Police v Beroukas
[2024] ACTMC 10
•9 April 2024
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Police v Beroukas |
Citation: | [2024] ACTMC 10 |
Hearing Dates: | 5 April 2024 |
Decision Date: | 9 April 2024 |
Before: | Magistrate Temby |
Decision: | See [104] – [108] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment – Sentence – Driving offences – Minor theft – Unlawful possession of stolen property – consideration of application for non-conviction order in relation to driving offences – sentence of imprisonment |
Legislation Cited: | Crimes (Sentencing) Act 2005 ss 10(2), 17, 33(1)(a), 33(1)(j), 33(1)(m), 33(1)(w), 35 Crimes (Sentencing Administration) Act 2005, ss 85, s107(2) |
Cases Cited: | R v Doan (2000) 50 NSWLR 115 R v Mauger [2012] NSWCCA 51 |
Parties: | Claire Louise Armit (Informant 1st & 2nd series) Paul Allen (Informant 3rd series) Timothy Paul Saunders (Informant 4th series) Thomas Whyte (Informant 5th series) Jordan Beroukas ( Defendant) |
Representation: | Solicitors Director of Public Prosecutions Zachary McBride ( Defendant) |
File Numbers: | CC 10883 of 2021 CC 11954 of 2021 CC 8937 of 2022 CC 8934 of 2022 CC 8935 of 2022 CC 8936 of 2022 CC 12252 of 2022 CC 12251 of 2022 CC 7279 of 2023 CC 7280 of 2023 |
MAGISTRATE TEMBY:
Introduction
1․The Defendant comes before the Court today to be sentenced in relation to 10 offences. I found the Defendant guilty at hearing in relation to four of those offences and he pled guilty to the remaining offences.
Nature and circumstances of offence – s 33(1)(a) – and objective seriousness
3 November 2021 offences
2․The first two offences occurred on 3 November 2021. These are:
(a)10883/21 – drive whilst disqualified as a repeat offender; and
(b)11954/21 – unlawful possession of property.
10883/21
3․The facts of these offences begin at 12.40am. At that time, the Defendant was observed by a witness driving into the car park of the Mercure Hotel in Braddon. The witness observed the Defendant conduct a full lap of the car park before parking across two bays at the rear entrance of the hotel.
4․The witness called the police, who arrived at 12.57am. Police observed the headlights to be on, the vehicle running, and the Defendant asleep in the driver seat of the vehicle. Police awoke the Defendant and observed him to be unsteady on his feet, glassy eyed, unaware of his surrounding and unable to comprehend police. He was slurring his words. Police formed the view that the Defendant was under the influence of intoxicating substances.
5․These are the facts of 10883/21. The maximum penalty for this offence is 100 penalty units and/or one year imprisonment.
6․In my view, the objective seriousness of this offending is towards the upper end for this kind of offence. The Defendant had been disqualified from holding a licence on 27 February 2020 for a period of 36 months. This offence was committed around half-way into the 36 month period. While the period of disqualification was a long one, being a repeat offender makes the offending conduct more serious. He had been convicted of 10 offences of drive while disqualified or suspended between 2016 and 2019, as well as a further offence of the same kind in NSW in 2016. The Defendant’s offending is contumacious.
11954/21
7․When the police attended on the Defendant at the Mercure Hotel, they observed a new black mobile phone wedged between the driver’s seat and the door frame of the car that the Defendant was in. Upon the Defendant’s arrest for the first offence, the police conducted a search of the Defendant’s belongings, which revealed a black Samsung mobile and, in the car, six other mobile phones. Four of the mobiles were valued at $995. The parties seem to accept that the total value of all the phones was approximately $3,000.
8․The items found by police bore the serial number of items stolen from CEX Electrical in Belconnen on 26 October 2023.
9․These are the facts of 11954/21. The maximum penalty for this offence is 50 penalty units and/or six months’ imprisonment.
