R v BC
[2020] ACTSC 308
•9 November 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v BC |
| Citation: | [2020] ACTSC 308 |
| Hearing Date: | 9 November 2020 |
| Decision Date: | 19 November 2020 |
| Before: | Loukas-Karlsson J |
| Decision: | See [50]-[53] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – previous suspended sentence – breach of good behaviour order – breach by further offending – re-sentence – rehabilitation – |
| intensive correction order | |
| Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) ss 42 and 110 Crimes (Sentencing) Act 2005 (ACT) ss 11, 12, and 107 Road Transport (Alcohol and Drugs) Act 1977 (ACT) s 20 Road Transport (Driver Licensing) Act 1999 (ACT) s 32 Road Transport (Safety and Traffic Management) Act 1999 (ACT) ss 5C and 7 Road Transport (Third-Party Insurance) Act 2008 (ACT) s 17 Road Transport (Vehicle Registration) Act 1999 (ACT) ss 18 and 22 |
| Cases Cited: | Barron v Laverty [2019] ACTSC 198; 346 FLR 442 Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379 Guy v Anderson [2013] ACTSC 5 Hogan v Hinch [2011] HCA 4; 243 CLR 506 R v BC [2019] ACTSC 233 R v Beniamini (No 2) [2017] ACTSC 32 R v Bennett [2017] ACTSC 104 Saga v Reid [2010] ACTSC 59 The Queen v PM (No 2) [2015] ACTSC 358 |
| Parties: | The Queen (Crown) BC (Offender) |
| Representation: | Counsel |
| K Marson (Crown) J de Bruin (Offender) | |
| Solicitors | |
| ACT Director of Public Prosecutions (Crown) | |
| Legal Aid ACT (Offender) | |
| File Number: | SCC 71 of 2019 |
| LOUKAS-KARLSSON J: | |
| Introduction |
1. On 27 August 2019, I sentenced BC (the offender) for one count of aggravated burglary, one count of theft by joint commission, and one count of possessing a drug of dependence (the original offences). For these offences, the offender was sentenced as follows:
(a) Burglary – The offender was sentenced to 13 months and 15 days of imprisonment, commencing on 9 December 2018 and ending on 23 January
2020.(b) Theft – The offender was sentenced to eight months imprisonment, commencing on 9 December 2019 and ending on 8 August 2020.
(c) Possession of drug of dependence – The offender was sentenced to one month of imprisonment, commencing on 9 December 2018 and ending on 8 January
2019.2. Pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), the sentences were suspended from 8 September 2019 upon entry into a good behaviour order for a period of 18 months. The offender was subject to the core conditions of a good behaviour order, in addition to the following conditions:
(a) To accept the supervision of ACT Corrective Services for that period of 18 months, or such lesser period as deemed appropriate by his supervising officer; and (b) To participate in such programs, courses or treatment as directed by the Director-General, particularly in relation to drug addiction and the avoidance of relapse and psychological counselling. 3. On 26 December 2019, while subject to the good behaviour order, the offender was arrested and charged with the following offences (the fresh offences):
(c) Failure to stop motor vehicle when directed by police, contrary to s 5C of the Road Transport (Safety and Traffic Management) Act 1999 (ACT). (d) Aggravated furious/reckless/dangerous driving, contrary to s 7(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT). (e) Driving while disqualified, contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT). (f) Using an unregistered/suspended vehicle, contrary to s 18(1) of the Road Transport (Vehicle Registration) Act 1999 (ACT). (g) Using an uninsured vehicle, contrary to s 17(1) of the Road Transport (Third- Party Insurance) Act 2008 (ACT). (h) Having a number plate or registration not properly issued, contrary to s 22(1)(a) of the Road Transport (Vehicle Registration) Act 1999 (ACT). (i) Driving with a prescribed drug in oral fluid, contrary to s 20(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT).
4. On 11 June 2020, the offender pleaded guilty to the offences, thereby breaching his good behaviour obligations. Having pleaded guilty to the fresh offences, the learned Magistrate committed the original offences to the Supreme Court under s 107 of the Sentencing Act.
5. The offender is listed to be sentenced for the Magistrates Court matters on 19 November 2020.
Agreed Facts
Original Offences
6. The facts of the original offences may be summarised as follows.
7. At about 7am on 9 December 2018, the victim entered his secure garage in the underground carpark of his unit complex, where he observed the roller door of the garage to be up and both doors to his Volkswagen, and one door of his Holden, to be ajar.
8. The victim reported the matter to police, and while waiting accessed dash cam footage from the Volkswagen. The footage showed the offender and two co-offenders open the door to the garage at approximately 4am on 9 December 2018, enter and search the garage, and load a number of items into the boot and rear of a black hatchback before leaving.
