James v Lucas
[2018] ACTMC 30
•30 November 2018
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | James v Lucas |
Citation: | [2018] ACTMC 30 |
Hearing Dates: | 24 October 2018 |
DecisionDate: | 30 November 2018 |
Before: | Special Magistrate Hunter OAM |
Decision: | See paragraphs [43]-[49] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – sentence – driving offences – conditional liberty – offences committed while defendant on parole – totality – re-set non-parole period – submission for short non-parole period |
Legislation Cited: Cases Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 33 Taylor v R [2014] ACTCA 9 |
Parties: | Glenn James (Informant) Tony Lucas (Defendant) |
Representation: | Ms V Wei/Ms V Conliffe (Informant) Mr S McLaughlin (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Informant) Legal Aid ACT ( Defendant) | |
File Numbers: | CC18/8045; CC18/8350; CC18/7493; CC18/7495; CC18/7496; CC18/10383; CC18/7490; CC18/8442 |
SPECIAL MAGISTRATE HUNTER
THE PROCEEDINGS
Tony Lucas pleaded guilty to 7 offences committed between 4 June 2018 and 7 June 2018 and one offence on 31 May 2018. At the time he was on parole:
a.CC18/8442 – Theft of petrol Coles express Curtin 31 May 2018 – PG on 3rd occasion
b.CC18/8045: make off without payment – 4 June 2018 – stole $50 of fuel from 7-Eleven Erindale – PG on 5th occasion
c.CC18/8350: drive motor vehicle without consent – 4 June 2018 – White Ford Falcon – PG on 6th occasion
d.CC18/7493: drive motor vehicle without consent – 7 June 2018 – white Ford Falcon – PG on 6th occasion
e.CC18/7495: dangerous driving – 7 June 2018 – aggravated – PG on 6th occasion
f.CC18/7496: resist territory official – 7 June 2018 – Constable Carpenter – PG on 6th occasion
g.CC18/10383: possess drug of dependence – 7 June 2018 – methyl amphetamine – PG on 2nd occasion
h.CC18/7490: drive with prescribed drug in oral fluid – first offender – PG on 6th occasion
None of these pleas were entered at the earliest opportunity, some discount will be given for those pleas in relation to the timing of the plea. However, I accept there is utility in pleading guilty, saving a trial and witnesses giving evidence. I also note that the prosecution case was strong in relation to all offences.
The offences were aggravated because the defendant was on parole for similar offending.
PAROLE
In the pre-sentence report exhibited before me as P4, the author states that on 27 February 2015, Mr Lucas was sentenced to a period of imprisonment that commenced from 12 September 2014, until 11 September 2015. On 11 September 2015, Mr Lucas was released to a further good behaviour order for a period of two years. Mr Lucas breached this order by way of reoffending and he was sentenced to a further period of imprisonment. On 11 November 2016, Mr Lucas was released to parole but faced breach action for failing to attend for appointments. Mr Lucas was imprisoned from 5 January 2017 until 28 November 2017. On 28 November 2017, Mr Lucas was again released to parole however, this order was revoked by the Sentence Administration Board and on 8 June 2018 he was returned to custody.
Service records indicate that his behaviour since being returned to custody has been sporadic. He has been subject to 3 disciplinary actions which have included cellular confinement and loss of privileges on three occasions for; being observe receiving a tattoo from another detainee, breaking the cell window and failing to follow directions.
It is noted that Mr Lucas is currently sentenced to a term of imprisonment with a release date of 20 June 2020, unless he applies for and is granted parole.
I have exhibited before me as exhibit P5 the warrant for imprisonment dated 12 June 2018. That warrant orders that Tony Lucas be imprisoned for two years and 17 days commencing on 12 June 2018 and expiring on 28 June 2020.
I also had before me:
a.The statement of facts exhibited in relation to CC18/8045 (Exhibit P1);
b.The statement of facts in relation to the CC18/7490, 18/7493, 18/7496, 18/10383 (Exhibit P2);
c.A criminal history (Exhibit P3);
d.The pre-sentence report (Exhibit P4).