10․I accept, as the Defendant submits, that there is no evidence as to how the Defendant came to be in possession of the items or how long he had possession of them for. However, this is a rolled up charge involving the unlawful possession of eight items of property. Given the number and value of the items found in the Defendant’s possession, the objective seriousness of this offence is at least at the mid-point in the spectrum.
11․It is an aggravating factor on sentence for the November 2021 offences that the Defendant was subject to a Good Behaviour Order, entered into in relation to Supreme Court proceedings, however I do not place much weight on that factor so as not to interfere with the Supreme Court’s discretion in dealing with the breach of that Good Behaviour Order.
25 August 2022 offences
12․The next four offences were committed on 25 August 2022. These are:
(a)8937/22 – number plate not properly issued;
(b)8934/22 – make off without payment – minor offence;
(c)8935/22 – minor theft; and
(d)8936/22 – drive while disqualified as a repeat offender.
8937/22
13․The Defendant entered the Coles Express petrol station from Wiluna Street in Fyshwick, driving a car bearing registration plates [redacted]. Those plates had been reported stolen from a different car in NSW on 1 August 2022.
14․These are the facts of 8937/22. The maximum penalty for this offence is 20 penalty units.
15․The use of the stolen number plates would be made more serious by the fact that the Defendant was using them in the course of committing a further offence, but that fact cannot be taken very far given that he is to be sentenced for that other offence. Accordingly, I take this to be a rather unremarkable example of the offence.
8934/22
16․Whilst at the petrol station, the Defendant filled the car he was driving with 22.28 litres of petrol, to a value of $40.08. He ultimately drove away without paying for the petrol.
17․These are the facts of 8934/22. The maximum penalty for this offence is 50 penalty units and/or six months’ imprisonment.
18․In my view, the objective seriousness of this offence falls towards the lower end of the range, given the low value of the petrol that was taken and given the nature of the organisation from which it was taken, being a large commercial enterprise. It appears that this was an opportunistic offence.
8935/22
19․Before driving away, the Defendant entered the Coles Express store. He took a box of unknown contents and an ice-cream. The value of the ice-cream was at or below $5.50.
20․These are the facts of 8935/22. The maximum penalty for this offence is 50 penalty units and/or six months’ imprisonment.
21․The objective seriousness of this offence is at the low end of the range. Like the previous offence, the value of the theft is low and the victim of the theft was a large commercial enterprise.
8936/22
22․At the time that the Defendant drove into, and out of, the Wiluna Street petrol station he was disqualified from holding a driver licence.
23․These are the facts of 8936/22. The maximum penalty for this offence is 100 penalty units and/or one year imprisonment.
24․The objective seriousness of this offence is towards the upper end. I have mentioned the repetitiousness nature of the Defendant’s offending for this kind of offence in discussing 10883/21. Whilst the Defendant was almost all the way through the 2020 disqualification, it was the second time that he had driven during that disqualification. The significant repetition again demonstrates a contumacious disregard for the law and for court orders. The fact that the driving was associated with other offences would make it more serious, however I cannot punish the Defendant twice.
25․I note that the Defendant was on bail for the 2021 offences when he committed these offences, which is an aggravating factor on sentence, particularly in circumstances where he was in breach of the conditions of his bail not to be in the driver’s seat of a motor vehicle.
23 November 2022
26․The next two offences occurred on 23 November 2022. These are:
(a)12252/22 – drive while disqualified as a repeat offender; and
(b)12251/22 – minor theft.
12252/22
27․The Defendant drove into, and away from, Bunnings Fyshwick.
28․Essentially, these are the facts of 12252/22. The maximum penalty for this offence is 100 penalty units and/or one year imprisonment.
29․The objective seriousness of this offence is, like 8936/22, towards the upper end of seriousness for the same reasons. This was the third time that the Defendant drove during the period of the 2020 disqualification. Again, the offending is contumacious.
30․An aggravating factor on sentence is that the Defendant was on conditional liberty at the time of the offending, being on bail, particularly in circumstances where one of the Defendant’s bail conditions was that he was not to drive a vehicle.
12251/22
31․Whilst at Bunnings, the Defendant stole 13 items, totalling $1,136.44.
