R v Bessant
[2020] ACTSC 365
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Bessant | ||||||||||||||||||||||||||||||
| Citation: | [2020] ACTSC 365 | ||||||||||||||||||||||||||||||
| Hearing Date: | 11 September 2020 | ||||||||||||||||||||||||||||||
| Decision Date: | 25 September 2020 | ||||||||||||||||||||||||||||||
| Before: | Refshauge AJ | ||||||||||||||||||||||||||||||
Decision: |
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Mr Bessant be required to sign an undertaking to comply Bessant accept supervision from the Commissioner of ACT Corrective Services or his delegate for 2 years, 5 months and 14 days or such lesser period as the person supervising him considers appropriate, and obey all reasonable directions of the person supervising him, including as to counselling or further treatment.
16. For the treatment and supervision part of the Drug and Alcohol Treatment Order, Mr Bessant be ordered to comply with the core conditions set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) for the term of the Drug and Alcohol Treatment Order, and complete such treatment including counselling, medical treatment, urinalysis, attendance at programs and such other program of treatment as agreed with the Treatment Order Team from time to time and as ordered by the Court.
17. Mr Bessant be ordered to comply with the directions of the Court about attendance at Court in person or by electronic means and about any other treatment or supervision matter
from time to time.
18. Mr Bessant be directed to attend Court on 2 October 2020 at 11:30 am.
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – burglary – joint commission burglary – theft – dishonestly taking and using a motor vehicle without the owner’s |
| consent – pleas of guilty – reparation order – Drug and Alcohol | |
| Treatment Order made | |
| Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), ss 7, 12A, 19(3), 46J, 80W, |
| 80Y | |
| Crimes (Sentence Administration) Act 2005 (ACT), s 85 Criminal Code 2002 (ACT), ss 308, 311, 312(a), 318(1) | |
| Cases Cited: | Dawson v The Queen [2019] ACTCA 9 |
| Hoskins v R [2016] NSWCCA 157 In the Matter of an Application for Bail by Johnson [2011] ACTSC 12 Islam v The Queen [2014] ACTCA 2 Love v The Queen [2012] ACTCA 8 Markarian v The Queen [2005] HCA 25; 228 CLR 375 Millard v The Queen [2016] ACTCA 14 Okwechime v Sindel [2009] ACTSC 162 R v Crawford (No 1) [2020] ACTSC 245 R v Ellis (1993) 68 A Crim R 449 R v Forrest (No. 2) [2017] ACTSC 83 R v Hawkins [2015] ACTSC 333 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v John [2017] ACTSC 144 R v Lockwood [2018] ACTSC 288 R v McMahon [2014] ACTSC 280 R v Thorne [2016] ACTSC 217 Saga v Reid and Collett [2010] ACTSC 59 | |
| Parties: | The Queen (Crown) Robert George Bessant (Accused) |
| Representation: | Counsel |
| K Reardon (Crown) | |
| J De Bruin (Accused) | |
| Solicitors | |
| ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
| File Numbers: | SCC 159 of 2020 |
| REFSHAUGE AJ: | |
| Introduction |
1. The accused before the Court, Robert George Bessant, engaged in somewhat of a crime spree on 13 September 2019, and later on 20 September 2019, resulting in nine dishonesty charges being laid against him. He has now pleaded guilty to those charges, namely, one offence of aggravated burglary, three burglary offences, one of which is a joint commission burglary, four offences of theft associated with the burglaries, and one offence of dishonestly taking and using a motor vehicle without the owner's consent.
2. I have before me the ACT Magistrates Court bench sheets for the charges and a Certificate of Committal as well as an Agreed Statement of Facts, Mr Bessant's Criminal History, a Drug and Alcohol Treatment Assessment from ACT Corrective Services dated 4 September 2020, a Suitability Assessment Report for the Drug and Alcohol Sentencing List dated 9 September 2020 and an attached case plan, both of which have been prepared by Alcohol and Drug Services of Canberra Health Services,
and I will refer to these two Assessments as “Suitability Assessments” (being ‘a drug
and alcohol treatment assessment’ under s 46J of the Crimes (Sentencing) Act 2005
(ACT) (the Sentencing Act)), as well as a letter dated 8 September 2020 from Wayback Ltd, a drug and alcohol rehabilitation service based in Harris Park, Sydney, New South Wales.