9. The offender was located in the premises of the offender's partner later that day and arrested. He was transported into custody and searched, where police located a clip seal bag containing a white crystalline substance later identified as 0.241g of methylamphetamine.
10. Police later executed a search warrant on the premises, where they located the items that had been taken from the victim. These were: two motorcycle helmets with branded carry bags, a car tyre, a drone, a GoPro camera, a cordless drill with carry bag and attachments, a military body armour carrier and steel plates, a bag of microfiber cloths, and four magnetic registration plate covers. The items were returned to the victim.
Fresh Offences
11. The facts of the fresh offences may be summarised as follows.
12. At approximately 2.30pm on Thursday 26 December 2019, police observed a maroon Holden Commodore travelling above the speed limit on Coulter Drive, Weetangera. The Holden Commodore then turned left on to Belconnen Way.
13. Police activated warning lights and sirens, indicating for the Holden to stop. The Holden failed to stop and accelerated heavily. The Holden travelled across the centre median strip of the road and moved onto the incorrect side of the road. Due to the high speed of the vehicle, the impact of the rear left tyre going over the gutter caused the hubcap to become dislodged and the tyre to burst. The Holden drove directly at incoming vehicles and caused at least five vehicles to take evasive action to avoid a crash.
14. A pursuit ensued in which the Holden drove on the wrong side of the road at excessive speeds. On Holyman Street, the Holden lost control at an intersection and travelled onto dry grass on the side of the road. The left tyre had shredded and, due to the heat emanating from the vehicle, the grass caught fire.
15. The Holden turned into an apartment complex, and police recognised the driver of the vehicle to be the offender. The offender exited the vehicle and, after a short pursuit on foot, the offender was arrested. A drug screening test found that the offender had methamphetamine in his oral fluid.
Time in Custody
16. The offender spent 41 days in custody in relation to the fresh offences, from 26 December 2019 to 6 February 2020.
Criminal Record
17. The offender has a significant criminal record, comprising mainly of dishonesty and property offences, as well as a number of common assaults and driving offences. The record is discussed in my previous decision, R v BC [2019] ACTSC 233.
Subjective Circumstances
The offender’s subjective circumstances are set out in R v BC [2019] ACTSC 233. In
summary, the offender is one of nine children and experienced a disruptive childhood due to illicit substance use, family violence, and neglect. He left high school in Year 9. The offender has struggled with methamphetamine dependency for most of his adult life. He has attempted drug rehabilitation in the past and has managed to be abstinent from drugs for significant periods.
19. While in custody prior to sentence on the original offences, the offender completed the equivalent of Year 12 and engaged in employment with the AMC kitchen. He participated in drug and alcohol rehabilitation programs and engaged in counselling for past trauma related to being the victim of sexual assault as a child. Prior to his incarceration, the offender was employed on a casual basis by his father-in-law for approximately two years in pest control.
20. The original offences were committed when the offender was on parole in relation to previous offending involving driving while disqualified, common assault, dangerous driving, and failing to appear. At the time of sentence, the offender expressed his remorse for the offences; he wrote a signed letter to the Court and participated in a successful restorative justice process.
21. An updated pre-sentence report (PSR) dated 29 July 2020 notes that the offender has
been known to Corrective Services since 2008. The report states that the offender’s
compliance with the good behaviour order imposed in 2019 was “varied”. He failed to
attend multiple supervision appointments and there was poor engagement with third-
party services during 2019. It was noted, however, that the offender’s engagement
improved throughout 2020 and he had made active efforts to address criminogenic
factors by engaging with third-party interventions.22. The updated PSR states that the offender is the father to five children with his current partner. The children are aged between two months and five years. The offender is currently subject to a Care and Protection Order with provisions for supervision and urinalysis testing. Child and Youth Protection Services (CYPS) noted that the offender has regularly attended for urinalysis testing since April 2020 and has consistently returned a negative result for illicit substances.
23. The offender was bailed to a residential rehabilitation program run by the Oolong Aboriginal Corporation in February 2020. Due to the public health situation, the offender was required to return to the ACT in March 2020. The offender moved into an ACT housing property in April 2020, after leaving rehabilitation. He described his current housing arrangement in positive terms and noted that it is secluded from his previous anti-social associates.
24. In relation to the fresh offences committed on 26 December 2019, the PSR states that the offender accepted the statement of facts but advised that he had little memory of the offences due to being heavily under the influence of illicit substances at the time. The report states that the offender was able to provide insight into the impact of his actions on community safety and expressed remorse for his actions. He acknowledged that the offences were primarily attributable to his heavy substance use at the time and identified strategies to maintain his abstinence from such substances.
Letters
25. Counsel for the offender tendered two letters in relation to the offender’s rehabilitation
efforts since being granted bail in February 2020.