CIRCUMSTANCES OF OFFENDING
Charges CC18/8045, 18/8350
In relation to charge CC18/8045 and 18/8350, the defendant, at a proximally 1:28 PM on 4 June 2018, drove a white coloured Ford Falcon sedan registration YIF11R into the 7-Eleven petrol station at Wanniassa. The driver filled the vehicle with $50 of fuel, got back into the driver’s seat and drove out of the station without making any attempt to pay for the fuel. The vehicle being driven had been stolen from O’Connor on 31 May 2018. Police conducted checks and found that the CCTV depicted the defendant driving the vehicle at the time.
Charges CC18/7493, 7495, 7496, 10383, 7490
10. In relation to charges CC18/7493, 7495, 7496, 10383, and 7490, the circumstances are that, on 31 May 2018, the owner of a white Ford Falcon momentarily left his vehicle which was unlocked with the keys inside. When he returned he saw it being driven away from his residence. On 7 June 2018 police attended 13 Helemon Street in Braddon. At that address, police noted a vehicle which they had seen the day before and had failed to stop for police when directed. When police were walking to the residence they noted a white Ford Falcon YIF11R being driven down the driveway of the residence towards them. The defendant was driving the vehicle with a female passenger. The vehicle came to a stop on a single lane road enclosed by a brick wall of the residence. Police approached the vehicle on foot and were walking in front of the vehicle. When police were proximally 45m in front of the vehicle the engine began revving at high intensity.
11. Police were concerned for their safety as they feared the vehicle would drive toward them causing them serious injury. They drew their firearms and aimed at the defendant telling him to stop. The defendant did not stop but drove the vehicle in reverse up the driveway through the unit complex away from police. Police followed on foot and observed the vehicle collide at an acute angle with a brick wall and become lodged in place. Police again directed the defendant to stop. The vehicle engine revved which resulted in the vehicle being dislodged from the brick wall and again reversed away from police. The defendant reversed the vehicle across Wise Street in Braddon and onto the footpath adjacent to Merici College girls’ school. The vehicle narrowly avoided a light pole. The police continued to approach the vehicle, it revved its engine again when police were close to the front of the vehicle. Police again feared for their safety and drew their firearm aiming it in the direction of the defendant. The defendant did not stop and drove towards police, narrowly missing them and driving along West Street out of sight.
12. At 10:42am police observed the same vehicle being driven in Marr Street Pearce. Marr Street Pearce has a 40 km zone because of the high school. Children were playing at the school at the time. Police positioned an unmarked vehicle at the intersection of Marr Street and Hodgson Crescent in the southbound lane. The unmarked vehicle activated emergency lights whilst facing in the direction of the defendant. Police raised their arms telling the defendant to stop. The engine was revved again and rapidly accelerated away. Police deployed tyre deflation devices to no effect: the driver continued to speed past the stationary unmarked police vehicle. At the time, a Toyota Hilux was stopped in Marr Street. The defendant failed to stop and collided with the rear of the vehicle resulting in a heavy collision and damage to both vehicles.
13. Three police officers on foot approached the defendant and verbally directed him to exit the vehicle. The defendant climbed over the passenger, exited through that door and attempted to run from police. Police ultimately apprehended the defendant and arrested him.
14. The defendant actively resisted the police, engaging in a scuffle which resulted in a police officer being injured and later requiring medical assessment at hospital.
15. The vehicle which the defendant collided with had two occupants: a mother and her six-month-old baby. Neither were hurt in the collision.
16. Upon arrest, the defendant was searched and a clip seal bag was found with a crystalline substance being methyl amphetamine. The defendant was drug tested and was positive for methyl amphetamine whilst driving.
