R v Benjamin John Taylor (No 2)
[2008] ACTSC 97
•12 September 2008
R v BENJAMIN JOHN TAYLOR (NO 2)
[2008] ACTSC 97 (12 September 2008)
EX TEMPORE JUDGMENT
No. SCC 227 of 2007
Judge: Rares J
Supreme Court of the ACT
Date: 12 September 2008
IN THE SUPREME COURT OF THE )
) No. SCC 227 of 2007
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
v
BENJAMIN JOHN TAYLOR
ORDER
Judge: Rares J
Date: 12 September 2008
Place: Canberra
THE COURT ORDERS THAT:
Benjamin John Taylor (called “the offender” in this order) of 36 Tambo Street, Kaleen, ACT is convicted on one count of contravention of protection order and is sentenced to a total term of imprisonment of 12 months.
The sentence is to be suspended and the offender released immediately on condition that:
(a)the offender sign an undertaking to comply with the conditions of this order;
(b)the offender be of good behaviour for a period of 3 years from today;
(c)the offender give security for $2,000 for compliance with this order;
(d)the offender comply with the offender’s good behaviour obligations, including the core conditions of the order, under ss 85 and 86 of the Crimes (Sentence Administration) Act 2005;
(e)the offender accept supervision of ACT Corrective Services and obey all reasonable directions of that service for the period of good behaviour;
(f)the offender present himself for assessment for and if found suitable, complete the ACT Corrective Service Family Violence Program;
(g)the offender present himself for assessment for and if found suitable, complete any program deemed to be necessary for his rehabilitation by ACT Corrective Services, in particular in relation to anger management and cannabis issues;
(h)the offender undertake random urinalysis;
(i)the offender undertake 120 hours of community service to be completed on or before 12 September 2009;
(j)the offender pay the amounts of $1,000 on each of the two good behaviour orders made by the Court on 22 July 2005 to be paid on or before 12 March 2009.
Mr Taylor, the jury accepted the Crown case that you drove past Ms Perrin’s residence in contravention of the domestic violence order on the afternoon of 16 January 2007 and that you yelled at her and summonsed Mr Massey to fight with you in circumstances where you were required by the terms of the order not to approach within 100 metres of Ms Perrin. I am satisfied beyond reasonable doubt that you intended to be where you were, as the jury found you, and to do the acts, the subject of the verdict which the jury returned.
A domestic violence order is a very important order available to protect persons in our community. Such orders must be obeyed as a fundamental part of the law.
In your circumstances, the offence was committed, as you have recognised in your evidence before me today, when you were bound by two good behaviour orders, made by Connolly J on 22 July 2005 and that accordingly, you breached those orders. As a result, it falls to me to have to re-sentence you under the provisions of the Crimes (Sentence Administration) Act 2005 (ACT), ss 107(1) and 110.
Because the jury verdict found you guilty of the offence of contravening the domestic violence order, s 107(1) provides that I should deal with you in accordance with s 110. That provides that I must cancel the two good behaviour orders made by Connolly J, and either impose the suspended sentences, which he had imposed for those offences, or re-sentence you. And I may also, because you have given security of $1,000 for each of those two orders, order that you pay that security.
Part of the orders made by Connolly J required you to serve six months’ imprisonment. In my opinion, it is not appropriate that you serve any further immediate term for the reasons that I am to give. However, I must re‑sentence you on the basis that the aggravated robbery and assault occasioning actual bodily harm, which were two separate offences you committed in 2004, are now open again for further sentencing in light of your breach of the good behaviour orders.
I have had regard to the remarks of Connolly J in imposing the sentences that he did on 22 July 2005. I have also had regard to your evidence today which, I think, for the first time has demonstrated a recognition in fulsome terms of the very serious and wrong behaviour in which you engaged on each of the two occasions of offending there and your subsequent conviction by Crispin J after you committed the current offence as well as in respect of the current offence.
One of the purposes of imposing good behaviour orders under the Crimes (Sentencing) Act 2005 (ACT) and suspending terms of imprisonment is to enable a person who has committed a crime to show that they are ready and willing to rehabilitate themselves into the community. Such a purpose cannot be shirked by the court in considering an appropriate sentence in the situation which you have brought upon yourself today.
I note that each of the two judges of the court who have sentenced you in the past have indicated that they were giving you suspended sentences, at least in part, in the case of Connolly J and good behaviour orders to assist you in having a chance to reform your life. Each of them noticed that at the time they were dealing with you, you appeared to be mindful of that chance that was being offered you.
But on each occasion you have slipped afterwards. So today, the situation you have brought before the court, because it is your conduct that I am dealing with and the consequences of your conduct, are that you committed another crime while you were promising the court to behave well, to obey the law and obey the directions of the probation service. Although ACT Corrective Services did not bring you before the court for being in breach, it did indicate that you were not exactly a model offender under their supervision as at the time you were before me on 2 May this year.
