R v AW
[2015] ACTSC 212
•27 March 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v AW |
Citation: | [2015] ACTSC 212 |
Hearing Date: | 27 March 2015 |
DecisionDate: | 27 March 2015 |
Before: | Penfold J |
Decision: | See [15], [16] and [19] below. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – breach of good behaviour order made in suspending sentences committed as a juvenile – breach constituted by less serious offence than offences dealt with in original sentencing – other indications of successful rehabilitation – offender re-sentenced – outstanding sentence again suspended. |
Cases Cited: | The Queen v AW, Higgins CJ, 9 February 2012 |
Parties: | The Queen (Crown) AW (Offender) |
Representation: | Counsel Ms P Burgoyne-Scutts (Crown) Mr J Silk (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Jeffrey Silk (Offender) | |
File Number: | SCC 300 of 2011 |
[Summary of pre-sentence evidence, submissions and argument]
[AW came before me to be dealt with under the Crimes (Sentence Administration) Act 2005 (ACT) for a breach of a good behaviour order imposed by Higgins CJ in February 2012 (The Queen v AW, Higgins CJ, 9 February 2012), in connection with suspending prison sentences imposed for a number of relatively serious offences committed by AW as a young person.
His Honour had:
(a)sentenced AW for 14 offences, also taking into account one scheduled offence;
(b)backdated the sentence to take account of time spent in pre-sentence custody;
(c)suspended the outstanding portion of the prison sentence; and
(d)made a good behaviour order for three years, to expire on 8 February 2015.
However, AW was at that time in custody for other offences as well, and was not in fact released until about a year later. Because he had signed his good behaviour undertaking on the day he was sentenced by the Chief Justice, it seemed that technically, although remaining in custody, he was not serving any of the sentences imposed by his Honour.
The breach was constituted by a conviction in the Magistrates Court for failing to stop and assist after an accident on 19 October 2014, for which AW was fined $2,100. There was a related offence of negligent driving for which AW was also fined, but that offence would not have breached the good behaviour order.
The effect of his Honour’s backdating of the sentence meant that a number of the sentences imposed by his Honour had been served by the time they were imposed. Although listed on the good behaviour order, they were not in fact affected by the breach.
There was also some confusion about how the various sentences were to be served, because the total sentence specified by his Honour (42 months imprisonment) did not accord with the effect of the concurrency and accumulation also specified in the sentencing remarks, some of which also seemed to involve incorrect calculations (for instance, there were two 18-month sentences and a 4-month sentence which had been referred to as amounting to a total sentence of 16 months).
In February 2013, I had sentenced AW for eight other offences, and had suspended the outstanding portion of my sentence subject to an 18-month good behaviour order, which was successfully completed in September 2014.
Before me for the re-sentence were:
(a)the statement of facts for the offences dealt with by the Chief Justice, his Honour’s sentencing remarks, AW’s criminal history and a statement of facts for the offences recently dealt with in the Magistrates Court, all tendered by the Crown; and
(b)statements from AW’s mother, and from a branch manager at AW’s employer Kennards, as well as an email from my associate relating to a proposal from Corrective Services to terminate the supervision of AW that had been a condition of the good behaviour order I had made in February 2013 (all tendered by the defence).
AW’s employer spoke highly of AW, pointing out that he had been employed there for about 18 months and acted as the store manager when the manager was off-site. AW’s mother also considered that AW had matured greatly in the previous two years.
The Crown did not submit that AW should be required to serve any further part of the Chief Justice’s sentences in custody.
In re-sentencing AW I had regard to the period he had spent in custody after the Chief Justice’s sentences were suspended, to the importance of rehabilitation in sentencing young offenders, and to the fact that the breach of the good behaviour order involved an offence that was both less serious than and of a different nature to his earlier offending.]
Sentencing
AW, can you stand please.
I note first the convictions for the two offences in the Magistrates Court. Those put you in breach of the good behaviour order made by Higgins CJ in February 2012. That means that I have to cancel that good behaviour order and I have chosen, and you have heard the reasons why, to re-sentence rather than to impose the outstanding period of the sentence. Imposing it would mean requiring you to serve it in custody so you are going to be re-sentenced.
The calculations have been done on the basis that you should have been serving some of Higgins CJ's sentences while you were still in custody after, in fact, that good behaviour order was made, and I will re-sentence you on those as well, but I might do these other ones first.
The re-sentencing that I can make sense of right now is that:
(a)on the charge of receiving stolen property, you are sentenced to 12 months imprisonment, backdated to 28 September 2014, so that is six months of that already served;
(b)on the possess prohibited weapon offence, you are sentenced to three months imprisonment to extend that earlier sentence by a further two months, so at the moment we are up to six months of the first one still to be served plus another two months;
(c)on the take motor vehicle without consent offence, you are sentenced to three months imprisonment, to add two months to the sentence, so we are now up to 10 months; and
(d)on the assault offence, you are sentenced to 21 months imprisonment, to add 12 months to the earlier sentences, so that takes it up to 22 months outstanding and 28 months including the backdating.
That sentence of 28 months will be suspended immediately, leaving 22 months outstanding, and I will make a good behaviour order for those 22 months with only the core conditions, so no further supervision condition or anything else.
That is what has not been served one way or another. If you are of good behaviour for the next 22 months, then that is the end of that sentence and those will all be finished with.
What I need to do now is just quickly to work out some dates for the earlier sentences that have not formally been completed, but will be, because I am going to backdate them to take account of the time that you were in custody before I sentenced you.
AW, would you stand up again for sentence on some earlier offences:
(a)for the offence of aggravated burglary, you are sentenced to 18 months imprisonment, backdated to 28 June 2013 and finishing on 27 December 2014;
(b)for the theft associated with that aggravated burglary, you are sentenced to six months imprisonment from 28 June 2013 to 27 December 2013; and
(c)for the intimidate police offence, six months imprisonment to be served from 28 September 2014 to 27 March 2015, being today.
So those sentences are imposed and served, and so what you are left with is the sentence I did earlier
Finally, AW, I should say to you that you are getting there and from the sounds of it you should be able to manage 22 months good behaviour to get rid of the rest of those sentences.
I hope that is the last time we will see you and I hope it is the last time you have to sit through that sort of performance. I might say I hope it is the last time I have to sit through that sort of performance, if it comes to that, but I am less optimistic in general terms than I am about you.
| I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Kate Harris Date: 4 August 2015 |
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