Director of Public Prosecutions v Welsh (No 3)

[2024] ACTSC 179

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Welsh (No 3)

Citation: 

[2024] ACTSC 179

Hearing Date: 

24 August 2023, 10 November 2023, 20 May 2024

Decision Date: 

6 June 2024

Before:

Baker J

Decision: 

See [67].

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – burglary – taking and driving motor vehicles without consent – offence committed in breach of conditional liberty – Griffiths remand previously imposed – offender was admitted into a full-time residential rehabilitation program – offender has engaged in significant rehabilitation since breach – overall sentence of imprisonment of one year and six months – total sentence of imprisonment wholly suspended upon entering a good behaviour order.

Legislation Cited: 

Crimes (Sentence Administration) Act 2005 (ACT) ss 65(2), 86

Crimes (Sentencing) Act 2005 (ACT) ss 27, 33

Crimes Act 1900 (ACT) s 116(3)

Criminal Code 2002 (ACT) ss 45A, 308, 318

Magistrates Court Act 1930 (ACT) s 90B

Road Transport (Driver Licensing) Act 1999 (ACT) ss 32(1), 32(5)

Road Transport (General) Act 1999 (ACT) s 65

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

Cases Cited: 

DPP v Fisher [2023] ACTSC 29

DPP v Makoi(No 3) [2023] ACTSC 337

DPP v Welsh [2023] ACTSC 209

DPP v Welsh (No 2) [2023] ACTSC 347

DPP v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428

Griffiths v The Queen [1977] HCA 44; 137 CLR 293

Hogan v Hinch [2011] HCA 4; 243 CL 506

O'Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244

R v Andy [2022] ACTSC 54

R v Catanzariti [2020] ACTSC 326

R v Crawford (No 1) [2020] ACTSC 245

R v Dugdale [2017] ACTSC 203

R v Hagen [2022] ACTSC 362

R v Horne [2017] ACTSC 36

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

R v Knight [2021] ACTSC 165

R v Livas (No 2) [2020] ACTSC 116

R v Lovelock [2020] ACTSC 161

R v Lutze [2020] ACTSC 121

R v Minnis [2014] ACTSC 268

R v Moore [2021] ACTSC 333

R v Pham [2015] HCA 39; 256 CLR 550

R v Po'oi [2021] ACTSC 151

R v Rosewarne [2021] ACTSC 217

R v Watson [2022] ACTSC 95

Texts Cited:

Explanatory Statement to the Road Transport (General) Bill 1999 (ACT)

Vanessa Edwige and Dr Paul Gray, Significance of Culture to Wellbeing Healing and Rehabilitation (Report, Public Defenders (NSW), The Bugmy Bar Book Project, June 2021)

Parties: 

Director of Public Prosecutions ( Crown)

Dean Ivan Welsh ( Offender)

Representation: 

Counsel

M Dyason ( Crown)

A Doig ( Offender)

Solicitors

ACT Director of Public Prosecutions

James Horniblow ( Offender)

File Number:

SCC 340 of 2022

SCC 341 of 2022

BAKER J:      

Introduction

1․On 11 May 2023, Mr Welsh pleaded guilty to a number of offences, including aggravated burglary, burglary and taking and driving motor vehicles without consent.

2․Mr Welsh has a lengthy criminal history for property and other offences, which includes periods of full-time custody. He was on conditional liberty for such offending at the time that he committed the offences now in issue. Generally speaking, aggravated burglary and burglary offences, particularly when committed by a person in breach of conditional liberty, require the imposition of a sentence that involves a substantial period of full-time custody.

3․However, shortly before coming before me for sentence last year, Mr Welsh was fortunate to be accepted in a full-time residential rehabilitation program at “the Glen” on the Central Coast of New South Wales. I gave Mr Welsh what is known as a “Griffiths remand”: Griffiths v The Queen [1977] HCA 44; 137 CLR 293; DPP v Welsh [2023] ACTSC 209; DPP v Welsh (No 2) [2023] ACTSC 347 at [20]. What this means is that I adjourned the proceedings to enable Mr Welsh to be admitted into the Glen program, and to take advantage of this opportunity for rehabilitation: see R v KS [2022] ACTSC 133 at [9]. The prosecution did not oppose this course.