26. The first letter, under the hand of Ms Jolene Johnston, Intensive Based Family Support Case manager at Uniting, is dated 31 July 2020 and includes the following:
On April 1st 2020 [the offender] returned to ACT and the family home from Oolong House in Nowra due to COVID 19 restrictions meaning he could not complete his rehab program as per bail conditions.
During this time of support since April 2020 I have met with [the offender] on several occasions twice a week in the family home. I have witnessed [the offender] being a hands on dad and supporting his heavily pregnant partner who was due to have their twin boys in May.
I sighted [the offender] home schooling their oldest boys when schools were shut down and assist with cleaning the home.
When the twins … arrived I sighted [the offender] feeding the twins and assisting with
overnight care with [his partner].
The family home was always clean and tidy on every home visit.
[The offender] attends urinalysis twice a week and has never produced a dirty screen. If [the offender] has been unable to attend due to work or other medical appointments then he has always informed CYPS.
[The offender] is currently engaged in Karrilika for drug rehab support.
On the 29th of July I transferred [the offender and his partner] over to the Uniting Family Preservation team as I believe the family are very stable and are meeting the goals that [were] required and we are so happy with the work that [the offender] is doing and the support for his family he has provided.
27. The second letter is written by Ms Casey Ardler, Team Leader and Intake & Assessment Officer at the Oolong Aboriginal Corporation. It is dated 23 March 2020 and includes the following:
I would support our client application of seeking bail variation if possible.
With the uncertainty of where our country is heading it would be in the best interest if the upon resolution of the current Covid-19 situation to recommence at the same stage as he left. If bail variation was granted and when it is safe to do so, we would be happy for the client to return and finish the program with us.
client could be close to home and his family.
28. I take these letters into account.
Intensive Correction Order Assessment
29. An Intensive Correction Order (ICO) assessment report was ordered by the Magistrates Court earlier this year in relation to the fresh offences. The report, dated 8 October 2020, states that the offender was engaged with the case management process and was forthcoming with information as requested.
30. The report confirms that CYPS has conducted urinalysis twice a week since April 2020 and that the offender has never returned a positive result for illicit substances. The report further states that the offender has attended fortnightly counselling appointments with Karralika since July 2020.
31. The report assesses the offender’s risk of reoffending as high, due to elevated risk in
relation to substance use and mental health concerns. The report recommends the imposition of a curfew order, in addition to conditions related to participation in substance use counselling; monitoring of job search requirements and activities; encouragement to seek psychological treatment; and monitoring in relation to leisure activities and companions.
32. The report concludes with the following assessment of the offender:
[The offender] is a 31-year-old male with an extensive criminal history primarily consisting of
traffic and theft related offences.This Service holds concerns that [the offender] reoffended in a serious manner while under the supervision of a Good Behaviour Order. However, he has displayed active efforts in seeking and engaging in treatment related to his primary criminogenic needs of mental health and substance use, which is evident in his provision of regular negative urinalysis samples. [The offender] as also demonstrated positive engagement in the supervision process during the ICO assessment period.
[The offender] was unable to be assessed as suitable due to his accommodation circumstances, namely that ACT Housing had not provided official permission for him to reside there at the time of writing the report. Despite this, [the offender] has provided a copy of his ACT Housing application to this service, dated 29 September 2020.
It is considered that the structure and accountability afforded by an ICO would assist [the offender] in reintegrating into a law-abiding lifestyle, particularly in promoting his ongoing abstinence from illicit substance use.
33. Due to the accommodation issue, a further ICO assessment report was ordered. The updated report dated 17 November 2020 states that the offender is now an approved resident at his ACT housing property and is therefore suitable for an ICO. The offender has signed an undertaking to comply with the conditions of an ICO, if imposed. The updated report also states that the offender gained employment in November 2020 in a recycling plant.
Consequences of Breach
34. Section 110 of the Crimes (Sentence Administration) Act 2005 (ACT) provides the following:
110 Cancellation of good behaviour order with suspended sentence order
(1) This section applies if —
a) an offender’s good behaviour order was made under the Crimes (Sentencing) Act 2005, section 12 (3) (Suspended sentences) on the
offender’s conviction for an offence; and
b) a court is satisfied the offender has breached any of the offender’s good behaviour obligations.
(2) The court must cancel the good behaviour order and either—
a) impose the suspended sentence imposed for the offence; or b) re-sentence the offender for the offence. (3) If the offender has given security under the good behaviour order, the court may also—
a) order payment of the security to be enforced; and b) order the good behaviour order to be cancelled on payment of the security (if the term of the order has not already ended). (4) The Crimes (Sentencing) Act 2005 applies to the re-sentencing in the same way that it applies to the sentencing of an offender on conviction for the offence. (5) To remove any doubt, an offender re-sentenced by a court under this section has the same right of appeal as the offender would have had if sentenced by the court on being convicted of the offence.
