Morales v Faccin and Wiseman (No 2)
[2019] ACTSC 227
•20 August 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Morales v Faccin and Wiseman (No 2) |
Citation: | [2019] ACTSC 227 |
Hearing Date: | 20 August 2019 |
DecisionDate: | 20 August 2019 |
Before: | Murrell CJ |
Decision: | Breach established. Good behaviour orders cancelled. Offender re-sentenced to two-year good behaviour orders with supervision. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Breach of good behaviour order – Where good behaviour orders from both Supreme Court and Magistrates Court are breached – Where the breach offences are similar to the original offences – Where the offender has strong rehabilitation prospects |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) ss 107(2), 108, 109 |
Cases Cited: | Morales v Faccin and Wiseman [2018] ACTSC 100 |
Parties: | Rachel Morales (Appellant) Monique Maree Faccin (Respondent) Joel Brendon Wiseman (Respondent) |
Representation: | Counsel T Pasi (Appellant) S Saikal-Skea (Respondent) |
| Solicitors Prudential Legal Solutions (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Numbers: | SCA 50 of 2017; SCA 51 of 2017 |
Murrell CJ:
Introduction
The offender is before the Court for the breach of good behaviour orders that I imposed on 7 March 2018 when re-sentencing her after her successful appeal to the Court: Morales v Faccin and Wiseman [2018] ACTSC 100 (Morales).
The good behaviour orders were imposed for the following offences:
(a)26 February 2016—unlawful possession of stolen property, and obtaining property by deception.
(b)15 January 2017—driving while licence suspended.
(c)9 February 2017—driving while licence suspended.
For the first two counts, I imposed 12-month good behaviour orders with supervision. For the next count, I imposed an 18-month good behaviour order with supervision.
Between 20 and 21 September 2018, the offender committed new offences. On 1 July 2019, the Magistrates Court sentenced the offender to a total of 11 months and 15 days' imprisonment commencing from 1 November 2018. The sentences were suspended upon entering into 12-month good behaviour orders, until 30 June 2020.
These new offences placed the offender in breach of the 12-month and 18-month good behaviour orders that I had imposed. Accordingly, the offender was committed to the Supreme Court under s 107(2) of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act) for consideration of the breaches.
Facts of the original offences
I canvassed the facts of the original offences and their objective seriousness in detail when I heard the appeal (Morales at [11]–[16]):
… On 30 March 2016, someone broke into a secured toolbox fitted to the rear of a vehicle and stole tools. On 1 April 2016, the appellant attended the same pawnbroker that she had attended on the previous occasion and handed some of the stolen tools to the pawnbroker, receiving the sum of $165.00 in exchange. Again, no particular subterfuge was involved. The appellant provided her ACT driver’s licence and her passport to the pawnbroker, clearly identifying herself as the alleged owner of the property.
The pawned value of the property was relatively low, given the number and nature of the items. No doubt they were valuable to their owner, but the appellant herself did not obtain a very substantial sum of money from the pawnbroker. As the Magistrate noted, the objective seriousness of these matters was low. It was very much towards the lower end of the spectrum.
The offence of 15 January 2017 occurred when police observed the appellant driving into the driveway of the address she had given. They pulled up behind her. She identified herself correctly. She had a front seat passenger. In the rear seat, her four‑year‑old child was seated. Her licence had been suspended on 12 October 2016—i.e., three months earlier—due to an unpaid traffic infringement notice.
As the Magistrate observed, some seriousness attached to the offence because there were passengers in the vehicle. However, there was no suggestion that the appellant had driven a long distance or driven negligently. The offence is not at the lowest end of the spectrum in terms of objective seriousness, but nor was it was a matter of great objective seriousness.
The facts of the incident on 9 February 2017 were that the police were patrolling in the street in which the appellant resided. They observed the appellant driving a vehicle, which they stopped. They found that her licence had been suspended seven days earlier—on 2 February 2017—due to a fine default.
This offence was not at the bottom end of the spectrum of objective seriousness but it was very much towards the lower end given that the licence had been suspended only seven days earlier. There is no suggestion of any associated poor driving and the appellant was apprehended very close to her address; there was no suggestion of driving over an extended period.
Facts of the breach offences
20 September 2018
At around midday on 20 September 2018, a residence in Mawson was burgled and several items were taken without the occupants’ consent.
Between 12:20 PM and 12:57 PM, the offender used one of the stolen items, a credit card, by at various locations. She made five purchases with a combined value of $322.84. CCTV footage captured the image of the offender.