4․As the prosecutor submitted, Mr Welsh has “made good [on this opportunity] and then some”. He has completed the Glen rehabilitation program. After leaving the program, he returned to his family home in Canberra and worked as a handyman for “The Property Doctor” for approximately three months, before leaving to start his own landscaping business. He proactively arranged counselling for himself and has completed a number of counselling sessions with Karralika Programs. He has been attending regular meetings with his parole officer, initially meeting weekly and as of more recently fortnightly. His urinalysis results have all come back negative.

5․It is well accepted that the most effective guarantor of the protection of the community is rehabilitation: Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 536-537 [32]. Over the past 10 months, Mr Welsh has amply demonstrated his commitment to his own rehabilitation. For these reasons, which are elaborated below, I am satisfied that it is appropriate to afford Mr Welsh the opportunity to continue on his rehabilitative path by imposing suspended sentences for each of the offences with which he is now charged. The prosecution does not oppose this course.

The offences

6․The offences for which Mr Welsh stands to be sentenced are as follows:

(a)Count 1 (CC2022/6049): aggravated burglary by virtue of s 45A contrary to s 312 of the Criminal Code 2002 (ACT). The maximum penalty for aggravated burglary is 2000 penalty units, imprisonment for 20 years, or both.

(b)Count 3 (SCCAN2023/35): burglary by virtue of s 45A, contrary to s 311 of the Criminal Code 2002 (ACT). The maximum penalty for burglary is 1400 penalty units, imprisonment for 14 years, or both.

(c)Count 4 (CC2022/6053): take motor vehicle without consent by virtue of s 45A, contrary to s 318 of the Criminal Code 2002 (ACT). The maximum penalty for take motor vehicle without consent is 500 penalty units, imprisonment for 5 years, or both.

(d)Count 5 (CC2022/6054): aggravated burglary by virtue of s 45A contrary to s 312 of the Criminal Code 2002 (ACT). The maximum penalty for aggravated burglary is 2000 penalty units, imprisonment for 20 years, or both.

(e)Count 6 (SCCAN2023/36): take motor vehicle without consent by virtue of s 45A, contrary to s 318 of the Criminal Code 2002 (ACT). The maximum penalty for take motor vehicle without consent is 500 penalty units, imprisonment for 5 years, or both.

(f)Count 7 (CC2022/6057): drive motor vehicle without consent, contrary to s 318 of the Criminal Code 2002 (ACT). The maximum penalty for drive motor vehicle without consent is 500 penalty units, imprisonment for 5 years, or both.

7․In addition, the following three charges were also committed for transfer to the Supreme Court from the ACT Magistrates Court pursuant to s 90B of the Magistrates Court Act 1930 (ACT) and are to be dealt with by way of sentence in this Court:

(a)CC2022/6056 – damage property contrary to s 116(3) of the Crimes Act 1900 (ACT) and by virtue of s 45A of the Criminal Code 2002 (ACT). The maximum penalty for damage property is 50 penalty units, imprisonment for 2 years, or both.

(b)CC2022/6058 – drive while disqualified (repeat offender) contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT). The maximum penalty for drive while disqualified (repeat offender) is 100 penalty units, imprisonment for 1 year, or both; and driver licence disqualification of 24 months or longer.

(c)CC2022/6059 – drive motor vehicle with not properly issued number plates contrary to s 22(1)(a) of the Road Transport (Vehicle Registration) Act 1999 (ACT). The maximum penalty for drive a motor vehicle with not properly issued number plates is 20 penalty units.

8․The following offence is also to be taken into account under Part 4.4 and s 57 of the Crimes (Sentencing) Act 2005 (ACT), as agreed by the prosecution and Mr Welsh:

(a)Count 2 (SCCAN2023/34): theft by virtue of s 45A, contrary to s 308 of the Criminal Code 2002 (ACT). The maximum penalty for theft is 1000 penalty units, imprisonment for 10 years or both.

The offending

9․The offending relates to a series of burglaries committed in the early hours of Friday, 10 June 2022.

10․At around 3:30am, three males, including Mr Welsh, entered a home in Watson through an unlocked room beside the garage. They entered the garage and took a wallet and a key to another vehicle from a vehicle in the garage. This was captured on CCTV. One of the males appeared to be carrying a handgun. This is the conduct comprising counts 1 and 2 (aggravated burglary and theft).

