Director of Public Prosecutions v Page
[2023] ACTSC 176
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Page |
Citation: | [2023] ACTSC 176 |
Hearing Date: | 12 July 2023 |
Decision Date: | 14 July 2023 |
Before: | Baker J |
Decision: | See [41] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – obtaining property by deception – where offender has suffered serious brain injury since offence – Good Behaviour Order imposed |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 86 Crimes (Sentencing) Act 2005 (ACT) ss 13, 33(1), 35(2) Crimes Act 1900 (ACT) s 375 Criminal Code 2002 (ACT) s 326 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 DPP v Osmani (No 2) [2023] ACTSC 128 Law v Ilievski [2016] ACTSC 291 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 O'Brien v The Queen [2015] ACTCA 47 R v CK [2014] ACTSC 188 R v CK [2015] ACTSC 180 R v Elphick [2021] ACTSC 9 R v Hart [2016] ACTSC 16 R v Massey (No 3) [2021] ACTSC 156 R v Mooney [2017] ACTSC 358 R v QU [2019] ACTSC 155 R v Rhodes [2022] ACTSC 182 R v Slattery [2021] ACTSC 154 R v Woodman [2001] NSWCCA 310 |
Parties: | Director of Public Prosecutions Justin Page ( Offender) |
Representation: | Counsel G Cuthel ( DPP) N Deakes ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Number: | SCC 46 of 2013 |
BAKER J:
Introduction
1․The offender stands to be sentenced for 25 offences of obtaining property by deception contrary to s 326 of the Criminal Code 2002 (ACT). The maximum penalty for each offence is a fine of $110,000 or 10 years’ imprisonment, or both. These offences were capable of being dealt with summarily in the Magistrates Court, where the jurisdictional limit is a fine of $15,000 or imprisonment for 5 years, or both: s 375 of the Crimes Act 1900 (ACT).
2․Each of the offences was committed over a 27-day period in 2011. On each occasion, the offender used a BP Fuel Card to purchase fuel and oil. The Fuel Card did not belong to the offender. The Fuel Card belonged to an employee of the Family Court of Australia, who first reported that his card was missing in May 2011. The employee recalled last seeing the card at the BP service station in Watson, on or around 6 March 2011. At that time, the offender was working at the BP service station in Watson, and it seems likely that he acquired the card in connection with this role.
3․The value of each transaction varied, with transactions ranging from 91 cents to $102.98. Most of the transactions were for small amounts, averaging around $20 to $40. The total value of the property obtained was $974.68.
4․Police unsuccessfully attempted to locate the offender after he was identified on CCTV footage. A warrant was ultimately issued. The offender was arrested pursuant to that warrant on 10 January 2013. The offender entered pleas of guilty to all charges in the Magistrates Court on 25 January 2013. The offender’s proceedings were listed for sentence in the Supreme Court on 10 July 2013. The offender failed to attend, and a further warrant was issued for his arrest. Close to ten years later, on 20 December 2022, the offender handed himself in to ACT Police.
5․As outlined further below, approximately two months before he handed himself in to police, the offender was the victim of a violent assault in Queensland. He suffered a traumatic brain injury in that assault, which has resulted in significant cognitive impairment.
6․This traumatic brain injury has had a profound effect on the offender’s life. He now requires constant supervision due to memory difficulties. He is unable to drive, and does not catch public transport for fear that he will become lost. He barely leaves his home for the same reason. As further outlined below, every purpose of sentencing has been impacted by this injury.
7․The offender’s counsel submits that the appropriate disposition is a good behaviour order (GBO) under s 13 of the Crimes (Sentencing) Act 2005 (ACT). The prosecution accepts that, in all of the circumstances, it is open for the Court to impose a good behaviour order. For the reasons outlined below, I agree that a s 13 good behaviour order is appropriate.
Sentencing Considerations
Nature and circumstances of the offending and the resultant loss (ss 33(1)(a), (e), (i), (u) and (v) of the Crimes (Sentencing) Act)
8․Factors relevant to the assessment of the objective seriousness of the offending include the value of the property obtained (and whether the loss is retrievable), the degree of planning and sophistication of the offence, the motive of the offending, the duration of the offending and whether there is a breach of trust: R v Elphick [2021] ACTSC 9 at [116]; R v Slattery [2021] ACTSC 154 at [40]; R v Mooney [2017] ACTSC 358 at [49] – [55]; and R v QU [2019] ACTSC 155 at [9] – [10].
