R v Anderson
[2020] ACTSC 235
•3 September 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Anderson |
Citation: | [2020] ACTSC 235 |
Hearing Dates: | 3 July, 28 July, 11 August 2020 |
DecisionDate: | 3 September 2020 |
Before: | Robinson AJ |
Decision: | See [32] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – abolition of periodic detention – re-sentence – sentence of imprisonment |
Legislation Cited: | Crimes Act 1900 (ACT), s 24 Crimes (Sentence Administration) Act 2005 (ACT), ss 102, 902 Domestic Violence and Protection Orders Act 2001 (ACT) (repealed), s 34 |
Cases Cited: | GW v The Queen [2016] ACTCA 9 |
Parties: | The Queen (Crown) Jimmy Anderson (Offender) |
Representation: | Counsel C Wanigaratne (Crown) S McLaughlin (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid (Offender) | |
File Number: | SCC 214 of 2009 |
Robinson AJ:
Jurisdiction
This matter comes to this Court upon a referral by the Sentence Administration Board to the Court under s 902(1) of the Crimes (Sentence Administration) Act 2005 (ACT), which was a transitional provision introduced by the Crimes (Sentencing and Restorative Justice) Amendment Act 2016 (ACT).
The Court, in these circumstances, is obliged to proceed under s 902(2) and (3) which are as follows-
(2) If the board refers the offender for re-sentencing under subsection (1), the sentencing court must re-sentence the offender for the offence in relation to which the periodic detention order was made.
(3)In re-sentencing the offender, the court—
(a) must take into account the following (in addition to any other matters the court considers should be taken into account):
(i) the fact that the offender was sentenced to periodic detention;
(ii) anything done under the periodic detention; and
(b) must not—
(i) impose a penalty that, when taken together with a penalty previously imposed for the offence for which the periodic detention was ordered, is greater than the maximum penalty the court could have imposed for the offence; or
(ii) re-sentence the offender to periodic detention.
History
This matter first came before me on 3 July 2020. Neither party was able to progress the proceedings on that day and jointly sought an adjournment in order to examine the court file and consult, so as to piece together the happenings and events from 2009 until 2020. What follows is taken partly from contemporaneous records in the court file and partly from an agreed chronology of events given to me from the bar table.
Jimmy Anderson, whom I will refer to as the offender, was charged by police in respect of three offences alleged to have been committed on 24 January 2009. The offences occurred in connection with a domestic dispute between the offender and a person with whom he had been in a domestic relationship and which relationship had produced two daughters.
On 3 June 2009, the offender was committed for trial and on 9 September 2009 an indictment was filed which alleged, in summary, three counts-
(a)Count 1: the robbery of the domestic partner’s 18 carat gold solitaire diamond ring with four small diamonds (CC2009/1589), contrary to s 309 of the Criminal Code 2002 (ACT).
(b)Count 2: intentionally causing damage to a gold coloured handbag belonging to the domestic partner (CC2009/3054), contrary to s 403(1) of the Criminal Code.
(c)Count 3: contravening a protection order in favour of that domestic partner (CC2009/1590), contrary to s 34(2) of the Domestic Violence and Protection Orders Act 2001 (ACT).
That indictment was never prosecuted.
A fresh indictment was filed on 21 June 2012. There is no express explanation in the material before me as to why it was filed. This indictment again contained three counts with the first two counts being in different terms, although the new counts 2 and 3 possessed the same charge numbers as the original counts 2 and 3. In summary, the indictment alleged-
(a)Count 1: that the offender assaulted his domestic partner and occasioned her actual bodily harm (ex officio), contrary to s 24 of the Crimes Act 1900 (ACT).
(b)Count 2: intentionally causing damage to property namely an 18 carat gold diamond ring with four small diamonds and a gold coloured handbag belonging to his domestic partner (CC2009/3054), contrary to s 403(1) of the Criminal Code.
(c)Count 3: contravening a protection order in favour of that domestic partner (SCC2009/1590), contrary to s 34(2) of the Domestic Violence and Protection Orders Act.
It can only be inferred that the second indictment was a result of negotiations which took nearly three years to come to fruition in the offender’s favour.
On 22 June 2012, Higgins CJ sentenced the offender. The orders made were as follows:
1. Jimmy Anderson (the offender) be convicted and sentenced as follows:
a.in relation to the charge of Assault (Ex Officio) the offender is sentenced to 6 months imprisonment.
b.in relation to charge of damaging property over $1000 in value (CC 3054 of 2009) the offender is sentenced to 3 months imprisonment, to be served cumulatively with the above charge.
c.In relation to the charge of contravening a protection order (CC 1590 of 2009) the offender is sentenced to 9 months imprisonment to be served wholly concurrent with Ex Officio and CC 3054 of 2009
2. The offender is sentenced to a total of 9 months imprisonment.
3. the sentence is to be served in way of 3 months periodic detention commencing on 29/6/12 and ending on 28/9/12.
4. the remaining 6 months is to be suspended after 3 months, effective 22/6/12 subject to the offender signing an undertaking to comply with good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for a period of 18 months commencing on 22/6/12 and ending on 21/12/13.
10. Before the Court on that occasion was a Statement of Facts to which I have had regard. I have also had regard to a transcript of the Chief Justice’s remarks on sentence in which the Chief Justice observed that the “matter is somewhat ancient”.
11. The offender duly entered into the Good Behaviour Order which included core conditions such as that alcohol and drug tests must not be positive.