3. The tender of none of those documents was opposed and the contents of none of them was challenged. Accordingly, I have used them and rely on them for my findings.
The Facts
4. Very early on the morning of 13 September 2019, at 3 am, Mr Bessant and another person entered the secure yard of a business in Hume and forcibly entered a white utility vehicle on the premises. They then entered the building of the premises, searched through the drawers and took a wall mounted television valued at $1,500. They then drove off through the gate causing a significant amount of damage. Police recovered the white utility vehicle the next day. These facts constituted the offences of aggravated burglary, the associated theft and dishonestly taking and using a motor vehicle without the owner's consent.
5. Later that morning, Mr Bessant entered a restaurant in Dickson and then a neighbouring shop which sells mixed drinks and shakes. He did so by prying open the
front doors of each of the premises with a “jemmy bar” (also known as a crowbar). He
stole a cash drawer from the restaurant, and a cash drawer and a Bluetooth speaker from the next-door business. The value of the property is not known. These facts constituted two burglaries and the associated thefts.
6. At about 1:00 pm on 20 September 2019, Mr Bessant, in company with a female, rode a bicycle to a residential address in Turner. Mr Bessant forced the door open and the female entered the premises. She then stole two packages which contained hats and women's clothing valued at $1,852.50. These facts constituted Mr Bessant being jointly involved with the burglary of the premises by the female and the associated theft. A Reparation Order has been sought. One half of the total value of the items stolen is payable by Mr Bessant, namely $926.25, subject to there being no other compensation available to the victim of the burglary and theft.
The Proceedings
7. On 10 October 2019, a warrant was issued for Mr Bessant's arrest to face the charges arising out of the facts I have set out above. It appears the warrant was executed on or about 23 December 2019, when Mr Bessant first appeared before the ACT Magistrates Court for these offences. He was, unsurprisingly, refused bail and remanded in custody.
8. After an adjournment, he entered a plea of not guilty to each offence on 7 February 2020. He remained in custody. It is not clear on the material before me, but it seems that these pleas were entered prior to the provision to him of the prosecution brief of evidence. After further adjournments, he appeared in this Court on 7 April 2020, when he was ordered to be released on bail on 9 April 2020 to travel directly to the residential rehabilitation facility conducted by Wayback Ltd and enter its program.
9. It appears that Mr Bessant's lawyers prepared and submitted representations to the ACT Director of Public Prosecutions. On 28 July 2020, after 9 adjournments in the Magistrates Court, he entered pleas of guilty on the 10th mention to each of the current charges, and when the prosecution did not request that they be dealt with summarily, the Magistrates Court committed Mr Bessant to this Court with the expectation that the proceedings be dealt with in the Drug and Alcohol Sentencing List.
10. He appeared in this Court on 30 July 2020, when Suitability Assessments of him were ordered to be prepared. Those reports came before the Court, as noted above at [2], and I heard sentencing submissions on 11 September 2020.
The Offences
11. Aggravated burglary is an offence contrary to s 312(a) of the Criminal Code 2002 (ACT), which provides for a maximum penalty of 20 years' imprisonment or a fine of $300,000, or both. In this case, the element of aggravation was that Mr Bessant was accompanied by another person when he entered the premises from which he stole property.
12. Burglary is an offence against s 311 of the Criminal Code and attracts a maximum penalty of 14 years' imprisonment or a fine of $224,000, or both.
13. Theft is prohibited by s 308 of the Criminal Code for which the maximum penalty is 10 years' imprisonment or a fine of $224,000, or both.
14. Dishonestly taking and using a motor vehicle without the owner's consent is made an offence by s 318(1) of the Criminal Code and renders Mr Bessant liable for a maximum penalty of 5 years' imprisonment or a fine of $80,000, or both.
15. The maximum penalties for offences are an important indicator provided by the legislature as to the seriousness with which the courts are to consider the offences (see Markarian v The Queen [2005] HCA 25; 228 CLR 375). Nevertheless, each offence has, itself, a range of seriousness in the manner in which they may be committed and the circumstances under which they are committed. They are often assessed by the presence of a variety of factors which may aggravate their seriousness or occasionally mitigate it, though the absence or presence of aggravating factors is usually what assists a court in determining the seriousness with which the particular conduct which constitutes the offence is to be regarded. In particular, it allows a court to set the appropriate sentence, having regard, of course, to the other matters which a sentencing court is required to consider in its task.
