DPP v Welsh
[2023] ACTSC 209
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Welsh |
Citation: | [2023] ACTSC 209 |
Hearing Date: | 14 July 2023 |
Decision Date: | 3 August 2023 |
Before: | Baker J |
Decision: | (1) The parties are to notify the Court as to whether the offender is granted parole within 24 hours of the Sentence Administration Board making that decision. (2) The sentence proceedings are adjourned to 24 August 2023 at 9am. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offender accepted into residential rehabilitation program – whether adjournment of sentence until after completion of program is appropriate – sentence adjourned until parole decision is made – potential for further adjournment. |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 120 Road Transport (Vehicle Registration) Act 1999 (ACT) s 22(1)(a) |
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 contrary to s 312 of the Criminal Code 2002 (ACT).
(b)Count 3 (SCCAN2023/35): burglary by virtue of s 45A, contrary to s 311 of the Criminal Code 2002 (ACT).
(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).
(d)Count 5 (CC2022/6054): aggravated burglary by virtue of s 45A contrary to s 312 of the Criminal Code 2002 (ACT).
(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).
(f)Count 7 (CC2022/6057): drive motor vehicle without consent, contrary to s 318 of the Criminal Code 2002 (ACT).
2․These offences each 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. Entry was gained in the third burglary (Count 5) when one of the offenders kicked open an external door to the premises.
3․This matter came before me for sentence on 14 July 2023. On that day, the prosecution identified Count 1 as a “principal offence” for the purposes of taking additional offences into account: see Part 4.4 and s 57 of the Crimes (Sentencing) Act 2005 (ACT). The prosecution handed up a list of additional offences identifying Count 2 (SCCAN2023/34), theft by virtue of s 45A contrary to s 308 of the Criminal Code 2002 committed on 10 July 2022, as a charge to be taken into account in the course of making a sentence related order for the principal offence. The list of additional offences dated 10 May 2023 was signed by the offender in accordance with s 56(1)(a) of the Crimes (Sentencing) Act.
4․An additional 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). Those three charges, to be dealt with by way of sentence before this court, are for the following offences which were committed on 21 June 2022:
(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).
(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).
5․The offender is currently in custody for offending unrelated to the charges before me, serving a period of imprisonment with a non-parole period which is due to expire on 25 August 2023.
6․At the outset of the proceedings for sentence, the offender’s counsel informed the Court that the offender has been accepted for a 12-week program at The Glen Rehabilitation Centre (“the Program”), a full-time drug and alcohol rehabilitative program in New South Wales, commencing 25 August 2023. Counsel for the offender sought an adjournment of the sentencing proceedings to enable the offender to complete this Program before he is sentenced.
7․The prosecution did not seek to be heard on whether the present sentence proceedings should be adjourned to allow further rehabilitation prior to sentencing. The prosecutor acknowledged that rehabilitation is important, and that rehabilitation “could be effected through the successful completion of a lengthy residential rehabilitation program”. Ultimately, the prosecutor submitted that the issue was a matter for the Court.
Determination
8․The present offences are very serious. The evidence before me includes Victim Impact Statements from two of the victims of these offences. These statements speak of the considerable impact of the offending on the victims, and the emotional distress that has been caused by the offender’s actions.
9․As counsel for the offender acknowledged, if the offender does not complete the Program, either because he is not ultimately accepted into the Program or because he does not comply with the stringent conditions of the Program, a sentence comprised of a period of further full-time imprisonment will be inevitable.
10․In view of the seriousness of the offences, completion of the Program will not guarantee that the offender will receive a sentence other than full time imprisonment. However, successful completion of the Program will be highly relevant to the Court’s assessment of the offender’s long-term prospects of rehabilitation.
11․In these circumstances, I will afford the offender an adjournment, so as to enable the Sentence Administration Board (“SAB”) to determine whether to grant the offender parole, the grant of which would permit the offender to undertake the Program.
12․My decision should not in any way be seen as pre-empting the decision of the SAB as to whether the offender should be granted parole. Whether parole orders are made at the conclusion of a detainee’s non-parole period is at the discretion of the SAB: s 120 of the Crimes (Sentence Administration) Act 2005 (ACT). The SAB may only make a parole order for an offender if it considers that it is “appropriate” to do so, at the conclusion of the offender’s non-parole period: s 120 of the Crimes (Sentence Administration) Act. In determining whether to grant parole, the SAB is required to consider a number of matters set out in s 120(2) of the Crimes (Sentence Administration) Act, including the offender’s antecedents, the offender’s conduct while serving the term of imprisonment, and whether parole is likely to assist the offender to adjust to lawful community life.
13․I will adjourn the sentence proceedings to 24 August 2023 to enable the SAB to determine whether the offender will be granted parole. If the offender is not able to commence the Program, either because parole is not granted or for any other reason, I will sentence the offender at that time. If parole is granted and the offender is accepted into the Program, a further adjournment may be granted to enable the offender to complete the Program.
Orders
14․The orders of the Court are:
(1)The parties are to notify the Court as to whether the offender is granted parole within 24 hours of the Sentence Administration Board making that decision.
(2)The sentence proceedings are adjourned to 24 August 2023 at 9am.
| I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Baker Associate: A Bucci Date: 3 August 2023 |
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Amendments
| 7 August 2023 | Replace “Aboriginal Legal Service” with “James Horniblow” on the cover page of this judgment where Solicitors for the parties are listed. | Cover page |
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