calwell.

15․Around 8.20 am, Mr Joseph Meli contacted Police Operations to report the theft of his grey trailer, ACT registration T2134G from Goyder Street, Narrabundah.  He told the police the trailer was attached to his vehicle the night before.  At about 9.22 am the offender was seen walking along Aspinall Street in Watson, he was then asked for identification and produced it.

16․The offender consented to the police looking in the vehicle and signed a consent form for the search to occur. During the search the police located and seized five live .308 rounds of ammunition and a single spent .308 casing from the centre drink holder.  There were also some cards, a fishing licence in the name of the offender and a small Leatherman in a brown leather case in a bag.  There were also two plastic round light covers with ‘XTM’ on them on the front passenger’s seat. 

17․The police then searched the canopy and located a long firearm with a silver trigger guard and a silver barrel case with a rubber exterior on a pile of toolboxes.  The firearm was a Sako bolt action .2506 riffle, and it was later discovered that the serial number had been ground off.  This was the subject of one of the possess firearm offences, CC2021/7192. 

18․It was then confirmed that the trailer had been stolen from Narrabundah and the ‘G’ of the licence plate had been removed. This was subject of the receiving charge, CC2022/12003.

19․Police accessed the canopy of the vehicle and discovered a Sako .308 calibre rifle.  This was the subject of the unauthorised possession of firearm, charge CC2021/6423 which was found to contain a loaded magazine on the underside.  Later the police executed a search warrant on the offender’s vehicle and located numerous items stolen in the burglary at the Heagney Crescent premises as well as a 9mm live round, 8.22 live rounds, that were the subject of possess ammunition charge, CC2021/7196 and a black handled knife in a leather sheath (the possess prohibited weapon offence, CC2021/7195).  The offender was placed under arrest.  He participated in a record of interview.

20․The offender was not, at the time, a registered firearms licence holder in any state or territory within Australia and he did not have permission to possess the trailer or possess the XTM brand of spotlights. 

Consideration and determination

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

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

22․In R v Kelly (No 2) [2021] ACTSC 253 at [15], the factors relevant to the consideration of whether to impose the suspended sentence or re-sentence were identified as follows:

(a) the proportion of the Good Behaviour Order served before the breach occurred: 

(b) any rehabilitation attained prior to the breaching conduct: 

(c) the prospects of further rehabilitation: 

(d) the relative seriousness of the offence or offences causing the breach and whether the     imposition of the suspended sentence would be disproportionate to the gravity of the         breach offending; 

(e) the nature of the offence or offences which breached the order, including whether it is of     similar conduct: 

(f) the actual facts of the matter for which the offender was first sentenced: 

(g) whether the breach evinces an intention to disregard the obligation to be of good    behaviour or to abandon any intention to be of good behaviour: 

(h) whether the offender has received any warnings with respect to the breaches:

(i) the level of understanding of the offender of his obligations under the terms of the order     and the consequences of a breach: 

(j) the nature of judicial and community resources previously devoted to the offender.

23․As I have already observed the offender committed the breach offences some seven months into the 18-month GBO. It would appear that the offender did not actively pursue rehabilitation despite the opportunity given to him to do so in those seven months as it is apparent that the use of illicit substances continued to be a significant challenge. Further, he remained estranged from his parents and his mental health did not improve with a lack of contact with his children being a major stressor for him. I have already referred to the facts for the offending – both the original offence and the subsequent offences – and noted that one of the breach offences was the same offence the Supreme Court SSO was imposed on. There is no doubt the breaching offences were objectively serious. Indeed, I consider the offending conduct to be more serious than the one charge that made up the original offending. This is not a matter where it could be said that the imposition of the suspended sentence would be disproportionate to the gravity of the breach offending.

24․In my view the breach conduct, at the time it was engaged in, did evince an intention to disregard the obligations to be of good behaviour.  That said, the offender, two years on, has now made real strides towards addressing the factors that were contributing to his engagement in the criminal justice system and he has excellent prospects of rehabilitation. It seems to me it is now absolutely clear to the offender the nature of the obligation he bears, and the consequences of breaching behaviour. In addition to spending 84 days in custody the offender had been forced to consistently engage with the criminal justice system for a significant period of time since the breaching conduct by way of bail supervision and court appearances. The resources devoted to the offender do not in my view appear to be out of the ordinary or exceptional.