11․Sometime before 4:12am, two males, including Mr Welsh, cut through the security screen of a home in Duffy. They then unlocked a connecting door and accessed the garage, where they took the key to a silver Mercedes Benz vehicle which they used to take the vehicle. CCTV footage shows the vehicle leaving the residence at 4:12am. This is the conduct comprising counts 3 and 4 (burglary and take motor vehicle without consent).

12․At around 4:36am, three males (including Mr Welsh) approached another home in Duffy. They were captured on a doorbell CCTV camera. Mr Welsh and another male kicked in the door, damaging the door frame and locking mechanism (comprising the transfer charge of damage property). The third male entered the house and took the keys to a white Volkswagen vehicle. The white Volkswagen also had a number of other keys inside it (including two keys to other vehicles and five other keys). Mr Welsh and the other male ran away and returned to a car which was parked nearby. Two other cars were nearby. They were stopped out the front of the residence, with their lights illuminated. At around 5:00am, the white Volkswagen and the other two cars were all driven away. This is the conduct comprising counts 5 and 6 (aggravated burglary and take motor vehicle without consent).

13․At about 5:28am, Mr Welsh and the other two males were captured on CCTV at a 7-Eleven store in Jerrabomberra. Mr Welsh was driving a blue Audi bearing stolen number plates. The other two males were driving the stolen silver Mercedes Benz and the stolen white Volkswagen, respectively.

14․On the evening of 10 June 2024, a CCTV camera captured Mr Welsh parking the stolen Volkswagen at a residence in Griffith, which was close to his own home. This is the conduct comprising Count 7, drive motor vehicle without consent, and the transfer charges of drive while disqualified and drive with not properly issues number plates. One passenger was inside the vehicle. The vehicle had new number plates attached, which had been stolen from an address in Barton between 9 and 10 June 2022. Later that night, police attended the Griffith address and seized the Volkswagen. Mr Welsh was arrested on 21 June 2022.

Subjective circumstances

15․Mr Welsh is currently 27 years old. At the time of the offending, he was 25 years old.

16․Mr Welsh is an Aboriginal man of Wailwan and Wiradjuri descent. His parents separated when he was two years old. He lived with his father until he was 10 years old. This was a challenging period for Mr Welsh, as his father was addicted to drugs and alcohol. From the age of 10, Mr Welsh lived with his mother. Mr Welsh has a close relationship with his mother, who has supported him in attending school, engaging with his culture, and accessing mental health and substance use treatment. Mr Welsh is the middle child of four siblings. His eldest sister passed away when she was 21 years old, causing him significant grief.

17․Mr Welsh reported a history of illicit substance misuse. He started using cannabis and cocaine when he was 18 years old. He began using methamphetamine in 2020, which escalated to daily drug use and addition.

18․Mr Welsh tendered letters from his younger sister and his mother. In her letter, his sister describes her close “connections, kinship and bonds” with Mr Welsh, stating that he “has raised and continue[s] to raise me”. She also expressed confidence in his rehabilitation, acknowledging that he went “down the wrong path” but “I strongly believe Dean is a changed man and leaving Canberra for that period of time has impacted his thought processing and reaction to problems”. She expressed hope that Mr Welsh could return to live with his family in Canberra, stating that his relapse is his family’s “biggest fear” but “he has all the support, services and growth to continue his amazing journey”.

19․Mr Welsh’s mother also described the close bond between herself and her son. She stated that she believed his continued recovery would be facilitated by her daily support and the strong connection the family share.

Criminal history

20․Mr Welsh has an extensive criminal history, beginning when he was 14 years old. As an adult, Mr Welsh has a number of convictions including for aggravated burglary, drug possession/supply/trafficking offences, driving offences, and theft.

21․The present offending was committing in breach of an Intensive Correction Order imposed by the Magistrates Court in July 2021 for charges of obtaining property by deception and possessing stolen property, all committed over a period between October 2020 and January 2021.