16. Thus, as noted in decisions such as R v Forrest (No 2) [2017] ACTSC 83 at [76]-[81], and the cases there cited, some of the relevant considerations as to the seriousness of burglary, including aggravated burglary offences, include: the nature of the premises, whether any persons are there or likely to be there to have been disturbed, the motivation for committing the offence, the damage done on entry or while there, the hour of the day during which the entry is effected, and the level of premeditation or planning. Such offences do have consequences, of course, as well as affecting those who are the victims of them, who have consequences such as the raising of insurance premiums (see R v Hawkins [2015] ACTSC 333 at [49]-[50]).
17. The offence of theft, and the related offence of dishonestly taking and using a motor vehicle without the owner's consent, have similar considerations but also include matters such as the value of the property stolen, whether it has particular sentimental value, inconvenience or other special loss it may cause (see R v John [2017] ACTSC 144 at [45]).
18. In the case of the offence of aggravated burglary, there was no evidence that suggests particular planning, though it does not seem to have been an entirely opportunistic offence. There was no evidence of particular damage done during entry or while on the premises. The offenders did, however, cause a considerable amount of damage when leaving the premises and this is relevant to the seriousness of the offence.
19. Mr Bessant and his co-offender took the motor vehicle. I have no evidence as to its likely value, though a utility vehicle, as it was, is likely to be of reasonably substantial value. They also took a television, the value of which was about $1,500. The premises were commercial premises and not residential premises, the latter being generally regarded as rendering burglary a more serious version of the offence. Similarly, there were not, nor were there likely to have been, any persons on the premises.
20. Mr Bessant appears to have been heavily dependent on illicit drugs at the time of the offending and this would seem to be the motivation for the offence. He says that his judgment was impaired at the time of the offending.
21. The motor vehicle that was taken was ultimately found the next day. It does not seem to have been driven particularly far. It may, however, have been used in the burglaries at Dickson, as a jemmy bar of the kind used in those offences was found next to the utility vehicle when it was recovered. Its use might therefore be inferred from its finding. Mr Bessant was, at the time of the offending, subject to a Good Behaviour Order which means that the offences were somewhat more serious.
22. The two burglaries at Dickson were relatively unremarkable versions of the offence carried out on commercial premises. Some damage can be assumed from the use of the jemmy bar but there was no evidence of particular damage. The property stolen does not appear to have had particular value.
23. The third burglary which was committed by Mr Bessant's co-offender and for which he was liable as a party, was of a residential premise. Though later in the evening, not at a particularly late hour nor early in the morning, either of which times would have been aggravating. The entry to the premise was quite limited and though the front door was forced open using a tool, there was no evidence of any particular damage. The property stolen was not of great value but was by no means insignificant for an individual.
24. I did not have any Victim Impact Statements. The Court can understand, in general terms, the effect that such offences can have, namely the feelings of invasion of privacy and of the premises, and the inconvenience caused. Without such statements, however, it is neither possible nor appropriate to assume any particular or especially aggravating feature of the offences so far as damage is concerned.
25. The reparation sought does show the modest cost of the offending, though it cannot be assumed to be the total damage and loss caused.
Subjective Circumstances
26. Mr Bessant was born nearly 34 years ago, in the Cessnock, New South Wales area, the youngest of four children. One of his sisters died when he was 13 years old. It has had a serious effect on him, and he dropped out of school in Year 7, around the time
of his sister’s death.
27. He was raised primarily by his mother and reported, to the authors of the various helpful reports that I had, that he had a relatively stable homelife. He has had no contact with his father. He seems to have lost contact with his mother and sisters. When he dropped out of school, he started to associate with some antisocial peers.
28. He appears to have ceased any formal education since then. Mr Bessant has had some employment, but it seems to have been quite limited. He worked for four years as a groundskeeper until 2013 and has been unemployed since then. He appears to have liked the work and, if the opportunity presented itself, would wish to find similar employment again.