9․The present offences were opportunistic, and did not involve any significant planning or sophistication. The offending was committed on a frequent basis, over a period of 27 days. Some offences were committed on multiple occasions within one day. The cumulative value of the property obtained was $974.68. As the prosecutor submitted, these thefts impacted on each of the businesses whose property was obtained through the deceptive conduct. It also created inconvenience to the employee whose fuel card was taken, and to the Family Court, who issued the card and bore the loss of its use.
10․As a result of his brain injury, the offender cannot recall the offences, and cannot shed light on the motive for the offending. As the Pre-Sentence Report (PSR) author concluded, it is likely that the offences were committed to fund the offender’s then addiction to methamphetamine.
11․I am satisfied beyond reasonable doubt that the offender came into possession of the Fuel Card through his work as a BP employee. Accordingly, the offending also involved a breach of trust.
The offender’s subjective factors (s 33(1)(m) of the Crimes (Sentencing) Act)
12․At the time of the offences, the offender was 21 years old. He is currently 33 years old.
13․The PSR records that the offender’s early life was impacted by family violence and substance abuse. However, the offender’s counsel does not submit that the nature of the offender’s background is such as to attract Bugmy considerations; cf Bugmy v the Queen [2013] HCA 37; 249 CLR 571 at [40] – [44].
14․After the commission of the subject offences, the offender moved to Queensland. The PSR records that this relocation was prompted by multiple arrest warrants in New South Wales and Queensland, as well as in the ACT.
15․The offender had been using alcohol and methamphetamine from a young age (around age 9 for the former, and age 17 for the latter). Whilst living in Queensland, the offender lived in his vehicle and sold methamphetamine. At the peak of his substance misuse, he recalls using 7 to 8 grams of methamphetamine per day.
16․In October 2022, the offender was the victim of a violent assault and was admitted to hospital with significant head injuries. The offender remained in hospital for four weeks receiving treatment for very severe brain injuries, before participating in an intensive brain injury rehabilitation program for a further two weeks. As noted above, the offender’s brain injury has had major ongoing effects on all aspects of his life. His cognition and memory are significantly impaired, and he requires constant supervision and assistance with daily life. The offender experiences ongoing physical pain, including jaw pain which affects his ability to talk and eat, resulting in malnutrition. Additionally, the injury has significantly impacted the offender’s mental health and he is considered at a high suicide risk.
17․The offender reports that the assault was perpetrated by a person known to him. The matter is currently under investigation by the Queensland Police Service.
18․As a result of his brain injury, the offender is unfit for paid employment and is reliant on Centrelink benefits. He lives with his family, paying minimal rent, and spends most of his benefits on groceries and medical cannabis. He is in the process of obtaining a Disability Support Pension and intends to apply to participate in the National Disability Insurance Scheme.
19․The offender has informed ACT Corrective Services that he solely uses cannabis for medical purposes.
Plea of guilty and remorse (s 33(1)(w) and s 35(2) of the Crimes (Sentencing) Act)
20․The prosecution accepts that the offender’s plea of guilty was entered at the first available opportunity. I will afford a 25% discount for each of his early pleas.
21․As a result of the brain injury, the offender cannot recall the offences but acknowledged to ACT Corrective Services that it “sounds like something I might have done”. The PSR records that the offender did not minimise his culpability when interviewed by ACT Corrective Services.
22․I accept that the offender is remorseful.
Criminal history (s 33(1)(m) of the Crimes (Sentencing) Act)
23․The offender has a criminal history that consists primarily of traffic offences and bail offences. In addition to an offence committed as a juvenile, he has one conviction for break and enter in New South Wales. He has also been convicted of drug offences and weapons-related offences in New South Wales in 2017; of drug offences in Queensland in 2021; and of being a public nuisance in Queensland in 2021.
