Director of Public Prosecutions v Welsh (No 2)

[2023] ACTSC 347

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Welsh (No 2)

Citation: 

[2023] ACTSC 347

Hearing Date: 

10 November 2023

Decision Date: 

22 November 2023

Before:

Baker J

Decision: 

(1)    I adjourn the proceedings to 13 May 2024.

(2)    I amend Bail Condition 1 to read as follows:

(a)    Return to the Glen Rehabilitation Centre at 50 Church Road, Chittaway Point NSW 2261 as directed by the Glen Rehabilitation Centre, and to remain at the Glen Rehabilitation Centre.

(3)    Bail to continue.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offender completed first stages of residential rehabilitation program – offender offered extension of time with rehabilitation program – substantive sentence proceedings already adjourned once – whether adjournment of sentence until after completion of program is appropriate – s 27 Crimes (Sentencing) Act 2005 (ACT) – Griffiths remand – whether s 27 displaced common law power to impose Griffiths remand – Griffiths remand imposed.

Cases Cited: 

DPP v Welsh [2023] ACTSC 209

DPP v McConnell-Imbriotis [2023] ACTSC 256

R v KS [2022] ACTSC 133; 18 ACTLR 160

HA (a pseudonym) v the Queen [2021] VSCA 64

High v Willis [2008] ACTSC 88; 188 A Crim R 49

Legislation Cited: 

Crimes (Sentencing) Act 2005 (ACT), s 27

Criminal Code 2002 (ACT), s 45A, 312, 318

Magistrates Court Act 1930 (ACT), s 90B

Road Transport (Driver Licensing) Act 1999 (ACT), s 32(1)(a)

Road Transport (Vehicle Registration) Act 1999 (ACT), s 22(1)(a)

Texts Cited:

Vanessa Edwige and Dr Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (Report commissioned by the Bugmy Bar Book Committee, Public Defenders New South Wales, 2021)

Parties: 

Director of Public Prosecutions ( DPP)

Dean Ivan Welsh ( Offender)

Representation: 

Counsel

M Dyason ( DPP)

A Doig ( Offender)

Solicitors

ACT Director of Public Prosecutions

James Horniblow ( Offender)

File Numbers:

SCC 340 of 2022

SCC 341 of 2022

BAKER J:      

Introduction

1․The offender, Dean Ivan Welsh, has entered pleas of guilty to the following offences:

(a)Count 1 (CC2022/6049): aggravated burglary by virtue of s 45A of the Criminal Code 2002 (ACT), contrary to s 312 of the Criminal Code.

(b)Count 3 (SCCAN2023/35): burglary by virtue of s 45A of the Criminal Code, contrary to s 311 of the Criminal Code.

(c)Count 4 (CC2022/6053): take motor vehicle without consent by virtue of s 45A of the Criminal Code, contrary to s 318 of the Criminal Code.

(d)Count 5 (CC2022/6054): aggravated burglary by virtue of s 45A of the Criminal Code, contrary to s 312 of the Criminal Code.

(e)Count 6 (SCCAN2023/36): take motor vehicle without consent by virtue of s 45A of the Criminal Code, contrary to s 318 of the Criminal Code.

(f)Count 7 (CC2022/6057): drive motor vehicle without consent of the Criminal Code, contrary to s 318 of the Criminal Code.

2․The following three charges have also been committed for transfer to the Supreme Court from the ACT Magistrates Court pursuant to s 90B of the Magistrates Court Act 1930 (ACT):

(a)CC2022/6056: damage property by virtue of s 45A of the Criminal Code, contrary to s 116(3) of the Crimes Act 1900 (ACT)

(b)CC2022/6058: drive while disqualified (repeat offender) contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT).

(c)CC2022/6059: drive motor vehicle with not properly issued numberplates, contrary to s 22(1)(a) of the Road Transport (Vehicle Registration) Act 1999 (ACT).

3․It has also been agreed between the offender and the prosecution that, at sentence, I will also be asked to take into account the following offence under Part 4.4 and s 57 of the Crimes (Sentencing) Act 2005 (ACT):

(a)SCCAN2023/34: theft by virtue of s 45A, contrary to s 308 of the Criminal Code 2002 (ACT).

4․On 10 November 2023, I adjourned the sentence proceedings to enable the offender to continue the intensive rehabilitation program that he is undertaking. These are my reasons for so ordering.