29. Mr Bessant has had a significant relationship for 12 years and has an eight-year old daughter from the relationship with his former partner. They moved to Canberra in 2016 for a fresh start but the relationship then ended, and he has been single since. Until 2019, he was the primary carer for his daughter and hopes to regain some shared custody with her mother. Mr Bessant has now resided for some time in the ACT and has made an application through Housing ACT for transfer to a home nearer to his daughter who lives with her mother.
30. Mr Bessant experiences some depression. He sought medical advice on a number of occasions and has been prescribed medication, which seems to have had a good effect, and he proposes to continue having the depression managed by a General Practitioner.
31. Mr Bessant commenced his illicit drug use when he was 14 years old. He started smoking cannabis then. His usage steadily increased until he was 29, when he ceased using it, as he then started to care for his daughter. He started using methamphetamines at age 27 and began using them once a week, but the usage steadily increased also to daily use, until he was arrested. Although methamphetamine was his primary drug, he used heroin up to three times a week over the eight months prior to his arrest, partly to help him come down from methadone use and to sleep.
32. Mr Bessant was released on bail in April 2020, as I have mentioned (at [8]), to attend the residential rehabilitation program at Wayback Ltd. He returned just before his appearance at his sentencing hearing. A letter from his counsellor there reported that he had been fully compliant with the program and participated diligently. He has shown insight into the context for the development of his addiction and expressed a desire to his counsellor to improve his life. He did not use drugs while on the program.
33. Mr Bessant has a relatively significant criminal history. Most of it is, unsurprisingly, in New South Wales. [Redacted for legal reasons]. He has been found guilty or convicted of 30 offences. [Redacted for legal reasons].
34. There were, however, some more serious offences, including malicious wounding, breaking and entering a building and stealing from it [redacted for legal reasons]. More recently, however, the offences have included assaults, including serious assaults. That some of the offences he has now committed are of a similar kind is a matter of concern. As the Court of Appeal pointed out in Millard v The Queen [2016] ACTCA 14, repeat offending cannot result in a simple increase in the penalties imposed though it may be appropriate. Repetition of offences is a measure of the seriousness of the circumstances of subsequent offending. Antecedent criminal history cannot, however, be given such weight as to lead to a disproportionate penalty for the offence. Of course, an offender cannot be punished twice for the same offence which is a risk that a sentencer must avoid when dealing with increasing penalties or subsequent offending.
35. Mr Bessant has also been required to complete two drug and alcohol programs and had been previously sentenced, on 1 June 2015, to a Drug Court program in the Newcastle District. It is also significant that, as his criminal record shows, only 7 days before the first of the offences for which I am to sentence Mr Bessant, he was released on a 12 month Good Behaviour Order in the ACT Magistrates Court for an offence of going equipped for theft.
36. Although he has shown a history of poor engagement with some prior court orders, he was able to comply with the conditions of the Good Behaviour Orders made in 2016. His performance on bail since April 2020 has revealed no non-compliance, which is significant in marking support for his assertions of a wish for rehabilitation and to address his drug addiction and criminality.
Sentencing Practice
37. I have pointed out before in cases such as In the Matter of an Application for Bail by Johnson [2011] ACTSC 12 at [4], the range of circumstances of dishonesty offences such as burglary, including aggravated burglary, theft, and similar offences such as dishonestly taking and using a motor vehicle without the owner's consent, is so wide that it is difficult to identify, with any reasonable utility, a singular sentencing practice.
38. Accordingly, it is unsurprising that neither counsel, despite their detailed, pertinent and helpful submissions, provided any comparable cases. Nevertheless, it does appear
that over the years, some general guidance has been given by what is called ‘the collective wisdom of … judges’ who sit in the sentencing jurisdiction (R v Ellis (1993)
68 A Crim R 449 at 460).
39. Thus, in R v McMahon [2014] ACTSC 280 at [92], I explained that a range of 9 months
to 2 years and 11 months’ imprisonment was what was generally expected for offences
of burglary, and referred to the Court of Appeal's comments in Love v The Queen [2012] ACTCA 8 at [13] that sentences of around 18 months' imprisonment for ordinary domestic burglaries was generally indicated.