Charge CC18/8442
17. In relation to charge CC18/8442, on 31 May 2018 at 10:50AM the defendant attended the Coles express service station in Curtin in a Holden Commodore utility. The driver exited the vehicle and commenced refuelling it with unleaded fuel to the value of $70.39. The defendant returned to the seat of the vehicle and drove off without paying. CCTV footage showed the defendant as the driver.
DEFENCE SUBMISSIONS
18. Defence counsel submitted in relation to the make off with the fuel from both service station as a typical example of this type of offence which I accept. There was nothing aggravating about the behaviour, other than the fact it was dishonest.
19. In relation to the series where the defendant drove dangerously, failed to stop for police when required, had drugs in his system when driving, and resisted police when arrested, as well as driving a motor vehicle without consent, defence counsel made the following submissions, that the defendant, upon seeing police, panicked, backed into the wall and hit the wall in order to escape. Defence counsel submitted that the collision with the motor vehicle which contained a woman and her child was not done deliberately as the vehicle at that point was out of control. While I accept that may be true, the fact that he was driving in the way that he did posed a significant danger to the public, which eventuated when he collided with the vehicle containing the mother and her 6 month old child.
20. Defence counsel submitted, in relation to the arrest and resist police, whilst accepting that the officer was hurt, that it was not done deliberately but rather was a result of the flailing of arms and legs in the resist. Again, whilst that may be true, I do not accept that premise - once he was arrested he should have submitted to police. When he did not submit and resisted violently the probability of someone being injured was obvious.
21. In relation to the driving with drugs in his system being methyl amphetamine, it is clear that the defendant is a heavy user of drugs.
22. The particulars of the defendant are that he is 25 years of age as noted above he will be serving a term of imprisonment until 2020. It was submitted that I must reset the non-parole period and it was accepted that the defendant had committed these offences whilst on parole for similar offences. Defence counsel submitted that he is at present eligible to apply for parole however that will change once I have sentenced him in relation to these matters. Defence counsel submitted that the defendant has spent one day in custody in relation to these matters. There was some argument in relation to whether the sentence which I pronounce should commence on 7 June which is the date he was returned to custody however prosecuting counsel submitted that that was not correct because it would be double counting because his parole was cancelled by the Sentence Administration Board.
23. Defence counsel submitted that the defendant started taking drugs when he was very young and referred to Henry v the Queen (1999) NSWCCA 111. Defence counsel submitted that, given his age, rehabilitation is a very important and prominent factor. Defence counsel submitted that the defendant has a reason to rehabilitate himself given he has two children, aged four and five. Defence counsel further submitted that he has the capability of completing rehabilitation in the community as he has already completed Karralika which is rare for someone so young.
24. Defence counsel further submitted that given the defendant is now required to serve his sentence after having his parole cancelled, I must consider the principles enunciated in relation to totality. Defence counsel further submitted that I should impose a shorter than usual non-parole period, which would allow the defendant to be able to put his name down for a rehabilitation program. Once he has done that he can then approach the parole board to be released to attend rehabilitation.
25. Defence counsel submitted that the reason for these offences being committed were that he was at his father’s place and people from the AMC were released. The defendant ran into them and fell into old habits. He then committed these offences.
PROSECUTION SUBMISSIONS
26. Submissions were made by the Director’s Office. It was submitted that the parole was revoked not because of these offences, but because he breached his parole. I have had regard to the documents I have now tendered before me and that is the correct position.
27. The prosecutor submitted there should be some accumulation between offending as part of a course of conduct but there were three different sets of offending, and some accumulation should be recorded.
28. The prosecutor submitted that, in relation to the driving charges, they were very serious: it was a prolonged course of conduct and the mother whose vehicle was hit had a six-month-old child in that vehicle. The offence was committed in a residential area, there were road users and multiple police at that time. It was clear the defendant had no intention of being detained by the police and engaged in this egregious conduct which puts it in the higher end of objective seriousness.
29. The prosecutor submitted that specific deterrence is an important factor in these matters given his history of similar offending. The defence counsel’s plea to be lenient should be considered with great caution. The prosecutor submitted that he had been released on parole in November for serious matters of similar nature he committed further similar offences and whilst rehabilitation is an important factor it needs to be taken into context rather than be at the forefront of any sentencing exercise.