35. I note that there is no presumption in favour of imposing the sentence that was suspended: Guy v Anderson [2013] ACTSC 5 at [83]-[87]. I further note that failure of the courts to act where there has been a clear breach of the bond by which the offender avoided being sent to prison is likely to bring suspended sentences into disrespect: Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379 at [23].
36. The factors relevant to the consideration of whether to impose the suspended sentence or re-sentence include:
(a) The proportion of the good behaviour order served; (b) Any rehabilitation attained prior to the breaching conduct; (c)
The nature of the offence which breached the order, including whether it is of similar conduct;
(d)
The relative seriousness of the offence causing the breach (whether imposing the sentence would be disproportional to the gravity of the breach);
(e)
The actual facts of the matter for which the offender was first sentenced: R v Beniamini (No 2) [2017] ACTSC 32 at [19];
(f)
Whether the breach evinces an intention to disregard the obligation to be of good behaviour or to abandon any intention to be of good behaviour;
(g) Whether the offender has received any warnings with respect to breaches; (h)
The level of understanding of the offender of his obligations under the terms of the order and the consequences of a breach: The Queen v PM (No 2) [2015] ACTSC 358 at [20]-[22]; and
(i) The nature of judicial and community resources previously devoted to the offender: R v Bennett [2017] ACTSC 104 at [11].
37. The prosecution submitted that the fresh offences, while relatively minor compared to the original offences, do demonstrate an intention to disregard the obligation to be of good behaviour: at [11].
38. The prosecution submitted that, in suspending the offender’s original sentence, the
Court gave the opportunity to demonstrate his commitment to his own rehabilitative
prospects, particularly with respect to the offender’s drug use, and that, in committing
the fresh offences, the offender has “flouted that opportunity”: at [13].39. In oral submissions, the prosecution did not oppose an adjournment for the purposes of obtaining an updated ICO assessment report, while also noting their previous submission, outlined in written submissions, that the suspended sentence ought be imposed.
40. The following statement of Refshauge J in Saga v Reid [2010] ACTSC 59 at [89] is relevant in this case:
In my view, it can be accepted that drug addiction is such that it can take a number of failed attempts at rehabilitation before it is successful. It is hard work and there is no short cut or quick fix.
41. While the offender has demonstrated noncompliance with previous court orders, the Court recognises that the path to drug rehabilitation is not linear. Between February 2020 and November 2020, the offender demonstrated real engagement in addressing his substance abuse issues. Further, imposing the suspended sentence would suspend the process of rehabilitation that the offender is currently undertaking in the community and would impact on his family responsibilities and employment responsibilities.
42. I note the two options under s 110(2), that is, to impose the suspended portion of the sentence or to re-sentence: see Barron v Laverty [2019] ACTSC 198; 346 FLR 442. In this case, it is not appropriate to impose the suspended sentence. It is appropriate for the Court to re-sentence.
43. An ICO will provide the structure necessary to support the offender in his continued rehabilitation. I note in this respect the statement of French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 that rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.
44. Finally, I underline that there will be significant consequences should the offender fail to comply with the order.
Re-Sentence
45. I note that, in re-sentencing the offender, I have had regard to the submissions in relation to objective seriousness and the circumstances of the offending made in the original sentence proceedings and outlined in R v BC [2019] ACTSC 233.
46. For the offence of aggravated burglary, the appropriate sentence is 11 months of imprisonment.
47. For the offence of theft, the appropriate sentence is six months of imprisonment.
48. The sentences of imprisonment will be served by way of ICO, and the offender will be subject to additional conditions to ensure continued engagement with rehabilitation services to address his mental health and substance use issues. The sentences will be partially concurrent.
Orders
49. I make the following orders.
50. The good behaviour order is cancelled.
51. In relation to the aggravated burglary (CC 18/14638):
(a) I note that a conviction has already been recorded. (b) The offender is re-sentenced to 11 months of imprisonment, commencing on 19 November 2020 and concluding on 18 October 2021. 52. In relation to the theft (CC 18/14639):
(c) I note that a conviction has already been recorded. (a) The offender is re-sentenced to 6 months of imprisonment, commencing on 19 May 2021 and concluding on 18 November 2021. 53. The imprisonment is to be served by way of an Intensive Correction Order pursuant to s 11 of the Sentencing Act. The offender is to abide by the core conditions under s 42 of the Crimes (Sentence Administration) Act 2005 (ACT). The offender is to comply with the following additional conditions:
(a) Supply samples of blood, breath, or saliva for alcohol and drug testing as directed; (b) Undertake any medical treatment and supervision as directed; and (c) Engage with educational, vocational, psychological, psychiatric or other programs or counselling as directed, particularly in respect of substance use and mental health. I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson.
Associate: Lauren Skinner
Date: 19 November 2020
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