40. This is consistent with the more recent case of R v Lockwood [2018] ACTSC 288 at [49], dealing with the more serious version of the offence, where it was pointed out that the range for aggravated burglary was generally between one year and two years and six months' imprisonment.
41. It was also clearly noted in Dawson v The Queen [2019] ACTCA 9 at [35] that it was a common, but not an invariable practice of the court, that a sentence for a theft offence committed during a burglary would be concurrent with the sentence for the burglary offence.
Consideration
42. Any approach to sentencing must have regard to the statutorily legislated purposes of sentencing set out in s 7 of the Sentencing Act.
43. In this case, it is appropriate to have regard to adequate punishment. Given Mr Bessant's prior history of offending, some element of specific deterrence is appropriate. The prevalence of offences such as those for which Mr Bessant is to be sentenced, suggests some general deterrence is also appropriate.
44. The victims are required to have their harm recognised, though a significant element of that is likely to lie in payment of reparation under s 19(3) of the Sentencing Act. Nevertheless, the further protection of the community, by preventing repeat offending, especially from an offender who has shown a propensity to such offending in the past, must play a part. While deterrence is one means designed to achieve that, Mr Bessant's expressed intention to reform, and the success he has already shown in seeking out and then undertaking a rehabilitation program, taken together with his progress in it, strongly suggests that rehabilitation should play a prominent part in the sentencing process. This mirrors the approach in Saga v Reid and Collett [2010] ACTSC 59 at [90], where such steps of reform justified a rehabilitative approach.
45. I note that Mr Bessant pleaded guilty to all offences. This is relevant. It is not a plea at the earliest opportunity, but it was entered into in the ACT Magistrates Court and prior to any hearing date being set. Despite the earlier pleas of not guilty, it was made before the charges were committed to this Court. While many of Mr Bessant's activities were captured on CCTV footage and stolen property from the offences were found in his home, this did not provide an overwhelming case for the Crown, leaving issues of identification and continuity, at the very least, to be agitated. It was very properly acknowledged by counsel for the Crown that there was significant utilitarian value in the pleas.
46. Mr Bessant has spent 108 days in custody. This should also be taken into account. Usually, and appropriately, that is addressed by backdating the sentence. For reasons set out in R v Crawford (No 1) [2020] ACTSC 245 at [91]-[111], backdating will not prevent consideration of a Drug and Alcohol Treatment Order under s 12A of the Sentencing Act.
47. In addition, Mr Bessant has spent 156 days in the Wayback Ltd facility. While not strictly custodial, it remains a relevant matter where he was in a facility, and therefore not in the community with the freedom that that brings, and subject to a challenging regime of reform and other elements of the program.
48. There is some, but by no means direct, comparison with other such confinements such as strict conditions of bail (see Hoskins v R [2016] NSWCCA 157 at [36]) or immigration detention (see Islam v The Queen [2014] ACTCA 2 at [31]). Indeed, in Okwechime v Sindel [2009] ACTSC 162 at [65], Penfold J pointed out the appropriateness of taking time in residential rehabilitation into account. I do not think that can be done by backdating the sentence, but it can be by taking that period into account when setting the sentence itself.
49. There is no doubt that Mr Bessant's drug addiction has contributed significantly to his criminality. That addiction began at an early stage, though not at a very early stage, but before he had a real opportunity to approach it in a mature and adult way. This is a relevant factor in sentencing (see R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at 398; [273](c)).
50. Finally, there are multiple offences for which Mr Bessant is to be sentenced. This is always a challenge as it requires attention to a complex sentencing exercise. In the first place, it requires that I impose an appropriate sentence for each offence, but I must consider the length of each sentence to ensure that, where there are overlapping elements with other offences, Mr Bessant is not punished twice. This is relevant with the thefts associated with the burglaries.
51. I have then reviewed the length of the total term of imprisonment which I have arrived at to ensure that the principle of totality is respected and that the total sentence arrived at is adequate to reflect the criminality of the offences committed but not more than that, and that the total sentence is not excessive but will leave open the realistic prospect of reform and hope for Mr Bessant to achieve his goals when he is released into the community. This requires the sentence to reflect the total criminality but be proportionate to it and may require the concurrency of some sentences with others in order that it may be achieved.