Background

The offending

5․The offences relate to a series of burglaries that occurred during the early hours of 10 June 2022. In brief, between 3:30am and 5:00am, the offender, together with two other co-offenders, entered three separate residences and stole a number of personal items, including car keys which were used to take various vehicles. In respect of the burglary of the first house (Count 1), one of the unknown offenders was in possession of a handgun. In respect of the second burglary (Count 3), entry was gained to the house by cutting open a security door. One of the offenders took the key to the vehicle parked in the garage connected to the residence, which was then taken from the premises (Count 4).  Entry was gained in the third burglary (Count 5) when one of the offenders kicked open an external door to the premises. One of the offenders proceeded to drive away with a vehicle parked out of the front of the residence (Count 6). Later that evening, police seized one of the stolen vehicles which the offender was seen to be driving (Count 7).

Procedural history

6․The proceedings first came before the Court for sentence on 14 July 2023.  At that time, the offender was in custody for offending unrelated to the present charges. The non-parole period for the unrelated offending expired on 25 August 2023.

7․At the outset of the proceedings for sentence, the offender’s counsel informed the Court that the offender had been accepted for a 12-week program commencing on 25 August 2023 at The Glen Rehabilitation Centre (“the Program”), a full-time drug and alcohol rehabilitative program in New South Wales. Counsel for the offender sought an adjournment of the sentencing proceedings until the offender’s application for parole (and therefore, his eligibility to complete the Program) had been determined. It was indicated that if parole was granted, a further adjournment would be sought to enable the offender to complete the Program before he is sentenced. The prosecution did not oppose this course. I granted the adjournment sought on 3 August 2023: DPP v Welsh [2023] ACTSC 209 at [13] – [14].

8․The offender was granted parole on 22 August 2023. Prior to that date, the Glen Rehabilitation Centre confirmed that the offender had been accepted into the Program. On 23 August 2023, I granted the offender bail and a further adjournment to permit him to participate in the Program.

9․On 10 November 2023, the offender again appeared before me. His counsel tendered two letters from the Glen dated 23 October 2023 and 8 November 2023 and two Certificates of Attendance at rehabilitation courses issued by the Glen. Both letters indicated that the offender has been actively engaging with the Program and that he has been accepted into the Program for a further six months (which will involve weekly counselling and specialised case management). The letter of 8 November 2023 attests to the offender’s positive engagement in the Program and confirms that the offender has actively sought to identify and address the underlying issues associated with his addiction. The two Certificates of Attendance from the Glen also indicated that the offender had attended several rehabilitation sessions relating to anger management and relapse prevention.

10․The material from the Glen is very positive. The letter of 23 October 2023 addresses the offender’s Indigenous heritage, and notes that the offender has spent time with therapists and completed “cultural healing courses” which have “allowed him to reconnect back with his spirit and culture.” As Vanessa Edwidge and Dr Paul Gray report in Significance of Culture to Wellbeing, Healing and Rehabilitation (Report commissioned by the Bugmy Bar Book Committee, Public Defenders New South Wales, 2021), connection to culture is a powerful protective factor that promotes resilience, self-esteem, self-worth and ultimately, rehabilitation (see especially at [212] – [214]). See similarly HA (a pseudonym) v the Queen [2021] VSCA 64 at [58] – [59], where the Court noted that “[r]econnection of an Aboriginal offender with culture and Country can constitute a pivotal factor diverting such a person from entrenched offending behaviour”.

11․Counsel for the offender submitted that it is in both the offender’s and the community’s best interests that the offender “turns this good start into a clear lifestyle change” and “become[s] a pro-social member of society.” It was submitted that in light of the offender’s engagement with the Program, his prospects of rehabilitation are “very positive”. Counsel for the offender submitted that this Court should afford the offender an opportunity to continue his rehabilitation, by either adjourning or deferring the substantive proceedings (and continuing the offender’s bail until that date) or by imposing a suspended sentence or Good Behaviour Order upon the offender at this time.

12․The prosecutor accepted that the offender “has taken a full advantage of [the] opportunity” to enter rehabilitation at the Glen. The prosecutor acknowledged that imposing a sentence of full-time imprisonment would entirely undermine the rehabilitation which the offender has embarked on, and accepted that the offender ought to be afforded the opportunity to continue engaging in this process. The prosecutor submitted that the preferable course of action would be to adjourn the offender’s sentence proceedings for another six months to allow the offender to continue his rehabilitation, rather than imposing a suspended sentence at this time.

Determination

13․I was of the view that it was preferable for the proceedings to be adjourned to enable the offender to complete the Program prior to imposing sentence. This course will ensure that the full range of sentencing options are available to the Court at the time of sentence. I was satisfied that the community will be properly protected by the continuation of the present bail conditions, which, inter alia, require that the offender reside at the Glen Rehabilitation Centre, and not leave the centre without permission of the Glen.

14․In this context, a question arose as to whether such an adjournment should be made under s 27 of the Crimes (Sentencing) Act 2005 (ACT), which provides for the making of a Deferred Sentence Order (DSO), or whether the order should be made under the general power of the Court to adjourn proceedings (a Griffiths remand). 