Current sentencing practice (s 33(1)(za)) of the Crimes (Sentencing) Act)
24․The prosecution and the offender’s counsel provided me with cases concerning sentences imposed for the offence of obtaining property by deception. These included Law v Ilievski [2016] ACTSC 291; Mooney; QU; Slattery; R v NQ [2017] ACTSC 317; R v CK [2014] ACTSC 188; R v CK [2015] ACTSC 180; R v Rhodes [2022] ACTSC 182 (restricted) and DPP v Osmani (No 2) [2023] ACTSC 128 (restricted). The prosecutor accepted that the decisions in NQ and Mooney were not of great assistance because of their differing facts.
25․It has been said that offences of this nature usually result in a sentence of six to 12 months imprisonment when dealt with by the Supreme Court: see Elphick at [154]. However, as the prosecutor and the offender’s counsel each submitted, there is a wide variation in the objective and subjective circumstances involved: R vWoodman [2001] NSWCCA 310 at [24] – [25].
26․Most importantly, as noted at the outset of these sentencing remarks, the offender’s traumatic brain injury has significantly impacted each of the purposes of sentencing. In these circumstances, the sentences imposed in comparative cases are of little assistance.
Totality and course of conduct (s 33(1)(c) of the Crimes (Sentencing) Act)
27․The offences were committed over a period of 27 days. As the prosecutor submitted, whilst the offences represent separate and distinct transactions, a number of the offences occurred on the same day, and some at the same time. Both parties submitted that I should separately assess the criminality involved in each transaction. I will do this, and will then render separate sentences partly cumulative, so as to ensure that the total criminality of the offences is reflected by the overall GBO imposed: O’Brien v The Queen [2015] ACTCA 47 at [26].
Delay
28․The offences were committed in 2011, which is over ten years ago.
29․The significance of delay in sentencing was discussed by Refshauge J in R v Hart [2016] ACTSC 16 at [33] – [36]. In summary, where delay in sentencing is not the fault of the offender, the sentencing judge may take into account the “uncertain suspense” in which an offender may be left and any rehabilitation that the offender has engaged in. However, where the delay is the fault of the offender, the “full benefit” of such rehabilitation should not be afforded, lest offenders be encouraged to abscond from bail, rehabilitate themselves and seek to have such rehabilitation taken into account in the offender’s favour.
30․The prosecutor properly accepted that the delay between 2011 and 2013 was not attributable to the offender. However, as the prosecutor submitted, the more extensive delay from 2013, when the offender failed to appear and relocated to Queensland to avoid apprehension, was entirely referable to the offender’s actions.
31․There is no suggestion that the offender engaged in any rehabilitation during the period that he was at liberty. Rather, as noted above, the Pre-Sentence Report records that the offender was selling methamphetamine during this period. The offender also committed several other offences during this period, as outlined above.
32․However, during the period that the offender was at liberty, he sustained the traumatic brain injury referred to above. There is no dispute that this Court must take this injury into account in determining the appropriate sentence to be imposed.
Time in custody
33․The offender has served four days in custody referable to the charges (two days in 2011 when he was arrested pursuant to the first warrant, and two days in December 2022, when he was arrested pursuant to the latter warrant).
Disposition
34․It is well-established that general deterrence, punishment and denunciation generally carry great weight in offences of obtaining property by deception. As Refshauge J stated in R v Massey (No 3) [2021] ACTSC 156 at [24]:
“… most dishonesty offences involve the dispossession of property from others. This is a breach of the standards of behaviour expected of people in the community and troubles its members. Often, people have worked hard to obtain the items which have been taken.”
35․However, the need for general deterrence, punishment, recognition of the harm caused, and the need to make the offender accountable for his actions are each significantly impacted by the injuries that the offender has sustained.
36․In Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [53], the High Court (citing Young CJ in R v Mooney (unreported, Victorian Court of Criminal Appeal, 21 June 1978) held:
General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.
37․The need for protection of the community is also greatly reduced as a result of this injury. The offender now lives at home, requiring the constant supervision of his family. As the Pre-Sentence Report author noted, the offender’s health issues and current cognitive state make it unlikely that he will have the capacity to premeditate or commit planned criminal acts in the future.
38․There remains some need for specific deterrence, as well as a moderated need for punishment, recognition of the harm caused, and general deterrence. I consider that each of these purposes may be met by the imposition of a good behaviour order under s 13 of the Crimes (Sentencing) Act. I confirm that weighing all the purposes of sentencing, the s 10 threshold is not crossed.