32․These are the facts of 12251/22. The maximum penalty for this offence is 50 penalty units and/or six months’ imprisonment.
33․The objective seriousness of this offence is around mid-range. The value of the items stolen is over midway in terms of the maximum value captured by the offence of minor theft, but the items were taken from a large business rather than an individual.
34․Again, it is an aggravating factor on sentence for these offences that the Defendant was on conditional liberty – being his bail for the earlier offences – and, in particular, that he was in breach of those conditions of bail not to drive a motor vehicle.
20 July 2023 offences
35․The Defendant committed the final two offences on 20 July 2023. These are:
(a)7279/23 – dishonestly drive a vehicle; and
(b)7280/23 – possession of property reasonably suspected of being stolen.
7279/23
36․At 10pm, the police found the Defendant asleep in a Volkswagen Amarok, which was towing a trailer. The vehicle was running with the transmission in drive. The vehicle had been stolen on 9 July 2023. The trailer had been stolen on or around 18 July 2023. The Defendant was blocking one of the lanes on Streeton Drive.
37․These are the facts of 7279/23. The maximum penalty for this offence is 500 penalty units and/or five years’ imprisonment.
38․The elements of the Defendant’s conduct that make this offence more serious are that he was the driver of the vehicle, that he was asleep at the wheel blocking a lane of traffic and the fact that the vehicle was used in the commission of another offence, although I am careful not to punish the Defendant twice as he is already charged with the other offence. There is nothing to indicate how long the Defendant had the vehicle, or the value of the vehicle, or as to any damage caused.
7280/23
39․Related to the previous offence, inside the trailer were a number of large outdoor chess pieces that had been stolen on or about 18 July 2023.
40․These are the facts of 7280/23. The maximum penalty for this offence is 50 penalty units and/or six months’ imprisonment.
41․Again, on the agreed facts it is difficult to assess the objective seriousness of this offence, particularly as little can be gleaned as to the value of the property. I take the offence to be unexceptional.
42․Also like the previous offence, it is an aggravating factor on sentence that the Defendant was on conditional liberty at the time of the offence. It is an aggravating factor that the Defendant was on bail for charges 8934-37/22, 12251-12552/22, 10883/21 and 11954-11955/21 and, in particular, that he breached the conditions of his bail not to be in the driver’s seat of a vehicle and not to be away from his residence after 9pm at night.
43․I note, as the Defendant’s submissions stated, that, in considering the matter:
(a)I must be satisfied beyond reasonable doubt of any fact which might be relied on in aggravation of the offence for which the Defendant is charged; and
(b)I must be satisfied on the balance of probabilities of any facts which I take into account in mitigation of the offences or in mitigation of the sentence.
Subjective Circumstances
44․The Defendant is almost 27 years of age.
45․The Defendant submits that the Court may find that the Defendant experienced profound social deprivation, having regard to his exposure to family violence, early exposure to alcohol and drugs and interrupted school attendance, and that that deprivation impacts his moral culpability for the offences for which he is to be sentenced.
46․The evidence does not support such a finding.
47․The Defendant’s father died when he was two years old. He was raised by his mother and stepfather. He left home at the age of 14 due to conflict with his stepfather. There is no evidence as to what that conflict involved or that the Defendant was exposed to violence and I do not accept that the inference I was asked to draw is open on the balance of probabilities. There is no evidence as the particular circumstances which led to the Defendant leaving home. As I will discuss in more detail shortly, the Defendant told the authors of the Pre-Sentence Report (PSR) that he commenced using drugs as a teenager although, again, there is no evidence as to precisely when that occurred or the circumstances by which he started using drugs.
48․I have some sympathy for the Defendant’s position, which has informed my approach to sentencing the Defendant, however I do not consider that the evidence engages the Bugmy principles.
49․He currently has monthly contact with his mother and irregular contact with his sister. He also has an aunt and cousins who have provided him with accommodation in the past.
50․The Defendant has a two year old daughter, however she resides with a foster carer and the Defendant last had contact with her six months ago. He did not indicate to the authors of the PSR that he had any plans to resume contact with his daughter, although in evidence he did say that he wishes to be a father to her.