Between 12:26 PM and 10:10 PM, the offender used another stolen item, a debit card, at various locations. She made a total of seven purchases with a combined value of $386.29. Again, CCTV footage captured the image of the offender.
CCTV cameras outside one of the purchase locations also captured the offender driving a black utility vehicle. The vehicle had been reported stolen on 19 September 2018.
On 22 September 2018, police executed a search warrant at an address in Kambah and recovered other items that had been stolen from the Mawson property. They did not recover the credit and debit cards that had been used on 20 September 2018.
On 20 September 2018, the offender was subject to a 12-month disqualification from holding a drivers licence (from 19 July 2018).
The offender was convicted and sentenced as follows:
(a)One count of obtain property by deception—seven months’ imprisonment;
(b)Two counts of unlawful possession of stolen property—three months’ imprisonment, sentences to be served concurrently;
(c)One count of drive while disqualified—12-month good behaviour order.
(d)One count of drive motor vehicle without a properly issued number plate—$600 fine, with six months to pay.
21 September 2018
On 21 September 2018, two ANZ bank cards were taken from a residence without the occupants' permission. Between 1:55 PM and 7:19 PM, the offender either attempted or succeeded in making purchases with the stolen cards to a total value of $608.97. She was in the company of a male offender who also made purchases using stolen cards.
CCTV footage captured the image of the offender making the purchases and driving a silver Subaru vehicle between the purchase locations.
For this conduct the offender was convicted and sentenced as follows:
(a)One count of drive while disqualified—two months’ imprisonment;
(b)One count of attempt to obtain property by deception—three months’ imprisonment; and
(c)One count of obtain property by deception—seven months’ imprisonment.
The offending placed the offender in breach of another good behaviour order attached to a suspended sentence. The Magistrates Court activated the suspended sentence of two months and 15 days’ imprisonment.
As noted above, the total sentence imposed by the Magistrates Court was 11 months and 15 days, to expire on 15 October 2019. The sentences were suspended from 1 July 2019.
What action should the Court take on the breaches?
Pursuant to ss 108 and 109 of the Sentence Administration Act, a range of options is available to the Court, from taking no further action to cancelling the good behaviour orders and re-sentencing the offender.
The breach offences were committed just over six months after the imposition of the good behaviour orders. The breach conduct was serious and it was similar to the original offending conduct, suggesting that the Court should take significant action by way of re-sentencing the offender for the breaches.
Any re-sentence must relate only to the original offences. The Magistrates Court has already sentenced the offender for the breach offences, taking into account the aggravating feature that breach offences were committed while the offender was on conditional liberty in the community.
The offender’s criminal history is strongly related to her substance abuse. Drug abuse has been a means of self-medicating to manage a psychological condition associated with turbulent personal circumstances. The offender had no criminal history until recent years, when her substance abuse escalated.
In relation to the breach offences, the offender was released on bail. While on bail, on 3 May 2019, she was admitted to the WayBack Residential Rehabilitation Program. She demonstrated strong commitment to the program.
She left the program voluntarily in order to resume contact with her child who resides in the ACT in the care of a family member. The offender is permitted contact with her child once a month under supervision, commencing from 1 August 2019.
In the ACT, the offender has been residing at Lesley’s Place since 15 July 2019, and may remain there for three months. The facility is administered by Toora Women Inc., which coordinates the daily activities of residents and provides individualised case management, including for substance abuse. Toora provides outreach support when residents transition into the community.
The offender's father is willing to provide her with employment in his business and support her to rebuild her life.
Given the very positive steps that the offender has made in the past few months and the fact that, when sentencing the offender for the breach offences, the Magistrates Court saw fit to afford her an opportunity to pursue rehabilitation by imposing suspended sentences, I am also prepared to proceed in that way.
Conclusion
I am satisfied that the offender has breached her good behaviour obligations.
I cancel each of the good behaviour orders that I imposed on 7 March 2018, and re-sentence the offender by imposing a two-year good behaviour order from 20 August 2019 for each of the offences, on the conditions that the offender reports to Community Corrections by 4:00 PM today and accepts the supervision of Community Corrections for a period of at least 12 months and thereafter for such period as Community Corrections deems appropriate. The offender is to comply with any suggestion or recommendation by Community Corrections in relation to counselling and treatment for substance abuse, including any recommendation regarding residential treatment.
| I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |
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