DPP v Hagen (No 2)

[2023] ACTSC 386

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Hagen (No 2)

Citation: 

[2023] ACTSC 386

Hearing Date: 

12 December 2023

Decision Date: 

12 December 2023

Before:

Baker J

Decision: 

See [29].

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – breach of Good Behaviour Order – offender has engaged in significant rehabilitation since breach –breach offence was relatively minor – where offender has served significant time in custody as a result of breach – Good Behaviour Order cancelled – offender resentenced under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) – further suspended sentence and Good Behaviour Order imposed.

Legislation Cited: 

Crimes (Sentence Administration) Act 2005 (ACT), ss 86, 110, 116

Crimes Act 1900 (ACT), s 24

Crimes Act 1914 (Cth), s 3LA

Criminal Code 2002 (ACT), ss 45A, 312

Cases Cited: 

R v Curtis (No 2) [2016] ACTSC 34

R v Hagen [2022] ACTSC 362; 374 FLR 260

R v Ogilvie (No 2) [2016] ACTSC 265

Saga v Reid [2010] ACTSC 59

Parties: 

Director of Public Prosecutions ( Crown)

Trinity Hagen ( Offender)

Representation: 

Counsel

C Daly ( DPP)

S Baker-Goldsmith ( Offender)

Solicitors

ACT Director of Public Prosecutions

Creagh Solicitors ( Offender)

File Number:

SCC 236 of 2021

BAKER J:      

Introduction

1․The appellant comes before the Court having breached the conditions of a suspended sentence and a Good Behaviour Order (GBO) which I imposed on 22 December 2022: R v Hagen [2022] ACTSC 362; 374 FLR 260.

2․As a result of this breach, the existing suspended sentence and GBO must be cancelled. The Court must now consider whether to impose the suspended sentence, or to resentence the offender.

3․The prosecution accepts that in the particular circumstances of the present case, I should resentence the offender rather than imposing the suspended sentence. The offender’s counsel submits that any further sentence imposed should not require the offender to serve any further period of full-time custody. The prosecution does not oppose this course.

4․I agree that it is appropriate to impose a sentence of imprisonment which is to be suspended from today, for the following reasons.

Background

The index offence

5․The offending involved in the index offence is set out in R v Hagen at [6] – [12].

6․In brief, at about 2:00am on 31 July 2021, the offender attended the house of her son’s ex-partner (the victim), purportedly to retrieve her son’s belongings. She was accompanied by two of her other children and two other people. Upon arrival, other member of the group began assaulting the victim outside, including punching and kicking her (including to her head), burning her hair with a lighter, and taking a gold necklace and iPhone from the victim. The victim suffered welts to her forehead and neck, small cuts to her ear, torso and hand, and singed hair strands.

7․While this occurred, the offender entered the victim’s bedroom and began packing items into bags to take. This included several items belonging to the victim, comprising a bag containing the victim’s personal documents, two other bags, and items from the victim’s wardrobe. The offender later agreed to return the items that belonged to the victim. There is no evidence that the offender saw the assault occurring at any time. After the incident, the offender sent an email to her son saying that there was “a commotion… but once I got home I rang the police n let them know that I attended [the victim’s] place n that all I did was simply pick up my son’s clothes n jewellery”.

8․The offender pleaded guilty to one count of aggravated burglary, contrary to s 312 of the Criminal Code 2002 (ACT), and one count of assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act 1900 (ACT). Both counts were offences of joint commission by virtue of s 45A of the Criminal Code.

9․On 22 December 2022, I convicted the offender of the offence of aggravated burglary and the offence of assault occasioning actual bodily harm. On the charge of aggravated burglary, I sentenced the offender to imprisonment for 16 months. On the charge of assault occasioning actual bodily harm, I sentenced the offender to imprisonment for 2 months and 2 weeks, to be served wholly concurrently with the sentence for aggravated burglary (and backdated to take into account time already spent in custody). The sentence on the charge of aggravated burglary was suspended from 22 December 2022, the day of sentence, upon the offender entering into a Good Behaviour Order under the Crimes (Sentence Administration) Act 2005 (ACT) until 6 September 2023.

The breach offence

10․On 11 January 2023, the offender committed an offence of unlawful possession of stolen property (CC2023/7624) (the breach offence).

11․The offender attended the Optical Prescription spectacle Makers (OPSM) store in Gungahlin with a companion (the co-offender). The offender asked the staff about booking an eye test, but would not provide her personal details and eventually said “don’t worry about it” before leaving the store with the co-offender. After they left, staff at the store realised that four pairs of Prada sunglasses were missing. The co-offender later admitted to committing theft of the Prada sunglasses belonging to OPSM.