22․On 7 March 2023, after the commission of the present offences, and whilst the offences were pending in this Court, Mr Welsh came before Magistrate Theakston for sentence on a charge of unlawful possession of stolen property and two charges of obtaining property by deception, committed in late 2022. These offences were committed in breach of an ICO that had previously been imposed. Magistrate Theakston cancelled the ICO and imposed a sentence of 1 year 6 months and 19 days’ imprisonment to be served full-time. The non-parole period for that offending expired on 25 August 2023.

Procedural history

23․This matter first came before me for sentence on 14 July 2023 (“the July hearing”). As noted above, at that time, Mr Welsh was in custody serving a period of imprisonment imposed by a Magistrate for offending that was unrelated to the present charges. The non-parole period for that offending expired on 25 August 2023 (after the date of the first sentence hearing listing).

24․At the outset of the July hearing, Mr Welsh’s counsel informed the court that Mr Welsh had been accepted into the Glen Program, which is a twelve-week residential rehabilitation program at the Glen Centre on the Central Coast of New South Wales. Mr Welsh’s counsel sought an adjournment to afford Mr Welsh an opportunity to complete that program prior to his substantive sentence proceedings. Given Mr Welsh had not yet been granted parole for the offences for which he was in custody, and would not be able to complete the program unless parole was granted, on 3 August 2023 I made orders for an adjournment and stood the sentence proceedings over to 24 August 2023 (later moved to 23 August 2023). This course was not opposed by the prosecution. I ordered that the parties notify the Court as to whether Mr Welsh was granted parole within 24 hours of the Sentence Administration Board making that decision: DPP v Welsh [2023] ACTSC 209 at [13]-[14].

25․Mr Welsh was granted parole on 22 August 2023, to commence on 28 August 2023. This parole was subject to a condition that upon his release, Mr Welsh immediately attend and complete the Glen Program. At the hearing on 23 August 2023, with the consent of the prosecution, I granted Mr Welsh bail in respect of the present offences and further adjourned the proceedings to permit him to participate in the Glen Program.

26․I listed the matter before myself on 10 November 2023 to receive an update. At that hearing, Mr Welsh’s 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. This material was highly positive. It advised that Mr Welsh had actively engaged with the Program, including by seeking to identify and address the underlying issues associated with his addiction. The material also indicated that Mr Welsh had been accepted into a secondary Transition Program, involving weekly counselling and specialised case management.

27․In light of this material, counsel for Mr Welsh sought either a further adjournment or the imposition of a suspended sentence so as to enable Mr Welsh to complete the Program. The prosecutor submitted that the preferable course of action would be to adjourn the sentence proceedings for another six months, rather than to impose a suspended sentence at that time.

28․I acceded to the prosecution’s submission and adjourned the substantive proceedings to enable Mr Welsh to complete the Program prior to imposing sentence: DPP v Welsh (No 2) at [21]. In accordance with the prosecutor’s submissions, I did so through the imposition of a Griffiths remand (that is, under the general power of the Court to adjourn proceedings) rather than under s 27 of the Crimes (Sentencing) Act 2005 (ACT): see DPP v Welsh (No 2) at [13] – [20].

Engagement with the rehabilitation program

29․As noted above, Mr Welsh completed the initial 3-month program at the Glen. The material provided by the Glen after this period has also been highly positive and indicates that he has effectively engaged with the Program.

30․Mr Welsh then completed the Transition Program. A letter from the Glen dated 8 January 2024 confirmed that as part of his transition, Mr Welsh actively worked toward securing housing, employment and ongoing counselling in the ACT as well as engaging with Aboriginal community organisations and drug and alcohol service providers. The Glen noted that Mr Welsh’s exit date from the Transition Program depended on the outcome of his Court proceedings. It indicated that after exiting the Transition Program, he would join the Glen’s outreach program which offers continued support and guidance through weekly Zoom meetings, therapeutic worker calls and monthly gatherings.

31․Mr Welsh provided a Certificate of Successful Completion of the Alcohol and Other Drugs Rehabilitation program at the Glen Centre, which was dated 26 January 2024.