12. The offender attended one weekend of periodic detention. Thereafter, he failed to attend as directed by ACT Corrective Services and also failed an alcohol test. The offender was arrested on a Sentence Administration Board warrant and appeared before the Magistrates Court.
13. On 23 August 2012 the offender was granted bail and was directed to attend ACT Corrective Services for bail supervision on 28 August 2012. The offender failed to comply with this later direction. I interpolate to record that the offender had two further charges pending against him at the time. He had been charged with two offences of assault. The complainants in those matters were his mother and his younger sister. These assaults had occurred on 9 July 2012. Later, a further charge in connection to a failure to answer a bail undertaking was also brought against him.
14. On 6 November 2012, an information was sworn under s 102 of Crimes (Sentence Administration) Act alleging that the offender was in breach of the Good Behaviour Order dated 22 June 2012 and, in particular, condition (d) in that he failed to accept the supervision of the Director-General or her delegate and failed to obey all reasonable directions.
15. That led to an arrest warrant being signed by a justice of the Supreme Court on 20 December 2012.
16. As counsel for the offender put it “he was arrested and brought before the court … [on] 23 August 2012 and it is from that point he effectively disappeared from the system”. I am told that the offender carried on his life. He originally lived in Queanbeyan for a period. He then moved back to the ACT and lived with his mother. He worked as a removalist for some six and a half years, during which period he was simply never spoken to by police and never picked up on these matters. The offender was again sought by police on a charge of using a carriage service to menace or harass in January 2017. He was living with his mother at the time but the police did not contact him.
17. On 16 February 2020, the offender was alleged to have committed three further assaults. This appears to be the impetus for police to locate the offender.
18. The offender was arrested from the back of his removalist truck on 23 March 2020 and taken before the Magistrates Court.
19. The arrest warrant issued by the Supreme Court in December 2012 was then executed.
20. On 17 June 2020, Magistrate Theakston granted the offender bail on the eight or so matters, by then, pending before that Court. Apparently, no order appears to have been made regarding bail on the arrest warrant. In any event, the offender walked out of the cells on 17 June 2020.
21. The offender spent 87 days in custody.
22. The offender’s outstanding matters pending before the Magistrates Court were listed on 7 August 2020. They have now been adjourned until November 2020, pending the outcome of an assessment of suitability for an Intensive Correction Order.
Re-sentence for the offences in relation to which the periodic detention order was made.
23. It is common ground between the parties that the offender was a person who answered the description of being an offender serving a sentence by periodic detention within the meaning of s 902(1) of the Crimes (Sentencing and Restorative Justice) Amendment Act and that the Board has decided that the offender has breached his periodic detention obligations.
24. In these circumstances, I must re-sentence the offender for the offences in relation to which the periodic detention order was made.
25. Higgins CJ sentenced the offender in relation to three offences. The structure was six months’ imprisonment for the assault, three months’ imprisonment for the damaged property to be served cumulatively fully upon the assault charge, and nine months’ imprisonment on the contravention of a protection order, with this nine months to be served wholly concurrently with the combined sentence of nine months from the first and second offences.
26. In these circumstances I need to re-sentence the offender for all three offences.
27. I have regard to the fact that the Chief Justice allowed the sentences of imprisonment to be served by way of periodic detention for a period of three months and thereafter the sentences to be suspended. Periodic detention is no longer available in the Australian Capital Territory as a sentencing option.
28. In GW v The Queen [2016] ACTCA 9 a like situation occurred. GW obtained a stay of execution of his sentence of periodic detention and, by the time that the appeal process had been fully played out, including an appeal to the High Court, periodic detention was no longer available in the Australian Capital Territory. Some of the considerations to be brought to bear in the current circumstances are set out in the submissions at [12]-[17] of that case.
29. In this case, I find that the conduct of the offender in deliberately avoiding his obligations to serve the sentence imposed upon him does not reflect creditably upon him at all. Further, during the intervening time period, the offender has committed a number of offences to which he has indicated a plea of guilty before the Magistrates Court. In the offender’s favour is the fact that he has maintained constant employment and his employer has had the confidence to re-engage him after he was released on bail earlier this year by the magistrate.
30. The offender, in my view, must serve the sentence imposed upon him. His conduct in the intervening period permits no element of leniency and the offender himself has brought about the delay. Because periodic detention is no longer available, the precise sentence must necessarily be transmuted. In the circumstances of this case it is appropriate to convert, in approximate terms, the burden of periodic detention into full‑time imprisonment.
31. Consistently with Higgins CJ’s original sentence, the sentence for the offence of damage to property is to be served cumulatively on the sentence for the offence of assault. The sentence for the offence of contravening a protection order is to be served concurrently with the first two sentences. As the offender has already served 87 days’ imprisonment, these sentences are backdated to take into account time served.
Order
The orders that I make are as follows:
1. For the offence of assault (ex officio), I re-sentence the offender to imprisonment for 51 days commencing on 23 March 2020 and finishing on 12 May 2020.
2. For the offence of damage to property (CC2009/3054), I re-sentence the offender to imprisonment for 28 days commencing on 13 May 2020 and finishing on 9 June 2020.
3. For the offence of contravene protection order (CC2009/1590), I re-sentence the offender to imprisonment for 79 days commencing on 23 March 2020 and finishing on 9 June 2020.
| I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Robinson. Associate: Date: 3 September 2020 |
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