39․The imposition of a good behaviour order will also promote the offender’s rehabilitation. As the prosecutor submitted, the supervision of ACT Corrective Services will help the offender to access services and programs that he needs in order to facilitate his rehabilitation.
40․As the prosecutor submitted, it is important to bear the offender’s cognitive capacity in mind in framing conditions of the good behaviour order. Conditions should not be imposed that the offender cannot understand. Both the prosecutor and the offender’s counsel agreed that it is appropriate to impose a general supervision condition.
Orders
41․The Court orders:
(1)On the charge of obtaining property by deception (CC2013/957), the offender is convicted. I sentence the offender to the rising of the court.
(2)On the charge of obtaining property by deception (CC2013/966), the offender is convicted. I sentence the offender to the rising of the court.
(3)On the charge of obtaining property by deception (CC2013/949), the offender is convicted. I impose a good behaviour order under s 13 of the Crimes (Sentencing) Act requiring the offender to sign an undertaking to comply with his good behaviour obligations for a period of 9 months, commencing on 14 July 2023 and ending on 13 April 2024.
(4)On the charge of obtaining property by deception (CC2013/950), the offender is convicted. I impose a good behaviour order under s 13 of the Crimes (Sentencing) Act requiring the offender to sign an undertaking to comply with his good behaviour obligations for a period of 9 months, commencing on 14 July 2023 and ending on 13 April 2024.
(5)On the charge of obtaining property by deception (CC2013/951), the offender is convicted. I impose a good behaviour order under s 13 of the Crimes (Sentencing) Act requiring the offender to sign an undertaking to comply with his good behaviour obligations for a period of 9 months, commencing on 28 July 2023 and ending on 27 April 2024.
(6)On the charge of obtaining property by deception (CC2013/952), the offender is convicted. I impose a good behaviour order under s 13 of the Crimes (Sentencing) Act requiring the offender to sign an undertaking to comply with his good behaviour obligations for a period of 9 months, commencing on 28 July 2023 and ending on 27 April 2024.
(7)On the charge of obtaining property by deception (CC2013/953), the offender is convicted. I impose a good behaviour order under s 13 of the Crimes (Sentencing) Act requiring the offender to sign an undertaking to comply with his good behaviour obligations for a period of 9 months, commencing on 11 August 2023 and ending on 10 May 2024.
(8)On the charge of obtaining property by deception (CC2013/954), the offender is convicted. I impose a good behaviour order under s 13 of the Crimes (Sentencing) Act requiring the offender to sign an undertaking to comply with his good behaviour obligations for a period of 9 months, commencing on 25 August 2023 and ending on 24 May 2024.
(9)On the charge of obtaining property by deception (CC2013/955), the offender is convicted. I impose a good behaviour order under s 13 of the Crimes (Sentencing) Act requiring the offender to sign an undertaking to comply with his good behaviour obligations for a period of 9 months, commencing on 8 September 2023 and ending on 7 June 2024.
(10)On the charge of obtaining property by deception (CC2013/956), the offender is convicted. I impose a good behaviour order under s 13 of the Crimes (Sentencing) Act requiring the offender to sign an undertaking to comply with his good behaviour obligations for a period of 9 months, commencing on 8 September 2023 and ending on 7 June 2024.
(11)On the charge of obtaining property by deception (CC2013/958), the offender is convicted. I impose a good behaviour order under s 13 of the Crimes (Sentencing) Act requiring the offender to sign an undertaking to comply with his good behaviour obligations for a period of 9 months, commencing on 22 September 2023 and ending on 21 June 2024.
(12)On the charge of obtaining property by deception (CC2013/960), the offender is convicted. I impose a good behaviour order under s 13 of the Crimes (Sentencing) Act requiring the offender to sign an undertaking to comply with his good behaviour obligations for a period of 9 months, commencing on 22 September 2023 and ending on 21 June 2024.
(13)On the charge of obtaining property by deception (CC2013/962), the offender is convicted. I impose a good behaviour order under s 13 of the Crimes (Sentencing) Act requiring the offender to sign an undertaking to comply with his good behaviour obligations for a period of 9 months, commencing on 6 October 2023 and ending on 5 July 2024.