32․Mr Welsh also tendered a letter from Winnunga Nimmityjah Aboriginal Health and Community Services (Winnunga) dated 18 January 2024, and a letter from Karralika Programs, who provide alcohol and drug services, dated 17 January 2024. The letter from Winnunga confirms that Mr Welsh has been a long-term client of Winnunga. It also confirms he engaged with Winnunga on several occasions to put in place supports following his exit from the Glen, such as counselling (including drug and alcohol counselling), groups including Men’s Group, Cooking Group, Wellbeing Group, and volunteering. The letter indicated that these supports would give Mr Welsh “much-needed support and focus with the stability of his mental health, [and] give him insight into his recidivism and desistance”. The letter from Karralika Programs confirmed that they offer specialist drug and alcohol counselling and that they have spoken to Mr Welsh about his support needs.

Sentencing considerations

Nature and circumstances of the offences (s 33(1)(a) of the Crimes (Sentencing) Act)

33․As Mr Welsh’s counsel accepted, the offences are each serious examples of the offences charged.

34․Counts 1, 3 and 5 each occurred in residential homes, in the early hours of the morning of Friday 10 June 2022, at a time when it was likely that people would be at home asleep. In respect of both Count 1 and Count 5, there is evidence that the victims were asleep and in a vulnerable state at the time of the offending.

35․The conduct comprising Counts 1 and 5 was aggravated due to the presence of two other offenders: R v Crawford (No 1) [2020] ACTSC 245 at [35]. In respect of Count 1, one of the other offenders was armed with a handgun.

36․In relation to Count 1, no force was used to enter the house. I accept the prosecution submission that there “must have” been some degree of planning involved in the offence, as the three persons who attended the address were wearing clothing “designed to conceal their identity” and one of the offenders was in the possession of a handgun. However, there is no evidence of any extensive planning.

37․In relation to Count 3, entry was gained by using a tool to cut open a security screen door. I accept the prosecution’s submission that there was also a degree of planning, albeit not extensive planning, involved in this offence.

38․The offending that comprised Count 5 involved the use of significant force to break the locking mechanism which caused damage to the door frame (which was been charged separately).

39․Counts 4 and 6 involved the taking of motor vehicles from the premises involved in Counts 3 and 5. Factors relevant to the objective seriousness of these offences include the degree of planning; the motive for the offence, including whether it was undertaken to facilitate another offence; whether the taking caused damage to the vehicle; and whether the vehicle was recovered: R v Rosewarne [2021] ACTSC 217 at [123]. I note that with respect to Count 6, damage was occasioned to the vehicle that was taken. I have already outlined my findings concerning the degree of planning involved.

40․Each of these offences was committed in breach of conditional liberty.

Remorse (s 33(1)(w) of the Crimes (Sentencing) Act)

41․Mr Welsh has expressed regret at the negative impact of his offending on the lives of others, including the victims, the community, and his family. To the pre-sentence report authors, he has reflected that his actions were contrary to the values he was brought up with, and attributed them to the effects of drug use (in that he was substance-affected, acting impulsively and attempting to financially support his drug use). He has also stated that he wanted to apologise and give back to the victims. I accept that the Mr Welsh is remorseful for his offending.

Guilty plea (s 33(1)(j) of the Crimes (Sentencing) Act)

42․Mr Welsh originally entered pleas of not guilty to the charges before the court. The trial was set down for hearing on 22 May 2023, before Mr Welsh pleaded guilty to the charges on 11 May 2023. I will afford a discount of 10% for Mr Welsh’s late plea of guilty.

Current sentencing practice (s 33(1)(za) of the Crimes (Sentencing) Act)

43․I am required to have regard to “current sentencing practice” pursuant to ss 33(1)(za) of the Crimes (Sentencing) Act 2005. The prosecution has provided me with a range of cases involved offending said to be comparable to the various offences for the which Mr Welsh is before the Court. Cases concerning the charges of aggravated burglary include R v Watson [2022] ACTSC 95; R v Andy [2022] ACTSC 54; R v Horne [2017] ACTSC 36; R v Hagen [2022] ACTSC 362; DPP v Fisher [2023] ACTSC 29; R v Catanzariti [2020] ACTSC 326; R v Knight [2021] ACTSC 165; R v Lutze [2020] ACTSC 121; R v Minnis [2014] ACTSC 268. The prosecution also drew my attention to R v Moore [2021] ACTSC 333 in relation to Count 3 (burglary); R v Lovelock [2020] ACTSC 161 in relation to Counts 4 and 6 (take motor vehicle without consent); and R v Dugdale [2017] ACTSC 203 in relation to Count 7 (drive motor vehicle without consent). Other relevant comparative cases for the offending are collected in my decision in DPP v Makoi (No 3) [2023] ACTSC 337.