51․The Defendant has been in a relationship with his current partner for two years. He lives with her in ACT Housing accommodation.
52․The Defendant left school during Year 8 but completed Year 10 at the CIT. He reported to the authors of the PSR that he has had inconsistent employment due to time spent in custody and illicit substance abuse. He told the authors of the PSR in January 2024 that he had established his own landscaping business over the preceding five months, in addition to maintaining employment in scaffolding, and that he received a partial Job Seeker payment.
53․In evidence at the sentencing hearing he said that he was working for MMM Constructions for about one and a half months before re-entering custody. He said that he had tried to start a landscaping business but it was challenging. He said that he does not intend to return to work immediately on his release from custody as he considers that he needs to work on rehabilitation first. He found juggling employment and other obligations difficult and his punctuality, in particular, suffered.
54․The Defendant has a history of cannabis, heroin and methamphetamine use, commencing as a teenager. He said that he used GHB at the time of the most recent offences (that is, 7279 and 7280/23). He was subject to drug testing on 6 June 2023 and 11 November 2023, which returned positive results for opiates, amphetamines and methamphetamines. No further testing has been undertaken, as the Defendant missed a number of face to face appointments with ACT Corrective Services since 11 November 2023, despite an obligation under his bail conditions to do so.
55․The Defendant attended one week of a residential rehabilitation program in 2023, before being exited. He receives monthly Buvidal injections.
56․As noted earlier, the Defendant gave evidence that he is committed to pursuing further rehabilitation on his release from custody. He said that he completed six months residential rehabilitation at Arcadia House between November 2021 and May 2022, but it was challenging after he left Arcadia House because he had no money. His journey with drug use since then has been on and off and he said that he fell back into addiction when his house burned down in mid-July 2023. He was using heroin and ice then.
57․He said that he has made a concerted effort not to take drugs since the most recent offences in July 2023, when he was found asleep in a car, having consumed GHB. He said that he realised that he was close to being returned to custody. As mentioned earlier, he said that he has the support of his partner of two years.
58․He said that he is also committed to taking Buvidal injections, and has done so since December 2023. He said that his use of those injections has been on and off for the past three to four years.
59․He plans to attend the Arcadia House day program or the Canberra Recovery Service Residential Program on release.
Remorse and Contrition – s 33(1)(w)
60․In speaking to the authors of the Pre-Sentence Report about his offences, the report records that the Defendant tended to attribute his behaviour to external influences and provided detailed justifications for his behaviour while taking little personal responsibility.
61․In evidence, the Defendant said that he was determined to make this time in custody his last and that he is committed to addressing his behaviour and drug addition. That is not the same thing as remorse, although the effect – in terms of indicating a reduced likelihood of re-offending – is similar if the Defendant’s commitment is genuine. I note that the Defendant said that he is willing to abide by any conditions necessary to assist him to be a contributing member of society and also that he wants to be able to be a father to his daughter.
62․The Defendant submits that I should approach his rehabilitation with guarded optimism, optimism such that rehabilitation should be a primary focus of the sentencing exercise. I agree that rehabilitation is an important sentencing consideration, however the Defendant’s rehabilitation prosects are simply guarded. Despite my acceptance of the Defendant’s genuineness in wanting to move away from the use of drugs and to be a positively contributing member of society, it is difficult to be particularly optimistic.
63․The Defendant returned a positive drug test the last time he was tested by Corrective Services in November 2023, he breached his bail numerous times between May 2023 and November 2023 due to positive drug tests, he initially failed to engage with Corrective Services for the preparation of a PSR which delayed the finalisation of the matter, he only lasted one week in a residential rehabilitation program in 2023 before he was exited from that program and he failed to appear at the sentencing hearing in February 2024. While some of the offences to be sentenced were committed some time ago now, in November 2021, the offending continued in August 2022, November 2022 and July 2023.
Criminal History – Section 33(1)(m) - antecedents
64․The Defendant has an extensive criminal history.