30. The prosecutor submitted that it would be difficult to be confident that the defendant would engage in rehabilitation if he was given a lesser non-parole period and submitted that it is not an easy exercise but I must take into account the community’s safety. The prosecutor submitted further that leniency is not the best option; there needs to be a stern denunciation of his behaviour, particularly given the harm caused to the police officer and the mother and child.
31. In reply, defence counsel submitted that there were early pleas of guilt (which is not actually accurate), he is remorseful and understands the seriousness of the offending, and that he has a potential job when he is released.
PRE-SENTENCE REPORT
32. Mr Lucas was born and raised in the ACT and is one of four children. He left home at 14 because his parents were too controlling and went to reside with an aunt and cousins who her more relaxed in attitude. That was the time when he started to engage in unlawful activities. The defendant described a close relationship with his parents and siblings despite disrupted periods throughout his youth,
33. The defendant has two children from a previous relationship and has not had any contact with them for some considerable time. There are currently family court proceedings in relation to the children with a view for him to have contact.. He claimed that the relationship with his co-offender was negative and has now ended. The defendant claimed that in the first few months after his release in November 17 he attended residential rehabilitation. The defendant relapsed and was couch-surfing between friends for the purpose of accommodation. The defendant indicated that he will return to his mother’s residence upon release.
34. The defendant left formal education halfway through Year 8 after being expelled. He did attempt to complete Year 10 but has not done so. The defendant has limited employment history, with several short terms of employment as a removalist and general labourer. His longest period of employment was 12 months.
35. The defendant has a debt of $11,000. The defendant commenced consuming alcohol at 14 years of age and continued on a daily basis up until the age of 18 but does not consume alcohol anymore. He used cannabis first at 14 years and escalated to a daily habit until the age of 21. He also used methamphetamine from the age of 16 years and used the substance occasionally. The defendant increased the use of methamphetamine injecting up to a gram a day from the age of 21 when his relationship with the mother of his children broke down. He has also misused Buprenorphine. The defendant recognized a direct link between his illicit substance abuse and offending behaviour as well as relationship breakdowns.
36. The defendant completed the Karralika residential rehabilitation program at the end of 2017. He remained abstinent for some months before relapsing and committing the current offences. The defendant is currently participating in the alcohol drug awareness and harm prevention training at the AMC. The level of illicit substance abuse has been substantial. The defendant recognized that most of his friends and associates were criminals or involved in illicit drug use and he said he planned to avoid those type of negative influences once released.
37. The defendant also indicated that he had some mental health issues since his adolescence and reported engagement with mental health services whilst in custody and also the community. ACT Health indicated that the defendant has a history of psychosis, depression, and post-traumatic stress disorder. He is currently being treated at the AMC for those issues. I note that during the assessment at the AMC the defendant denied experiencing any mental health concerns and there was no overt evidence of note during the assessment.
38. In relation to the attitude to the offence, the defendant agreed with the statement of facts however did not agree that he was in possession of illicit substances because he claimed a friend had left it in the car but has accepted responsibility for his actions. He appeared willing to engage in interventions to address his criminogenic risks.
39. The defendant has been assessed as high risk of reoffending given his illicit substance abuse, mental health issues, negative peer associates and limited education or employment opportunities.
40. I have taken into account the defendant’s pleas of guilt which has been referred to above. I have also taken into account the purposes of sentencing pursuant to section 7 of the Crimes (Sentencing) Act 2005 (ACT).
41. I have also take account the section 33 criteria including but not limited to:
a.plea of guilt, see above;
b.his antecedent history, which of course is not designed to punish him twice but it reflects on the degree of leniency one is entitled to give; see Veen v R
c.nature and circumstances of the offending;
d.personal circumstances;
e.injury resulting from the behaviour;
f.degree of responsibility accepted
g.the cultural/family background;
h.demonstration of remorse.