I am required to take into account a number of matters in imposing a sentence on you, under s 33 of the Crimes (Sentencing) Act 2005. I am mindful that the two offences which you were sentenced by Connolly J for involved very serious physical violence being perpetrated on other members of the community by you. However, I am satisfied that the sentencing remarks of Connolly J have adequately and comprehensively addressed the issues that that offending raised and that your evidence today demonstrates your own appreciation of how wrong your conduct was, the damage that it caused to the victims. I am satisfied that you are genuinely remorseful for what you did.
I am also mindful that the offence for which the jury convicted you in April this year did not involve, thankfully, any physical violence. It did not involve any apparent emotional or other harm being inflicted on anyone, although your behaviour was completely wrong and inappropriate. You caused annoyance and irritation to both Ms Perrin at the time and Mr Massey, although he was not a person protected by the order. However, I am satisfied that the conduct was not of the order you had previously engaged in, although it was a flagrant violation of the domestic violence order which you knew of and chose deliberately to breach.
The pre-sentence report, and evidence of Mr Monaghan, yourself, and the letters from you father and partner, have satisfied me that you have made a very serious and concerted effort to try and turn your life around. And I am sure that your understanding, perhaps from what I said on the last occasion, that you would go to jail if you did not, will no doubt have assisted you there. I am mindful that that assistance (of having that threat clearly over your head in the future), will help you to continue getting your life into order as you are clearly doing now and doing in a way that is demonstrably an improvement over the previous efforts you have made because you have told me, which I accept, that you are not taking cannabis or alcohol at the moment. And hopefully, you have seen what destruction to your own life and the havoc you have wreaked, not only in it, but the pain you have caused your father and your mother and your partner and your child by using these substances and abusing yourself and them with those substances.
I am mindful that you now have employment, that you have paid for your own attendance with Ms Perrin at Relationships Australia for a course, that you see and recognise the benefit that outside assistance of the kind offered by programs and courses which ACT Corrective Services can give you in addition will help you reform your life and show you ways in which you can deal with situations. You cannot, I think you now appreciate, take the law into your own hands, ignore the law, do things that just show to society you are not prepared to accept its bounds and put yourself in a position where you run the risk of doing not only yourself harm but other people harm.
I have had regard to the loss and damage that Mr Bambach, who was the victim of an unprovoked road rage assault by you for which Connolly J sentenced you, has suffered. I am satisfied that his Honour appropriately dealt with that financial consequence and I do not consider, in all the circumstances, that I should make any further financial imposition by way of a compensation order on you for that. I am also mindful that you have understood and recognised the effect of the offences on both Mr Bambach and the persons who were attacked by you and the two others in the aggravated robbery described in Connolly J’s sentencing remarks. There is no question that you are clearly responsible for the commission of each of the offences now before me for re-sentencing.
I have also taken into account the fact that you pleaded not guilty to the offence of breaching the domestic violence order and that required a trial to be had and for, among others, Ms Perrin then who was living with you, to give evidence in which she was confronted by having to be cross-examined. I am mindful of the prior criminal history that you have had and also of the fact that you now have, as the evidence before me shows, the love and support of your families, both Ms Perrin’s and your own, and you and Ms Perrin, together, are now contributing to a good wholesome home life to provide for your daughter and the child who is to come in January. From the pre-sentence report prepared by Mr Monaghan for today, I understand you have the financial capacity to pay a fine or, as I propose to do, to meet the recognizance sums which you should forfeit of $2,000 in total for breaching the good behaviour orders Connolly J made.
As I have discussed this morning, in asking questions of Mr Monaghan, yourself and of counsel, it is important for the court to consider the probable effect that any sentence or order I make will have on your family and your dependants and also on yourself. I am concerned by what Mr Monaghan told me that I should not impose a punishment on you that would, in effect, overwhelm you or prevent you from really being able to continue along the very positive, indeed he described, “terrific” improvement you have made in your life since you were before me on 2 May this year. I, too, do not wish to undermine that. But, I must craft an order that appropriately reflects the criminality in which you have engaged, its seriousness and shows the community that there is a significant consequence to those who breach its laws.
In many, many cases before the courts, the subjective impact of a punishment on an offender once brought to justice can be seen to be great. But to do justice according to law, must be to uphold the laws themselves and their purpose to ensure that we all obey the law. The community must know that offenders, whatever their personal circumstances are, receive a punishment that is appropriate and recognises the seriousness of the offending and the breaches of the community’s standards embodied in its criminal laws.
I am impressed by you having voluntarily undertaken the Relationships Australia course and paid for it since you were here on the last occasion. And I am impressed by the co-operation and diligence you have shown with complying in the liaisons you are having with Corrective Services personnel and the family services personnel, quite outside the regime of what is going on in these proceedings.