65․Relevant to the present dishonesty offences, I note that the Defendant has:
(a)four minor theft offences, committed between 2016 and 2020;
(b)two theft offences, committed in 2016;
(c)two burglary offences, committed in 2016;
(d)five obtain property by deception offences, committed between 2014 and 2019; and
(e)four unlawful possession of stolen property offences, committed between 2016 and 2019.
66․Relevant to the Defendant’s present driving offences, I note that the Defendant has:
(a)11 drive while disqualified or suspended offences, committed between 2016 and 2019 as previously discussed;
(b)three number plate issued for another vehicle offences, committed between 2016 and 2019;
(c)eight use unregistered vehicle offences, committed between 2015 and 2019;
(d)eight use uninsured vehicle offences, committed between 2015 and 2019; and
(e)three aggravated furious/reckless/dangerous driving offences, committed between 2016 and 2018.
67․Relevant to the Defendant’s present dishonestly drive vehicle offence, I note that that the Defendant has:
(a)one ride/drive motor vehicle without consent offence, committed in 2019; and
(b)one take motor vehicle without consent offence, committed in 2014.
68․The Defendant’s criminal history is relevant in three ways:
(a)it is relevant to the seriousness of the drive while disqualified offences, as already discussed in relation to the objective seriousness of those offences. I accept the Prosecution submission that the Defendant has shown a contumacious disregard for court orders and driving laws;
(b)it is relevant insofar as the volume of previous offences demonstrates that the Defendant is not entitled to any leniency; and
(c)it is also relevant in the sense that it highlights that specific deterrence, protection of the community, accountability and denunciation of the Defendant’s conduct are sentencing purposes that clearly need to be addressed in formulating an appropriate sentence.
69․It is also of considerable significance that the Defendant committed offences 7279 and 7280 only two months after being found guilty for the offences the subject of 8934 to 8937. It demonstrates the risk of the Defendant re-offending and the protection that the community requires.
70․The Defendant submits that things are different now because the Defendant has obtained his licence and felt positively about lawfully driving. The Defendant submits that this is not insignificant because the Defendant has been disqualified from driving for 10 years and has never held a licence, so he has never had anything to lose when it comes to driving offences.
71․It is of course true that, having obtained his licence, the Defendant will not commit any further drive while disqualified offences unless, of course, he commits further driving offences which result in a disqualification, or otherwise fails to comply with his regulatory obligations (such as paying fines). However, he always had something to lose. He had the opportunity to apply for a licence to lose. He also risked losing his liberty. In the past, the Defendant has exhibited a disrespect and lack of concern for laws and court orders which were inconvenient to him. I have little confidence that the Defendant would act any differently now if he were to find himself in the same position.
Pleas of Guilty – s 33(1)(j) and 35
72․Pleas of not guilty were entered in relation to charges 10883/21 and 11954/21 in November 2021. Those pleas were maintained in March 2022 before the matters were transferred to the Supreme Court in March 2023. They were remitted to the Magistrates Court in April 2023 and pleas of guilty entered in September 2023, at the 29th mention of the matter, on the day of the hearing. Given the period of time that elapsed between the PNG being entered and the plea of guilty being entered, I consider that a 15% discount is appropriate.
73․In reaching this view, I have taken into account the Defendant’s submission that a significant discount should be allowed, given the submission that a prosecution witness was proofed late in the piece and the evidence of that witness undermined the defence that the Defendant intended to pursue at hearing. The Defendant submits that, had the witness given a statement, an early plea would have been forthcoming. Ultimately, these are assertions made in submissions rather than matters that have been established but, more importantly, the utilitarian value of the plea is significantly lessened by the passage of time and the fact that the plea of guilty came on the day of hearing. The utilitarian value of a plea is less about the reasonableness of the position taken by a Defendant and more about the benefit to the criminal justice system of an early plea. I was contemplating only allowing a 10% discount for these charges but decided that 15% was appropriate given the matters raised by the Defendant.
74․Charges 8937, 8934, 8935 and 8936 of 2022 were proved at hearing, and no discount is appropriate.