12․On 1 February 2023, police executed a search warrant on the offender’s residence while the offender and the co-offender were both present. Pursuant to an order made under s 3LA of the Crimes Act 1914 (Cth), the accused apparently provided her mobile phone to police. Police identified several photographs of Prada sunglasses, matching the stolen sunglasses, on the accused's phone. In the course of her exchanges with police, the accused variously denied knowing where the glasses depicted in the photographs were and also claimed that the sunglasses had been stolen from her house.

13․The breach offence was subsequently proved at a hearing in the Magistrates Court. On 12 September 2023, the offender was sentenced to a term of imprisonment of one month and 15 days, backdated to commence on 2 February 2023 (the date of her arrest) and to conclude on 16 March 2023.

Further subjective evidence

14․The subjective circumstances of the offender are summarised in a Pre-Sentence Report (PSR) dated 30 November 2023, prepared by ACT Corrective Services.

15․The offender also provided the following material to the Court:

(a)Psychologist Report from Peter Wat, dated 30 November 2023

(b)A Course Completion Certificate for “Family Skills, Navigating Parenting”

(c)An email from Relationships Australia;

(d)A letter from Access Registered Training;

(e)Training Statements of Attainment for courses in Crystalline Silica Prevention; Certificate III in Hospitality; Use Hygienic Practice for Food Safety; Responsible Service of Alcohol; Prepare and Serve Espresso; and Participate in in Safe Work Practices.

(f)A Certificate of Achievement from ACT Corrections;

(g)A letter in support from Prisoner’s Aid;

(h)A letter in support from Ms Katrina Duffy; and

(i)A letter to the Court written by the offender.

Legislation

16․Section 110 of the Crimes (Sentence Administration) Act provides:

110Cancellation of good behaviour order with suspended sentence order

(1)This section applies if—

(a)an offender’s good behaviour order was made under the Crimes (Sentencing) Act 2005, section 12 (3) (Suspended sentences) on the offender’s conviction for an offence; and

(b)a court is satisfied the offender has breached any of the offender’s good behaviour obligations.

(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.

(3)If the offender has given security under the good behaviour order, the court may also—

(a)order payment of the security to be enforced; and

(b)order the good behaviour order to be cancelled on payment of the security (if the term of the order has not already ended).

(4)The Crimes (Sentencing) Act 2005 applies to the re-sentencing in the same way that it applies to the sentencing of an offender on conviction for the offence.

Example

The Magistrates Court convicted Desmond of an offence.  The court sentenced Desmond to imprisonment for 6 months for the offence and made a suspended sentence order for the entire sentence of imprisonment.  The court also made a good behaviour order for the 6-month period.  Desmond breaches the order.  In re-sentencing Desmond, the court may impose a sentence of imprisonment to be served by intensive correction.

(5)To remove any doubt, an offender re-sentenced by a court under this section has the same right of appeal as the offender would have had if sentenced by the court on being convicted of the offence.

17․In the present case, the good behaviour order expired on 6 September 2023. Section 116 of the Crimes (Sentence Administration) Act provides:

116Good behaviour—court powers after end of order

A court may act under this chapter in relation to anything arising during the term of a good behaviour order, even if the term of the order has ended.

Determination

18․It is common ground between the parties that ss 110 and 116 of the Crimes (Sentence Administration) Act have the effect that the Court is obliged to cancel the GBO that was originally imposed, and to then either impose the suspended sentence attached to that GBO or resentence the offender for the offence.

19․Both parties also agreed that the following considerations, outlined by the prosecution in helpful written submissions, are relevant to the consideration of whether to impose the suspended sentence, or to resentence:

(a)The proportion of the good behaviour order served.

The offender was only 20 days into the good behaviour order. Approximately 8% of the order had been served before the re-offending.

(b)Any rehabilitation attained prior to the breaching conduct.

There is no evidence of rehabilitation obtained given the short window between sentence and re-offending. There is evidence of rehabilitation undertaken while the offender was in custody, and following her release on bail on 27 September 2023.

(c)The nature of the offence which breached the order, including whether it is of similar conduct.

The breach matter was an offence of dishonesty, whereas the aggravated burglary was particularised as intent to harm (rather than intent to steal).

(d)The relative seriousness of the offence causing the breach (whether imposing the sentence would be disproportional to the gravity of the breach).

The maximum penalty for unlawful possession of stolen property is 6 months imprisonment, a fine of $8000, or both. Its relative seriousness to the Supreme Court matters is very low.

(e)The actual facts of the matter for which the offender was first sentenced.

These are addressed in R v Hagen and are summarised at [5] – [9] above. The aggravated burglary was considered to be ‘moderately serious’: see R vHagen at [25].

(f)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.

The prosecution does not submit the breach offence demonstrates any intention to disregard the obligation to be of good behaviour or to abandon any intention to be of good behaviour. I do not find that there was any such intention.

(g)Whether the offender had received any warnings with respect to breaches.