52. Compensation of $926.25, being half of the total amount sought for loss of the contents of the boxes stolen from Turner, should also be the subject of a Reparation Order under s 19(3) of the Sentencing Act. The other half having been paid or is payable by the co- offender.
Sentence
His Honour then spoke directly to the accused:
53. Mr Bessant, please stand.
54. I convict you of aggravated burglary at Hume on 13 September 2019. I sentence you to two years' imprisonment, to commence on 9 June 2020 to take account of the period of pre-sentence custody. Had you not pleaded guilty I would have sentenced you to 28 months' imprisonment.
55. I convict you of dishonestly taking and using a motor vehicle without the owner's consent on 13 September 2019. I sentence you to 10 months' imprisonment, to commence on 9 October 2021. That is to be cumulative as to two months on the sentence for aggravated burglary. Had you not pleaded guilty I would have sentenced you to 12 months' imprisonment.
56. I convict you of theft on 13 September 2019 at Hume. I sentence you to five months’
imprisonment, to commence on 9 April 2022. That is to be cumulative as to one month on the sentence for dishonestly taking and using a motor vehicle without the owner's consent. Had you not pleaded guilty, I would have sentenced you to six months' imprisonment.
57. I convict you of the first burglary at Dickson on 13 September 2019. I sentence you to 18 months' imprisonment, to commence on 9 August 2021. That is to be cumulative as to five months on the sentence for theft at Hume. Had you not pleaded guilty I would have sentenced you to 21 months' imprisonment.
58. I convict you of the theft from the first burglary at Dickson on 13 September 2019. I sentence you to three months' imprisonment, to commence on 9 December 2022. That is to be cumulative as to one month on the sentence for the first burglary at Dickson. Had you not pleaded guilty I would have sentenced you to four months' imprisonment.
59. I convict you of the second burglary at Dickson on 13 September 2019. I sentence you to 18 months' imprisonment, to commence on 9 February 2022. That is to be cumulative as to six months on the sentence for the first burglary in Dickson. Had you not pleaded guilty, I would have sentenced you to 21 months' imprisonment.
60. I convict you of the theft during the second burglary at Dickson on 13 September 2019. I sentence you to three months' imprisonment, to commence on 9 May 2023. That is to be wholly concurrent on the sentence for the second burglary in Dickson. Had you not pleaded guilty, I would have sentenced you to four months' imprisonment.
61. I convict you of the burglary at Turner on 20 September 2019. I sentence you to 20 months' imprisonment, to commence on 9 July 2022. That is to be cumulative as to seven months on the sentence for the second burglary at Dickson. Had you not pleaded guilty, I would have sentenced you to two years' imprisonment.
62. I convict you of theft during that burglary on 20 September 2019. I sentence you to five months' imprisonment, to commence on 9 October 2023. That is to be wholly concurrent on the sentence for that burglary. Had you not pleaded guilty I would have sentenced you to six months' imprisonment.
63. Finally, I require you to make reparation by payment of $926.25 to Ms Yangxue Sun, as arranged through your lawyer. That amount is not to be paid before 9 October 2020 and either party is given liberty to apply to set aside that Order if cause is shown.
64. Mr Bessant, you may be seated.
65. That is a total sentence of three years and nine months. Since Mr Bessant has been found otherwise eligible for a Treatment Order, that is within the term of imprisonment for which such an order is permissible.
66. I note further that Mr Bessant is not subject to any other sentencing order. Accordingly, it is appropriate for me to consider whether I should make a Treatment Order. I have carefully read and considered the helpful and comprehensive Suitability Assessments prepared by officers of ACT Corrective Services and the Alcohol and Drug Services referred to above (see [2]).
67. I have, in particular, carefully considered the recommendations made in them, especially that Mr Bessant is suitable for a Treatment Order. I am satisfied that Mr Bessant is dependent on illicit drugs and that his dependency substantially contributed to the commission of the aggravated burglary offence and indeed, the other offences.
68. I am also satisfied that Mr Bessant will live in the ACT for the next 12 months. I have not identified any indicators of unsuitability for a Treatment Order set out in Table 46K of the Sentencing Act. I note that Mr Bessant has successfully participated in the residential rehabilitation program at Wayback Ltd for approximately five months.