75․Pleas of not guilty were initially entered for charges 12252 and 12251 of 2022, before a plea of guilty was entered at the hearing of those charges. I consider that a discount of 15% is appropriate.
76․Pleas of not guilty were also initially entered for charges 7279 and 7280 of 2023, in September 2023, before a plea of guilty was entered on 6 November 2023. I am advised by the Defendant that no brief was prepared, however, I note that a hearing had been listed for 1 December 2023 in September. The proximity of the plea to the hearing date limited the prospect of that date being able to be utilised for another matter. In those circumstances, I consider that a discount of 20% is appropriate for these charges.
Statutory and other Relevant Considerations
77․In terms of the purposes of sentencing, some of which I have already addressed:
(a)specific deterrence is clearly a relevant sentencing purpose, given the repetition of similar offending (that is, driving and dishonesty offences) both between the offences to be sentenced and with the Defendant’s criminal history;
(b)denunciation and accountability are, for similar reasons, particularly significant in relation to the Defendant’s driving offences;
(c)accountability and the protection of the community are important sentencing considerations with respect to all of the offences; and
(d)rehabilitation is something that should be encouraged, to the extent possible. As has been said many times, and as reflected in the Defendant’s submissions, rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection. Having said that, as I have noted, the Defendant’s prospects of rehabilitation are guarded and the status of the Defendant’s rehabilitation is at the intention phase rather than having really embarked on the process of rehabilitation.
Sentence
78․Ultimately, I must ensure that the Defendant is adequately punished in a way that is just and appropriate.
79․Several principles are relevant to that exercise.
80․Firstly, careful attention to the maximum penalties for the offences is required.
81․Second, in assessing the appropriate sentence, I note that, even though the limit of the Court’s jurisdiction in relation to matter 7279/23 is lower than the maximum penalty for that offence, I am required to conduct an initial assessment of the appropriate sentence without reference to that jurisdictional limit: R v Doan (2000) 50 NSWLR 115.
82․Third, as I am sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality. In doing so, I must ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved and that the sentence should not be ‘crushing’ in the sense that it induces a sense of hopelessness and destroys prospects of rehabilitation.
83․Fourth, pursuant to subsection 10(2) of the Sentencing Act, the court may only sentence the Defendant to imprisonment if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate. Given the repetitious nature of offending, the purposes of sentencing I have identified, the seriousness of the Defendant’s offending, the maximum penalties for the Defendant’s offences, his unaddressed issues with illicit substance use and guarded prospects of rehabilitation, his breaches of bail (particularly non-compliance with attendance for supervision appointments and failed drug tests) and resultant question mark as to whether he will be able to comply with the conditions of community-based orders, and the fact that he is not suitable for Community Service Work, I am of the view that there is no alternative to imprisonment with respect to:
(a)each of the drive while disqualified offences;
(b)the unlawful possession of stolen property offence;
(c)the 2022 minor theft offence; and
(d)the dishonestly drive a MV offence.
84․I have determined that the appropriate sentences for each of the offences are as follows:
(a)21/10883 – drive while disqualified – a term of imprisonment of five months (reduced from six months for the plea of guilty);
(b)21/11954 – unlawful possession of stolen property – a term of imprisonment of two months (reduced from two and a half months for the plea of guilty);
(c)22/8937 – numberplate not property issued – Good Behaviour Order for 12 months (in accordance with the below conditions);
(d)22/8934 – make off without payment – Good Behaviour Order for 12 months (in accordance with the below conditions);
(e)22/8935 – minor theft – Good Behaviour Order for 12 months (in accordance with the below conditions);
(f)22/8936 – drive while disqualified – a term of imprisonment of eight months;
(g)22/12252 – drive while disqualified – a term of imprisonment of six months, 20 days (reduced from eight months for the plea of guilty);
(h)22/12251 – minor theft – a term of imprisonment of two months, 15 days imprisonment (reduced from three months for the plea of guilty);
(i)23/7279 – dishonestly drive a MV – a term of imprisonment of two months, 12 days (reduced from three months for the plea of guilty); and
(j)23/7280 – possession of property reasonably suspected of being stolen – Good Behaviour Order for 18 months (in accordance with the below conditions).