44․In determining the sentence to be imposed on Mr Welsh, I have taken into account the sentences imposed in these cases. I have however, borne in mind the limitations of these decisions, which concern offending and offenders with different objective and subjective characteristics to the present case. I have also borne in mind that sentences imposed in comparative cases illustrate, but do not define, the possible range of sentences available, and cannot cap the sentencing discretion: R v Pham [2015] HCA 39; 256 CLR 550 at 560 [29]; DPP v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at 445 [51] – [53].

Determination

The sentences to be imposed

45․There can be no question that the offences that were committed by Mr Welsh are very serious. As Refshauge J noted in R v Po’oi [2021] ACTSC 151 at [49], “a home is a place of security and safety”. Burglaries violate the safety which people are entitled to feel in their homes.

46․The Victim Impact Statements speak of precisely these consequences. One victim described suffering from “emotional shock, fear of recurrence” and nightmares following the offending. He now wakes at 4:30am most mornings and listens intensely for outside noises out of a fear of a repeat occurrence. He and his wife ruminate on what might have happened if the offenders were challenged during the break in. His son, whose car was stolen, feels that he has been violated, and has lost much of the passion for what was previously his “pride and joy”.

47․The other victim similarly spoke of the “shock, anger and frustration” that he has felt following the offending. He described the terror of “being awoken by the sound of your door being kicked in and hearing a vehicle speed off into the distance”. He said that members of his household are now “afraid to remain in the house unaccompanied and terrified of any noise outside”.  His car, which he carefully tended to each week, was returned to him covered in mud, and containing cigarette ash and broken glass. He has found the task of cleaning the car to be particularly distressing. Both victims described the significant financial impact of the offending (such as the replacement of locks, vehicle keys and the like).

48․The impact of the offending on the victims, and on the community as a whole cannot be overlooked. It is for this reason that as I noted at the outset of these reasons, generally speaking, offending of the present nature will require the imposition of a substantial period of full time period of custody. However, this is not an absolute rule.

49․One of the victims gracefully concluded in his Victim Impact Statement that:

So far the actions of the defendant have been to the detriment of the community without care for the damage inflicted upon the victims and their families. I would hope that in the future he may instead look towards creating a positive impact for the wider society and community however I remain cautious until this is seen.

50․Since the victim wrote this statement, Mr Welsh has taken full advantage of the opportunity that has been given to him to engage in rehabilitation so that he can create a positive impact for his family and the wider community as hoped by the victim. After leaving the Glen, Mr Welsh successfully obtained stable employment and accommodation, has ceased his drug use and has taken proactive steps to engage with several support services. A letter provided by Karralika Programs confirms that Mr Welsh is “very committed to his recovery” and that he has been “rebuilding his life with a greater understanding of himself and others”. I am satisfied that Mr Welsh has good prospects of rehabilitation. An imposition of a full-time custodial sentence would significantly impede Mr Welsh’s progress toward that rehabilitation.

51․Mr Welsh has had to overcome a number of hurdles in his life, including a troubled relationship with his father in his childhood, drug addiction in his early adult years and grief caused by the loss of his sister. However, it is also clear that there are strengths in his life, and his character, which are assisting him to overcome this history. Some of those strengths include his close relationship with his mother and his younger sister, his commitment to his own recovery, and his cultural connections. It is apparent that the program at the Glen has equipped Mr Welsh to access these strengths effectively.

52․The seriousness of the offending requires the imposition of sentences of imprisonment. However, in these exceptional circumstances, where Mr Welsh has effectively rehabilitated himself over the past 10 months, I am satisfied that it is appropriate to suspend those terms.

53․In determining the length of the sentences to be imposed, I will take account of the following matters.

54․First, the offence of theft (SCCAN2023/34), contrary to s 308 of the Criminal Code 2002 (ACT) will be taken into account under Part 4.4 and s 57 of the Crimes (Sentencing) Act 2005 (ACT) in imposing the sentence for aggravated burglary (CC2022/6049).