PURPOSES OF SENTENCING
42. I have considered the principles enunciated in Taylor v R [2014] ACTCA 9, in particular where a sentence of imprisonment is to be imposed and where a non-parole period must be calculated where the court said, at [16]-[17] and [19]-[20]:
16. Section 7 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) sets out the sentencing purposes for which a court may impose a sentence, articulating the position at common law:
7 Purposes of sentencing
(1) A court may impose a sentence on an offender for 1 or more of the following purposes:
(a) to ensure that the offender is adequately punished for the offence in a way that is just and appropriate;
(b) to prevent crime by deterring the offender and other people from committing the same or similar offences;
(c) to protect the community from the offender;
(d) to promote the rehabilitation of the offender;
(e) to make the offender accountable for his or her actions;
(f) to denounce the conduct of the offender;
(g) to recognise the harm done to the victim of the crime and the community.
(2) To remove any doubt, nothing about the order in which the purposes appear in subsection (1) implies that any purpose must be given greater weight than any other purpose.
17. Section 10(2) applies where a court is sentencing an offender for an offence punishable by imprisonment. It provides:
10 Imprisonment
...
(2) The court may, by order, sentence the offender to imprisonment, for all or part of the term of the sentence, if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate.
19. The proper approach to fixing a non-period is well established and can be summarised as follows.
1. A non-parole period must be fixed having regard to all the sentencing purposes of s 7, the objective seriousness of the offence and the offender's subjective circumstances. It is the minimum period of imprisonment that justice requires to be served: Power v The Queen (1974) 131 CLR 623 at 627 – 628, Deakin v The Queen (1984) 11 A Crim R 88 at 89, Lowe v The Queen (1984) 154 CLR 606 (Lowe) at 615, Bugmy v The Queen (1990) 169 CLR 525 (Bugmy) at 536.
2. An offender’s prospects of rehabilitation are important to the fixing of the non-parole period. Generally, the perceived prospects of rehabilitation will make a significant difference to the non-parole period. Among other things, they will indicate what is required by way of protection of the community: Bugmy at 531 – 532.
3. The proportion of the sentence that is to be served by way of non-parole period is a matter for judicial discretion and cannot be reduced to a mathematical formula: Inge v The Queen (1999) 199 CLR 295 (Inge) per Kirby J at 316. In fixing the relationship between the term of imprisonment and the non-parole period, a sentencing judge has a wide discretion: Lowe at 610, 620 and 625.
4. Ordinarily, the non-parole period will constitute a substantial part of the total sentence: Inge per Kirby J at 316. In this Court, in circumstances where the offender committed a serious offence and had limited prospects of rehabilitation, the Court declined to disturb a non-parole period that was 70% of the total sentence: Drayton v The Queen [2013] ACTCA 44. However, Drayton and other cases decided in the ACT should not be used to fix an “available range” for non-parole periods. The concepts of “manifest excess” and “manifest inadequacy” do not mean that a sentence has fallen outside an “available range”. Very recently, in Barbaro v The Queen [2014] HCA 2 at [27], French CJ, Hayne, Kieffel and Bell JJ observed:
... the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed.
In sentencing the appellant, the sentencing judge said:
You have had no prior counselling and treatment for drug abuse. You expressed to the author of the Pre-Sentence Report the belief that you can control your drug abuse without help, and you contemplated being able to use heroin on an infrequent basis without problems in the future. It appears to me that such beliefs are utterly naive.
I note that you expressed some regret to the author of the Pre-Sentence Report for your offending behaviour, and also expressed some understanding of how your behaviour might have affected your victim. The author of the Report assessed you as having little insight into the seriousness of your drug abuse and its consequences. He assessed you as being at medium to high risk of re-offending, an assessment with which I agree.