85․Having regard to principles of totality, and also the desire to avoid a sentence that is crushing, I will order a significant degree of concurrency in the sentences for the drive while disqualified offences, such that they total 12 months in the aggregate. The balance of the sentences of imprisonment total approximately 7 months, giving a total sentence of imprisonment of approximately 19 months. I consider that that is an appropriate aggregate sentence having regard to the totality and seriousness of offending. Proceeding in this way I do not consider that any further concurrency is required between the sentences of imprisonment, including with respect to offences committed on the same date.
86․The Defendant has served 220 days in custody, however, not all of that time is attributable to all offences. The Defendant has spent:
(a)220 days in custody in respect of CC21/10883 and CC21/11954;
(b)201 days in custody in respect of CC22/8934 to 8937;
(c)199 days in custody in respect of CC22/12251 and 12252; and
(d)56 days in custody in respect of CC23/7279 and 7280.
87․Given my guarded view as to the Defendant’s prospects of rehabilitation, but my acceptance of his genuine desire to pursue rehabilitation, I will suspend the sentences after the Defendant has served nine months, being approximately 50 per cent of the aggregate sentence. That will be on the basis of the Defendant entering into a Good Behaviour Order for 18 months (in accordance with the below conditions) commencing from 2 June 2024.
Defendant’s s 17 application
88․For completeness, I note that while the Defendant sought a section 17 non-conviction order with respect to his drive while disqualified offences, I do not consider it appropriate to exercise my discretion to make an order under that section.
89․The principal reason why the Defendant seeks a section 17 order is to avoid the consequences of a conviction, being the further disqualification of the Defendant’s licence, however the Defendant has not addressed in any substantive way how the criteria in section 17 are satisfied.
90․The Defendant submits that specific deterrence and rehabilitation would be promoted by putting the Defendant on a lengthy Griffiths remand and for the court to put a Good Behaviour Order in place. The Defendant says that he would be significantly deterred from committing further offenses, it would promote his rehabilitation and the community would understand that a person who has been disqualified for 10 years and never had a licence should have an opportunity to demonstrate that they can keep it.
91․I start by observing that a conviction is the ordinary consequence of a finding of guilt and that the absence of a conviction is, therefore, an exceptional outcome, albeit that exceptional circumstances are not required.
92․Further, as the NSW Court of Criminal Appeal said in R v Mauger [2012] NSWCCA 51, in discussing a similar provision that operates in NSW:
Where the offence that is committed is an objectively serious one and where general deterrence and denunciation are important factors in sentencing for that offence, the scope of the operation of the section decreases.
93․I do accept that, despite what I have just said, the application of section 17 is not limited to minor offences. I also accept that an order under section 17 can be made in conjunction with a Good Behaviour Order, which itself is a form of punishment.
94․Ultimately, the question is whether, having regard to the considerations set out in section 17, there are sufficiently cogent or compelling circumstances to warrant a departure from the usual course.
95․I have identified the objective seriousness of the drive while disqualified offences – they are serious examples of that kind of offence. As I have also indicated, they are sufficiently serious, in combination with a range of other considerations, to justify a term of imprisonment. The Defendant’s antecedents also do not assist him.
96․The Defendant has not addressed the other criteria and there are no extenuating circumstances with respect to the offending conduct favouring the exercise of the discretion in section 17.
97․The Defendant’s submissions seek to invoke “other” considerations. I do not accept that those considerations support the exercise of the discretion. I do not consider that a Griffiths remand or a Good Behaviour Order would significantly deter the Defendant from re-offending. He has disregarded court orders in the past and a Good Behaviour Order entered into for Supreme Court proceedings and, as I have mentioned already, his prospects of rehabilitation are guarded. While he has not re-offended since July 2023, I note that he has spent 220 days in custody since that time and, as I have previously mentioned, he has breached his conditions of bail on a number of occasions.