55․Second, Mr Welsh has been subject to stringent bail conditions for the past 10 months.  He has also been on parole. Over that time, he has been fully aware that any contravention of his bail conditions would result in his immediate return to full time custody. In effect, if not in law, he has been subject to a suspended sentence during the whole of this period. I will take into account this period of supervision in determining the length of the sentences to be imposed.

56․Third, Mr Welsh has served 32 days in custody exclusively referable to these offences. He has also served 267 days in custody with respect to this offending and other unrelated offending. I will backdate the sentences to be imposed by 32 days to take into account the time served that is solely referrable to the present offending. The custody attributable to the present offending and other offending has previously been taken into account by Magistrate Theakston when sentencing Mr Welsh in relation to the unrelated offending. Whilst I will not reduce the terms to take this period into account, I have borne in mind this lengthy period of custody, which provides some context for Mr Welsh’s decision to engage in rehabilitation.

57․Finally, I will take into account principles of totality in determining the overall length of the term to be imposed, noting that whilst the offending occurred within a 24 hour period, the offending occurred in different homes with different victims: O’Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 at [26].

58․I will limit the period of supervision under the suspended sentences to the period considered necessary by ACT Corrective Services. Mr Welsh is currently subject to parole supervision. In view of this, it is open to Corrective Services to determine that no additional supervision is required. This will be a matter for Corrective Services to consider.

Breach of the ICO

59․As noted above, at the time of each of the present offences, Mr Welsh was subject to an Intensive Correction Order (ICO) imposed by Special Magistrate Hopkins on 16 July 2021 in respect of various offences.

60․Mr Welsh’s entry of pleas of guilty to the present offences render him in breach of that ICO. In accordance with s 65(2) of the Crimes (Sentence Administration) Act 2005 (ACT) the Court is required to cancel the ICO unless doing so would not be in the interests of justice. Noting that the ICO expired on 15 January 2023, the prosecution submitted that it may not be in the interests of justice to cancel the ICO. I agree. Accordingly, I have taken no action in respect of the breach of the ICO. As outlined above, I have taken into account the fact that the offending occurred in breach of conditional liberty when determining the sentences to be imposed for the present offences.

Disqualification period

61․The automatic licence disqualification period for a repeat offender who has driven while disqualified contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) is 24 months or, if the court orders a longer period, the longer period: see s 32(5)(b) of the Driver Licensing Act. I will make no order that affects the automatic period of disqualification, noting the rehabilitation Mr Welsh has embarked upon and that the imposition of a longer disqualification period would adversely affect Mr Welsh’s planning for his new business.

62․At the time that the proceedings were listed for sentence today, Mr Welsh’s counsel raised s 65 of the Road Transport (General) Act 1999 (ACT) with the Court and invited me to consider reducing the period of disqualification pursuant to that provision. He had not previously indicated any reliance on this provision, nor had he notified the Court or his opponent of this application before it was made.

63․Section 65 of the Road Transport (General) Act permits a Court to order that an offender be disqualified “until further order of the Court”: see, for example, R v Livas (No 2) [2020] ACTSC 116 at [62]. It is not obvious how this provision could enable the Court to reduce the automatic disqualification period under s 32(1)(a). Mr Welsh’s counsel did not provide any authority, or extrinsic material, in support of his construction.

64․I do not consider that s 65 provides any power to reduce the automatic disqualification period that applies by virtue of s 32(1)(a). The “disqualification” which may be set aside by the Court under s 65(3) is clearly limited to the indefinite disqualification which the court orders under s 65(2): see Explanatory Statement to the Road Transport (General) Bill 1999 (ACT) at 18 (noting that the reference to s 66 in the Explanatory Statement concerns what now appears as s 65 in the Road Transport (General) Act). In any event, as the prosecutor observed, if, contrary to my conclusion, it is open for a shorter period of disqualification to be ordered under s 65, an application for such an order can be made at any time. Accordingly, if Mr Welsh, after being provided with any further legal advice, seeks to make a further application for a reduction of the disqualification period, there is nothing in these reasons that would prohibit him from doing so.