25․A betrayal of the opportunity for rehabilitation through probation or parole or provisional release on bail is regarded very seriously: R v Tran [1999] NSWCCA 109 at [15]. It’s a matter that weighs against the offender in this instance. On the other hand, the offender demonstrated a compelling case for rehabilitation when he appeared before me in August including complete sobriety, a reunion with his parents who provide him with significant support, engagement with mental health services and fulltime employment. In addition, he was working towards greater financial stability and attempting to pursue a legal solution to re-connect with his children, something that was clearly motivating him to ongoing rehabilitation success. The transcript of the August proceedings records that I remarked that the offender re-establishing his relationship with his parents seemed to be a very influential aspect of his positive progress. I remain of that view. That relationship is providing a foundation of stability and emotional support from which to address his challenges.

26․The compelling case made plain before me in August has not altered. The Court Duty Report prepared for these proceedings confirms as much. The offender’s demonstrated progress remains a strong feature of these breach proceedings. That progress points to an outcome that allows him to remain in the community. In addition to the material in support of the offender telling the story of his excellent rehabilitation prospects is the fact that since his release on bail in September 2021, he has not had one breach of bail, nor re-offended in any way. This seems to me to be strong evidence that the offender is devoted to bettering himself and his efforts are having the exact effect sought by the Court and the community. He has, some two years on, addressed those factors that were driving him to commit offences namely illicit substance use and mental ill health.

27․The material before me which includes a tender bundle from the offender, contains numerous references attesting to the efforts and progress he has made while in the community on bail and since he was sentenced in August this year.  The documents variously confirm that the offender is working and continues to have the support of his immediate family and close family friends. They speak to the positive changes they have directly observed in the offender’s lifestyle and the remorse he has demonstrated from his past conduct. The bundle also includes a medical certificate dated 1 September 2023 from his treating general practitioner, Dr Deepali Sharma, and a letter from his specialist, Dr Michael Ow-Yang.  Both documents indicate the offender has suffered a recent back injury.

28․The letter from Dr Ow-Yang dated 30 August 2023 details the need for the offender to have urgent surgery in relation to a back injury he apparently suffered some four weeks prior to the date of the letter.  The letter reports that the offender is suffering with significant pain and describes a pressing need for the offender to have surgical intervention.  There is also a report from psychologist Adrian Willis confirming engagement by the offender with his services from May 2022, a letter from Mr Christopher Houston confirming the offender’s engagement in other mental health support groups and two further medical certificates from the offender’s general practitioner confirming his ongoing treatment for depression and anxiety, negative results of frequent drug testing and ongoing compliance with his medication regime.

29․All of the material, without exception, supports a view that to impose the suspended sentence would be a devastating blow to all of the progress the offender has been able to achieve while in the community since the breaching conduct occurred. It also supports the submission that for a period time the offender was struggling with a range of factors that were impacting his capacity to make good decisions, to keep relationships functioning and to remove himself from anti-social associates. He appears to have made a consistent effort to move on from that period of his life that saw him consistently engage with the criminal justice system.

30․Since he was granted bail in September 2021, he has consistently displayed his willingness to address the challenges that have faced him while in the community. In my view this is one of those matters that powerfully demonstrates the idea that protecting the community is best achieved through successful rehabilitation. A return to full time imprisonment would not be in the best interests of the offender or the community and would not serve the purposes of sentencing: s 7 Crimes (Sentencing) Act 2005 (the CS Act).

31․The prosecution did not press the Court to impose the suspended sentence. It seems to me that implicit in that position is recognition that in some cases significant weight can be afforded to rehabilitation.  In my view, this is such a case. The most appropriate outcome is to cancel the SSO and resentence the offender to a period of imprisonment suspended on condition that he be of good behaviour for a period that ties in with the orders I made in August this year.

32․In the Magistrates Court proceedings, I determined not to impose supervision as it was clear on the material before that the offender was actively engaged with services in Narooma, NSW where he now resides, and that position has not changed. He has been under bail supervision now for two years. He is well aware of the consequences of breaching and of the support he requires in the community to avoid future breaches. The prosecution did not press for supervision to be included as part of the order I make today.

33․For the reasons I have identified, pursuant to s 110 of the CSA Act I make the following order:

(1)I am satisfied that the Suspended Sentence Order in relation to charge CC2020/7923 has been breached. I cancel the Good Behaviour Order and resentence the offender pursuant to s 12(3) of the Crimes (Sentencing) Act 2005 (ACT) to a period of imprisonment for five months suspended immediately on the condition that he be of good behaviour for a period of 11 months.

I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor.

Associate:

Date: 13 September 2023