98․In terms of his rehabilitation, the Defendant has not identified why he needs a licence, beyond being a matter of convenience for him. I note that he does not immediately intend to return to work, but rather intends to attend rehabilitation, possibly in a residential setting. This would likely minimise his need for a licence, at least for a time, and the fact that he would not have a licence would not impede his rehabilitation. Ordering a term of imprisonment would, of course, delay the Defendant’s entry into the rehabilitation programs he has identified, but he is able to pursue some rehabilitation in custody and the delay would not be significant.
99․I also do not accept that making a section 17 order would adequately address the purposes of sentencing I have identified as being relevant, including general deterrence. I do not consider that the community would understand at all how someone who has so blatantly disregarded court orders should be given a section 17 order to get around the automatic consequence of driving while disqualified. It would be an incredibly lenient outcome.
No reparation order
100․Finally, I note that compensation schedules were produced in relation to the theft of items from Bunnings, Coles Express and CEX Westfield Belconnen. Presumably they were provided in support of a possible reparation order.
101․As to the last of those companies, the Defendant advises that each of the phones that was taken from that store was returned to it. That is sufficient reason not to make a reparation order.
102․I note, additionally, with respect to the possibility of a reparation order being made against the Defendant in favour of any of these companies, that the Defendant does not have the funds to satisfy a reparation order and would take a long period of time to be able to do so. I consider that it would hamper his rehabilitation to put pressure on him to do so, and I decline to make any reparation orders.
Orders
103․Accordingly, I make the following orders:
(a)I record convictions in relation to each of the offences committed by the Defendant.
(b)In respect of:
1․ CC21/10883, the sentence of imprisonment will commence on 2 September 2023 and conclude on 1 February 2024;
2․ CC22/8936, the sentence of imprisonment will commence on 2 January 2024 and conclude on 1 September 2024;
3․ CC22/12252, the sentence of imprisonment will commence on 13 February 2024 and conclude on 1 September 2024;
4․ CC21/11954, the sentence of imprisonment will commence on 2 September 2024 and conclude on 1 November 2024;
5․ CC22/12251, the sentence of imprisonment will commence on 2 November 2024 and conclude on 16 January 2025;
6․ CC23/7279, the sentence of imprisonment will commence on 17 January 2025 and conclude on 31 March 2025.
104․The sentences of imprisonment will be suspended after nine months, that is from 2 June 2024, on the Defendant entering into a Good Behaviour Order for 18 months.
105․Each of the Good Behaviour Orders that are not entered into in relation to a suspended sentence order (that is, 22/8937, 22/8934, 22/8935 and 23/7280) are also to commence from 2 June 2024.
106․The Defendant will be required to sign an undertaking to comply with his good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 for the period of the Good Behaviour Orders together with the following additional conditions:
(a)he is to be subject on probation to the supervision of the Director-General of Corrective Services or delegate and obey all reasonable directions of that person for the period of the Good Behaviour Orders, or such lesser period as deemed appropriate by the supervising officer;
(b)he is to report to the Corrective Services Officer at Level 1, 249 London Circuit, Canberra City within two working days of being released from custody;
(c)he is to attend such educational, vocational, psychological, psychiatric or other assessments, programs or counselling as directed, particularly in relation to drug use, employment and attitude issues; and
(d)he is to supply samples of breath, saliva, blood or urine for alcohol or drug testing if required by a Corrective Services Officer.
107․For the same reason as I have made the sentences of imprisonment for the drive while disqualified offences partly concurrent, I will make the licence disqualification periods concurrent. The period of disqualification, being 24 months, is significant enough and I want the Defendant to have something realistic to aim for.
Committal
108․In relation to the offences committed by the Defendant with respect to 21/11954 and 21/10883, the Defendant is committed to the Supreme Court under subsection 107(2) of the Crimes (Sentence Administration) Act 2005 for breach of the Good Behaviour Order he entered into on 21/1240.
| I certify that the preceding one-hundred and eight [108] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Temby. Associate: Niamh Dwyer Date: 18 June 2024 |
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