Conclusion

65․As the prosecutor submitted, this is “one of those rare stories in the criminal justice system which an offender promises to change their life, and then does”. It is a testament to Mr Welsh’s strength of character that he has been able to do this. The role of the Glen program in assisting Mr Welsh must also be acknowledged. Culturally sensitive programs such as the Glen can be of immense importance: see Vanessa Edwige and Dr Paul Gray, Significance of Culture to Wellbeing Healing and Rehabilitation (Report, Public Defenders (NSW), The Bugmy Bar Book Project, June 2021), 19 – 40. As that report notes, “strong cultural supports and programs in communities that help facilitate the building of healthy communities ‘will facilitate the successful reintegration of Indigenous offenders once they leave custody, while also reducing the likelihood of Indigenous people commencing a criminal trajectory’” (at 32 [130]). As Mr Welsh explained, it was “the whole experience” of the Glen program which has been so critical to his rehabilitation.

66․Mr Welsh’s rehabilitative journey is not over. Mr Welsh will need to work towards his continued rehabilitation. As I have explained to him, the suspended sentences that I will impose are custodial sentences. The commission of any further offences will constitute a breach of these sentences, and would be likely to result in the imposition of full-time custody. However, in view of the past ten months, the Court can have confidence that Mr Welsh, together with the support of his family and services such as Winnunga and Karralika, will have the strength to continue on this path.

Orders

67․For the above reasons, I impose the following sentences (following the application of a ten percent discount for Mr Welsh’s guilty plea):

(1)For the offence of aggravated burglary (CC2022/6049), Mr Welsh is convicted and sentenced to a period of imprisonment of 1 year and 18 days commencing on 9 October 2024 and expiring on 26 October 2025.

(2)For the offence of burglary (SCCAN2023/35), Mr Welsh is convicted and sentenced to a period of imprisonment of 10 months and 24 days commencing on 12 December 2024 and expiring on 4 November 2025.

(3)For the offence of take motor vehicle without consent (CC2022/6053), Mr Welsh is convicted and sentenced to a period of imprisonment of 1 month and 24 days commencing on 12 December 2024 and expiring on 4 February 2025.

(4)For the offence of aggravated burglary (CC2022/6054), Mr Welsh is convicted and sentenced to a period of imprisonment of 1 year 4 months and 5  days commencing on 5 May 2024 and expiring on 9 September 2025.

(5)For the offence of take motor vehicle without consent (SCCAN2023/36), Mr Welsh is convicted and sentenced to a period of imprisonment of 1 month and 24 days commencing on 5 May 2024 and expiring on 28 June 2024.

(6)For the offence of drive motor vehicle without consent (CC2022/6057), Mr Welsh is convicted and sentenced to a period of imprisonment of 1 month and 24 days commencing on 5 May 2024 and expiring on 28 June 2024.

(7)For the offence of damage property (CC2022/6056), Mr Welsh is convicted and sentenced to a period of imprisonment of 27 days commencing on 12 December 2024 and expiring on 7 January 2025.

(8)For the offence of drive while disqualified as a repeat offender (CC2022/6058), Mr Welsh is convicted and sentenced to a period of imprisonment of 27 days commencing on 5 May 2024 and expiring on 31 May 2024.

(9)For the offence of drive motor vehicle with not properly issued numberplates (CC2022/605), Mr Welsh is convicted and sentenced to a period of imprisonment of 27 days commencing on 5 May 2024 and expiring on 31 May 2024.

(10)The overall sentence is a term of imprisonment of one year and six months, commencing on 5 May 2024 and ending on 4 November 2025.

(11)The overall term of imprisonment is to be wholly suspended with immediate effect, on the condition that Mr Welsh enter into a Good Behaviour Order from the giving of the undertaking until 4 November 2025, subject to the core conditions under s 86 of the Crimes (Sentence Administration) Act 2005 (ACT). Supervision will only be for the period deemed necessary by ACT Corrective Services.

Addendum

68․On 1 August 2024, the sentence imposed for drive motor vehicle with not properly issued numberplates (CC2022/6059) was reopened pursuant to s 61 of the Crimes (Sentencing) Act 2005 (ACT). Order 9 was vacated and in lieu thereof, the following order was made:

(9)That for the offence of drive motor vehicle with not properly issued numberplates (CC2022/6059), Mr Welsh be resentenced to a $20 fine to be paid within 6 months, pursuant to s 14 of the Crimes (Sentencing) Act 2005 (ACT).

I certify that the preceding sixty-eight [68] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Baker

Associate:

Date: 16 August 2024