Drug and Alcohol Treatment Order
His Honour then spoke directly to the accused again:
69. Mr Bessant, please stand.
70. I make a Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) in respect of you for 12 months from today, 25 September 2020, for the primary offence of aggravated burglary at Hume on 13 September 2019, for which I have convicted and sentenced you today.
71. I extend that order to the three offences of burglary, four offences of theft and an offence of dishonestly taking and using a motor vehicle without the owner's consent, all being associated offences for which I have convicted you.
72. I note that I have recorded convictions for the primary offence and associated offences and impose a sentence, which convictions and sentences, commencing on 9 June 2020 and ending on 8 March 2024, are hereby incorporated into the Drug and Alcohol Treatment Order.
73. I suspend the sentence of three years and nine months, being the total of the sentences for the primary offence and associated offences, from today, until the end of the term of imprisonment, under s 80W of the Crimes (Sentencing) Act 2005 (ACT).
74. I require you to sign an undertaking to comply with the offender's Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 2 years, 5 months and 14 days, from 25 September 2021 to 8 March 2024, with a probation condition that you accept supervision from the Commissioner of ACT Corrective Services or his delegate for 2 years, 5 months and 13 days or such lesser period as the person supervising you considers appropriate, and obey all reasonable directions of the person supervising you including as to counselling or further treatment.
75. For the treatment and supervision part of the Drug and Alcohol Treatment Order, I order that you to comply with the core conditions set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) for the term of the Drug and Alcohol Treatment Order, and complete such treatment including counselling, medical treatment, urinalysis, attendance at programs and such other program of treatment as agreed with the Treatment Order Team from time to time and as ordered by the Court.
76. I order that you comply with the directions of the Court about attendance at Court in person or by electronic means and about any other treatment or supervision matter from time to time.
77. I direct that you attend Court on 2 October 2020 at 11:30 am.
78. Mr Bessant, no doubt your lawyer has and will explain to you what has happened. But in short terms, I have said that the criminality that you committed on 13 and 20 September 2019 should be punished, ordinarily, by three years and nine months' imprisonment. In this case, because of the circumstances of the offending, that they were committed while you were addicted to illicit drugs which were heavily impairing your judgement and affecting the reasons why you carried out such crimes, and because you have shown an indication that you want to turn away from that difficulty in your life and reform, and taken significant steps to do that, I have decided to make a Treatment Order. That order allows me to suspend the sentence. So, you do not have to spend any more time in custody unless I cancel the Treatment Order. I have considered that you have completed sufficient residential rehabilitation in this case to be released into the community, but with a caveat that you require significant control and supervision and attendance.
79. You need to attend for counselling, for case management, for Smart Recovery and other treatment programs from time to time. There might be, indeed, some medical treatment that requires continued attention too. You will also need to appear in Court from time to time so that we can supervise your progress and so that I can sanction you if you are not making progress. That includes sending you to jail again. If you fail to comply with any of the conditions, including attendance at programs, then I can cancel the Treatment Order and send you back to jail for the balance of the sentence that is yet to be served. So, the stakes are pretty high. But I do not want to use the stick. I want to use the carrot.
80. You have indicated a wish to reform, to put this kind of lifestyle behind you. Many other people, who have gone through Drug Court processes, have been successful in doing that and have been able to live the kind of life that you want, to have a relationship with your daughter and to engage in such employment as you might like and to enjoy the benefits of living in a society such as ours.
81. If you take this opportunity for change with both hands, this Court will support you in that. It will encourage you, and there are people here, expert people in the Treatment Order Team, who can assist you to achieve that objective. It needs, however, effort and commitment from you. It is not always going to be easy, particularly now that you are back in the community where there are temptations.
82. There are people who want to bring you back to that kind of lifestyle, who will make a benefit and a profit out of that, as well as enjoying your company in criminality. But that is not a life that I assess you want to lead and therefore, you have got the opportunity to change that. If you take that opportunity of living a fulfilling and satisfactory life in the future, the Court will help you.
83. You may be seated.
I certify that the preceding eighty-three [83] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge.
Associate: Samuel Xiang
Date: 24 March 2021
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