There is no evidence of any warnings, given the short window between sentence and re-offending.

(h)The level of understanding of the offender of her obligations under the terms of the order and the consequences of a breach.

I am satisfied that the offender understood the terms of the good behaviour order and the consequences of breach.

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

The resources devoted to the offender previously are not particularly remarkable. The conditions of the good behaviour order included supervision from the Director-General. 

20․As the prosecution submitted, where there is a breach of a suspended sentence, the court should ordinarily impose a somewhat more severe punishment, to recognise that the breach of a good behaviour order demonstrates that the trust reposed in the offender has been eroded: R v Ogilvie (No 2) [2016] ACTSC 265 at [30]. A resentence upon a breach of a suspended sentence must also take into account the need to deter other persons from breaching suspended sentences. There is also a need to ensure ongoing confidence in the administration of criminal justice, which may be undermined if action is not taken by the Court upon a breach of a suspended sentence: Saga v Reid [2010] ACTSC 59 at [99] – [101]. However, in some circumstances, it may be appropriate for the court to impose the same sentence that was imposed at first instance: R v Curtis (No 2) [2016] ACTSC 34 at [16].

21․The offender’s counsel submitted that any further sentence imposed should not require the offender to serve any further period of full-time custody. In particular, the offender’s counsel noted that:

(a)The breach offending was of a very different character to the original offending, and the objective seriousness of the breach offending is low;

(b)Other than the breach offending, the offender has been of good behaviour, and has completed three-quarters of the suspended sentence without any further breaches, in particular, in the period of time after she was released on bail; and

(c)The offender has engaged in significant rehabilitative efforts after the breach offence, including but not limited to undertaking education and training courses while in custody; commencing counselling while in custody and maintaining this treatment after returning to the community; and seeking out a mental health plan to obtain psychological treatment for her longstanding trauma issues which previously motivated her offending.

22․The prosecution did not oppose the course proposed by the offender’s counsel.

23․I agree that this is the most appropriate course to take.

24․In addition to the matters considered at [19] above, in determining the sentence to be imposed, I will take into account the fact that the offender served 195 days in custody on remand, whilst bail refused for the breach offence, which was not attributed to the breach offence in the sentence imposed by the Magistrate.

25․In a letter which the offender provided to the Magistrates Court at the time of sentencing for the breach offence, the offender powerfully described the positive effect that this period of custody had upon her. She explained that during this period, she has acknowledged the need for help and the need to process her childhood. She spoke about her deep disappointment about being unable to see her children whilst in custody. She explained that her time in custody has been “the reset” that she needed to realise that time with her loved ones is precious and that this is what she really values in her life. She also expressed remorse for her offending and a commitment to changing her behaviour on release. The material before the Magistrates Court, which included various references from Canberra Health Services, Prisoners Aid and Access Recognised Training supported the offender’s commitment to her rehabilitation.

26․The offender has provided a further letter to this Court in these breach proceedings in which she confirms this commitment.

27․As noted at [21(c)] above, since the offender was released on bail, she has amply demonstrated her continued commitment to her rehabilitation. On 3 November 2023 and 10 November 2023, she appeared before me on an application for a variation of her bail, at which time she described the steps that she was taking to obtain support in her rehabilitative path. Today, I was informed by the offender’s counsel that the offender is in the process of finalising a mental health plan with her GP. It is clear to me that the offender is taking a proactive approach to her rehabilitation.

28․In these circumstances, the order that I propose to make on the cancellation of the GBO is to impose a new sentence of imprisonment of 10 months, to be backdated by 195 days, so as to take into account the period of time that she has spent in custody on remand between 17 March 2023 and 27 September 2023, which was not taken into account in the sentence imposed by the Magistrate for the breach offence. I will suspend the remainder of the sentence from today, upon the offender entering into a GBO.

Orders

29․For the above reasons, I make the following orders:

(1)I cancel the good behaviour order imposed on 22 December 2022 in respect of the offence of aggravated burglary (CC2021/8164).

(2)I re-sentence the offender for the offence of aggravated burglary (CC2021/8164) to a sentence of imprisonment for 10 months, backdated to commence on 1 June 2023 and to expire on 31 March 2024.

(3)The sentence of imprisonment is to be suspended with immediate effect on condition that the offender enter a good behaviour order for a period from the giving of the undertaking until 31 March 2024, subject to the core conditions under s 86 of the Crimes (Sentence Administration) Act 2005 (ACT) and the following additional conditions:

(a)That the offender report to ACT Corrections within 48 hours;

(b)For the period of the good behaviour order or such shorter period as determined by the director-general, that the offender be on probation subject to the supervision of the Director-General and obey all reasonable directions of that person, including as to undertaking any psychiatric or psychological assessment and participating in any program of treatment or rehabilitation.

I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Baker

Associate:

Date: 12 December 2023