I am also conscious that you are concerned, through your own family’s history of a mixed connective tissue disorder, that the current pain you are suffering may be connected to that condition. In appearance, you look to me, I may say, more gaunt than you did in April and May this year when you were before the court. I am also impressed that you have taken the step to get yourself employment and have accepted the suggestion which I raised that you would undertake a community service order if I considered that to be appropriate. As I have said, I am satisfied, and I believe you when you say you are genuinely remorseful for what you have done.
Sentencing a person for a number of crimes requires the court to take into account the various matters that I have referred to and that are in evidence before me. I have considered all of those circumstances. At the end of the day, the appropriate penalty is a matter for the sentencer’s instinctive synthesis having regard to all matters which he or she must take into account: see Markarian v The Queen (2005) 228 CLR 357 at 373-375 [37] per Gleeson CJ, Gummow, Hayne and Callinan JJ.
I note that the pre-sentence report indicated that there was no rehabilitation program required at this stage and that although you had given a verbal undertaking to comply with periodic detention obligations having regard to the sentences I have imposed, and their overall effect, I am of opinion that it is not appropriate to require you to be sentenced to undertake periodic detention at this stage.
A suspended sentence of imprisonment is recognised under the common law and particularly under s 10(2) of the Crimes (Sentencing) Act 2005 as being an order that the court can make only if it is satisfied, having considered possible alternatives that no other penalty is appropriate. There can be no doubt that a penalty of imprisonment of some kind must be imposed for your offending for which Connolly J sentenced you. But I also think that in the circumstances of this case of the breach of the domestic violence order, a sentence of imprisonment is called for because of its commission by you while on good behaviour bonds and its deliberateness.
That crime carries a penalty of up to five years’ imprisonment, so it is one which the community regards as serious, albeit that as I have said, it is because of the aggravating factors of your breach of the previous good behaviour bonds rather than any infliction of actual damage that the matter assumes the seriousness that it does. However, I consider that I must suspend the order I propose to make for your imprisonment wholly but impose conditions that will require you to submit to a community service order and other conditions for your rehabilitation which the ACT Corrective Services may impose on you.
Mr Taylor would you would stand up please?
I enter a conviction in respect of the jury’s verdict that on 16 January 2007 at Canberra in the Australian Capital Territory, Benjamin Taylor was subject to a protection order made by consent under the provisions of the Domestic Violence Protection Orders Act 2001 (ACT) and, after having been served with the order, engaged in conduct that contravened the protection order.
In respect of the charge of aggravated robbery, on which Connolly J sentenced you on 22 July 2005, I sentence you to 18 months’ imprisonment to date from 22 July 2005 suspended after serving the time which you spent in prison immediately following the conviction recorded on 22 July 2005 and on you entering a recognizance in your own name of $2,000 to be of good behaviour for five years from 22 July 2005 (so that will take you to 2010) and that you obey the directions of the Director of ACT Corrective Services, which I will impose at the end of making these orders.
On the charge of assault occasioning actual bodily harm for which Connolly J sentenced you on 22 July 2005, I sentence you to 12 months’ imprisonment to date from 22 July 2005 suspended after serving, concurrently with the sentence I have just imposed, the time you actually spent in prison and that on release, you enter into a recognizance for yourself of $2,000 to be of good behaviour for a period of five years from 22 July 2005 and that you obey the directions of the Director of ACT Corrective Services, which I will impose at the end of these orders. I order you to pay the sum of $300 compensation within 12 months of 22 July 2005 (but I note that if that sum has already been paid, being the sum Connolly J ordered you to pay, it is not my intention to require any further payment. On the other hand, if it has not been paid it is my intention that you pay it).
On the charge of contravening the domestic violence order, I impose a sentence of 12 months’ imprisonment which I suspend wholly on the following conditions that you:
(1) be of good behaviour for a period of three years from today and that you give a surety for that in the sum of $2,000. It is a condition of your good behaviour order that you undertake community service of 120 hours to be completed on or before 12 September 2009;
(2) accept the supervision of ACT Corrective Services and obey all reasonable directions;
(3) present yourself for assessment for, and if found suitable, complete ACT Corrective Services Family Violence Program;
(4) present yourself for assessment for, and if found suitable, undertake any program that is deemed to be necessary by ACT Corrective Services and, in particular, in relation to anger management and cannabis issues; and
(5) undertake random urinanlysis.
I order that the amounts of $1,000, on each of the two good behaviour orders made by the court on 22 July 2005, be paid by you in accordance with those orders.
Ms Warwick can address about time to pay.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Rares
Associate:
Date: 24 September 2008
Counsel for the Crown: Ms J Davidson
Solicitor for the Crown: Director of Public Prosecutions for the ACT
Counsel for the Accused: Ms T Warwick
Solicitor for the Accused: Perkins & Saunders
Date of hearing: 12 September 2008
Date of judgment: 12 September 2008
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