20. Having concluded that the appellant had limited prospects of rehabilitation and was at a medium to high risk of re-offending, the sentencing judge was entitled to impose a relatively substantial non-parole period. Sentencing, including the fixing of a non-parole period, is a quintessentially discretionary exercise, albeit one that must be conducted by applying relevant principles. Although, in the ACT, non-parole periods generally fall within the range of 50 – 70% of the total term, error is not established by showing that a non-parole period falls outside this range, even in the case of an offender with a minor prior criminal history and no prior experience of imprisonment. In this case, others may have taken the view that, as the offender was being imprisoned for the first time, the deterrent effect of imprisonment could not be predicted, and that it was best to afford the Sentence Administration Board a wide discretion in relation to the appropriate release date. However, it is not for an appellate court to interfere with the discretion of a sentencing judge, except where clear error is shown: Balthazaar v The Queen [2012] ACTCA 26 at [61], approving R v Abbott (2007) 170 A Crim R 306 at 309.
DECISION
43. I have adopted the approach of the Court in Taylor v R in relation to the setting of a non-parole period.
44. The defendant has a not insignificant criminal history for offences of a similar nature to those for which I am required to sentence him today, as well as some violent offences and offences of dishonesty. He has a number of matters from the Children’s Court which were serious matters and he has also been sentenced in the Supreme Court to terms of imprisonment. His history is recorded in both the ACT and New South Wales for similar offending. For a young man of 26, he has an appalling criminal history. I recognize that does not mean I should not punish him twice, but affords him little leniency. [1]
[1] Veen v R (1998) 164 CLR 465
45. I note that the defendant was on parole when he committed these offences which is an aggravating feature. I note that he most likely is capable of attending and completing a rehabilitation program, however, falls into bad company and drug use quite easily despite attending the programs.
46. It is clear that until he addresses his illicit drug use and criminal behaviour he will continue to be a significant risk to the community.
47. In my view, the driving matters series was particularly egregious and serious, and warrants condign punishment.
48. Nothing but a term of imprisonment is appropriate in relation to these matters (except for the fine only offence). That threshold has been well and truly passed. As I’ve noted earlier he is serving a term of imprisonment until all 20 June 2020.
49. I have calculated the appropriate sentences for these offences. Taking into account the matters I’m required to pursuant to section 33 of the Crimes (Sentencing) Act 2005 (ACT). There needs to be specific deterrence for this offender given his considerable criminal history. General deterrence plays some role in sentencing this offender, however the specific deterrence in relation to him is critical if he is to observe a life without crime.
50. I have also accumulated some parts of the sentence having considered the principles of totality[2] and I have imposed a non-parole period which punishes the defendant for the offending behaviour but which also allows for rehabilitation in the community in due course.
ORDER
[2] Mill v R (1988) 166 CLR 59
51. The defendant is convicted in relation to each offence. The following table sets out the sentences, accumulation, head sentence, and non-parole period.
IMPRISONMENT CALCULATIONS
DEFENDANT: TONY LUCAS
| CHARGE NO: | TERM OF IMPRISONMENT: | START DATE | END DATE | EARLIEST RELEASE DATE/NON PAROLE PERIOD/ REMARKS |
| 18/08442 | 2 months | 8/9/2019 | 8/11/2019 | |
| 18/8045 | 2 months | 8/10/2019 | 8/12/2019 | |
| 18/8350 | 12 months | 8/10/2019 | 8/10/2020 | |
| 18/7493 | 12 months | 8/12/2019 | 7/12/2020 | |
| 18/7495 | 8 months | 8/2/2020 | 8/10/2020 | |
| 18/7496 | 4 months | 8/3/2020 | 8/7/2020 | |
| 18/10383 | 3 months | 8/3/2020 | 8/6/2020 | 15 months head sentence from 8/9/2019 to 7/12/2020 Non parole period to end 7/12/2019 |
| 18/7490 | Convicted and fined $400.00 |
I certify that the preceding fifty [51] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Special Magistrate Hunter OAM.
Associate: Cecilia Pascoe
Date: 30 November 2018
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