15․Section 27 provides as follows:

27 Deferred sentence orders—making

(1)This section applies if—

(a)an offender has been convicted or found guilty by a court of an offence punishable by imprisonment; and

(b)the court has not sentenced the offender for the offence; and

(c)the offender is neither serving, nor liable to serve, a term of imprisonment for another offence; and

(d)the court considers the offender should be given an opportunity to address his or her criminal behaviour, and anything that has contributed to the behaviour, before the court sentences the offender for the offence; and

(e)the court is satisfied that it may release the offender on bail under the Bail Act 1992.

(2)The court may make an order (a deferred sentence order) requiring the offender to appear before the court at the time and place stated in the order to be sentenced for the offence.

NoteThe maximum period of the order is 12 months (see s 122 (1)).

(3)If the court makes a deferred sentence order for the offender, the court must release the offender on bail under the Bail Act 1992.

(4)A deferred sentence order applies to all offences for which the court may sentence the offender, whether or not they are punishable by imprisonment.

(5)A deferred sentence order may include any condition the court considers appropriate for subsection (1) (d).

Examples

see the examples to section 13 (4) (g) (Good behaviour orders)

NoteBail may be granted subject to conditions (see Bail Act 1992, s 25).

(6)This section is subject to chapter 8 (Deferred sentence orders).

16․Additional provisions which apply where a DSO is made under s 27 include:

(a)Section 117, which sets out a non-exclusive list of the matters which the court must consider when deciding to impose a deferred sentence, including consideration of any Pre-Sentence Report (PSR) material or evidence given by the person preparing that PSR.

(b)Section 118, which provides that if a DSO is made, the Court must state in general terms the penalty that the offender might receive if the offender complies with the order and bail conditions, and the penalty that the offender might receive if the offender does not comply with the order or bail conditions.

(c)Section 119, which enables the Court to require the offender to appear before the Court at set times throughout the duration of the deferral, so that the Court may monitor the offender’s compliance with the order.

(d)Section 122, which provides that a DSO cannot last longer than 12 months after the day it is made; and at the end of the order the court must sentence the offender.

17․There may be a question as to the Court’s power to make a DSO in respect of the offender. Under s 27(1)(c) of the Crimes (Sentencing) Act, a DSO is not available where an offender is serving, or is “liable to serve”, a term of imprisonment for another offence. The offender is presently serving the balance of parole for two counts of obtaining property by deception (CC2022/11218 and CC2022/11219), and one count of unlawful possession of stolen property (CC 2022/11307).

18․It is unclear whether a person serving a balance of parole term is “liable to serve” a term of imprisonment within the meaning of s 27(1)(c); or whether the phrase “liable to serve” should be narrowly construed, so that it only applies where an offender is immediately liable to serve a term of imprisonment (such as where the offender has breached a condition of parole, or is on bail for other offences). In view of the beneficial purpose of the provision, which intends to allow Courts flexibility in sentencing offenders, I would incline to the latter construction.

19․However, it is not necessary for me to resolve this issue in the present case. Despite some earlier indications to the contrary, more recent decisions of this Court have held that a court’s power to order a Griffiths remand survived the enactment of s 27 of the Crimes (Sentencing) Act: R v KS [2022] ACTSC 133; 18 ACTLR 160 at 164 [15]; DPP v McConnell-Imbriotis [2023] ACTSC 256 at [8] – [9]; cf High v Willis [2008] ACTSC 88; 188 A Crim R 493 at [27] – [30]. In the present proceedings, the prosecutor did not contend that the enactment of s 27 of the Crimes (Sentencing) Procedure Act abrogated the availability of a Griffiths remand, and indeed, submitted that in the circumstances of the present case, the Court should make a Griffiths remand rather than a DSO.

20․In view of the prosecutor’s submissions, I considered it appropriate to make a Griffiths remand rather than a DSO. Although s 118 (which, as outlined above, requires the Court to indicate the sentences which might be imposed after the expiry of the DSO) does not apply to such an order, I nonetheless informed the offender in “general terms” about the sentences that would be imposed. In particular, I informed the offender that an alternative to full-time imprisonment may be considered by the Court if he abides by the order and his bail conditions, whereas it is unlikely that any sentence other than full-time imprisonment would be appropriate in the event of any breach of his bail conditions.

Orders

21․For the above reasons, I made the following orders:

(1)I adjourn the sentence proceedings to 13 May 2024.

(2)I amend Bail Condition 1 to read as follows:

(b)Return to the Glen Rehabilitation Centre at 50 Church Road, Chittaway Point NSW 2261 as directed by the Glen Rehabilitation Centre, and to remain at the Glen Rehabilitation Centre.

(3)Bail to continue.

I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate:

Date: 22 November 2023