(14)On the charge of obtaining property by deception (CC2013/963), the offender is convicted. I impose a good behaviour order under s 13 of the Crimes (Sentencing) Act requiring the offender to sign an undertaking to comply with his good behaviour obligations for a period of 9 months, commencing on 6 October 2023 and ending on 5 July 2024.
(15)On the charge of obtaining property by deception (CC2013/964), the offender is convicted. I impose a good behaviour order under s 13 of the Crimes (Sentencing) Act requiring the offender to sign an undertaking to comply with his good behaviour obligations for a period of 9 months, commencing on 6 October 2023 and ending on 5 July 2024.
(16)On the charge of obtaining property by deception (CC2013/965), the offender is convicted. I impose a good behaviour order under s 13 of the Crimes (Sentencing) Act requiring the offender to sign an undertaking to comply with his good behaviour obligations for a period of 9 months, commencing on 6 October 2023 and ending on 5 July 2024.
(17)On the charge of obtaining property by deception (CC2013/967), the offender is convicted. I impose a good behaviour order under s 13 of the Crimes (Sentencing) Act requiring the offender to sign an undertaking to comply with his good behaviour obligations for a period of 9 months, commencing on 6 October 2023 and ending on 5 July 2024.
(18)On the charge of obtaining property by deception (CC2013/968), the offender is convicted. I impose a good behaviour order under s 13 of the Crimes (Sentencing) Act requiring the offender to sign an undertaking to comply with his good behaviour obligations for a period of 9 months, commencing on 20 October 2023 and ending on 19 July 2024.
(19)On the charge of obtaining property by deception (CC2013/969), the offender is convicted. I impose a good behaviour order under s 13 of the Crimes (Sentencing) Act requiring the offender to sign an undertaking to comply with his good behaviour obligations for a period of 9 months, commencing on 20 October 2023 and ending on 19 July 2024.
(20)On the charge of obtaining property by deception (CC2013/970), the offender is convicted. I impose a good behaviour order under s 13 of the Crimes (Sentencing) Act requiring the offender to sign an undertaking to comply with his good behaviour obligations for a period of 9 months, commencing on 20 October 2023 and ending on 19 July 2024.
(21)On the charge of obtaining property by deception (CC2013/971), the offender is convicted. I impose a good behaviour order under s 13 of the Crimes (Sentencing) Act requiring the offender to sign an undertaking to comply with his good behaviour obligations for a period of 9 months, commencing on 20 October 2023 and ending on 19 July 2024.
(22)On the charge of obtaining property by deception (CC2013/972), the offender is convicted. I impose a good behaviour order under s 13 of the Crimes (Sentencing) Act requiring the offender to sign an undertaking to comply with his good behaviour obligations for a period of 9 months, commencing on 20 October 2023 and ending on 19 July 2024.
(23)On the charge of obtaining property by deception (CC2013/973), the offender is convicted. I impose a good behaviour order under s 13 of the Crimes (Sentencing) Act requiring the offender to sign an undertaking to comply with his good behaviour obligations for a period of 9 months, commencing on 3 November 2023 and ending on 2 August 2024.
(24)On the charge of obtaining property by deception (CC2013/959), the offender is convicted. I impose a good behaviour order under s 13 of the Crimes (Sentencing) Act requiring the offender to sign an undertaking to comply with his good behaviour obligations for a period of 12 months, commencing on 17 November 2023 and ending on 16 November 2024.
(25)On the charge of obtaining property by deception (CC2013/961), the offender is convicted. I impose a good behaviour order under s 13 of the Crimes (Sentencing) Act requiring the offender to sign an undertaking to comply with his good behaviour obligations for a period of 12 months, commencing on 1 December 2023 and ending on 30 November 2024.
(26)The overall term of the good behaviour orders is 1 year, 4 months and 17 days, the earliest of which will commence today,14 July 2023, and the latest of which will end on 30 November 2024.
(27)Each good behaviour order is subject to the additional conditions that:
(a)the offender accept the supervision of Community Corrections for such period as Corrective Services deem appropriate.
(b)the offender report to Community Corrections by 4PM today by telephone, with the assistance of defence counsel.
| I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Baker Associate: A McCook Date: 14 July 2023 |
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