R v BJ
[2015] ACTSC 47
•4 February 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v BJ |
Citation: | [2015] ACTSC 47 |
Hearing Date: | 4 February 2015 |
DecisionDate: | 4 February 2015 |
Before: | Penfold J |
Decision: | See [9] to [11] below. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – good behaviour order made in 2014 for burglary, minor theft and common assault committed in context of relationship break-down – offender in breach of good behaviour order by conviction in Magistrates Court for stalking, taking motor vehicle, theft and breaching protection order – new offences also committed in context of relationship break-down – offender 19 years old – troubled childhood – minor criminal record – sentenced in Magistrates Court to imprisonment including three months to be served in full-time custody and the remainder suspended subject to two-year good behaviour order – Supreme Court good behaviour order cancelled and new good behaviour order made for two years. |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) Crimes (Sentence Administration) Act 2005 (ACT) |
Parties: | The Queen (Crown) BJ (Offender) |
Representation: | Counsel Mr C Wanigaratne (Crown) Ms H Hayunga (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 36 of 2013 |
Publication Restriction: | Offender’s name and identifying features |
Introduction
In February 2014, I sentenced BJ for a burglary, taking into account two scheduled offences of minor theft and common assault. The charges arose out of the breakdown of a relationship between BJ, then aged 17, and the complainant in relation to those offences.
The incident involved BJ going to a house where his ex-girlfriend was baby-sitting, and where he was not welcome, remaining there after a disagreement with his ex-girlfriend, stealing some money from her wallet and then pushing her against a wall.
The sentence imposed was a 12-month good behaviour order, including a condition that, if assessed as suitable, he undertake the Cognitive Self-Change Program. Although this had been recommended in the Pre-Sentence Report, there was no mention that a 12-month good behaviour order was not long enough to enable BJ to undertake a cognitive self-change program, and accordingly, he appears to have received no directed help, as a result of that sentencing, with the issues that seem to affect his behaviour.
Breach of good behaviour order
Nearly five months after I sentenced BJ, he began another series of offences against a new ex-partner extending over a month in July and August last year. Those offences involved, in summary:
(a)taking his ex-partner's car keys, then damaging her car, then stealing the car;
(b)using a false Facebook identity to taunt her with pictures of the car hidden in a forest;
(c)attempting to get her (alone) to meet him in the forest;
(d)further damaging the car; and
(e)making a series of harassing phone calls to his ex-partner on her mobile phone and her work phone.
For these offences he was sentenced in the Magistrates Court to a term of imprisonment, three months of which has been served in full-time custody, and the last six months of which is currently suspended subject to a 24-month good behaviour order.
The 2014 sentencing
When I sentenced BJ I took account, in particular, of his youth and of his generally difficult childhood and adolescence, and also I took account of the special provisions of the Crimes (Sentencing) Act 2005 (ACT) concerning sentencing juvenile offenders. I noted also the very supportive comments from members of the Youth Support and Transition Team in ACT Community Services who had been dealing with BJ for some time. In my sentencing remarks I said:
The prosecution characterises these offences as serious offences arising out of an incident of domestic violence, but it is equally arguable, given the offences for which BJ is actually to be sentenced, that the incident arose out of a relatively minor property dispute between two children, although it may be that the disputes over money and the mobile phone were pursued by BJ to some extent as a way of making contact with the complainant.
In that context, I am more concerned about the use of force involved in the assault, that is, pushing the complainant against a wall twice, than about either the act constituting the burglary (remaining in the premises intending to steal the money) or the theft itself. On the other hand, it is probably premature to suggest that this assault indicates any inclination towards domestic violence on BJ’s part.
Sadly, it appears that I was wrong and that BJ does have a tendency to behave inappropriately in the context of failed intimate relationships. This is a matter that needs to be addressed as early as possible.
Options having regard to breach
My options at this stage range from taking no further action to cancelling the good behaviour order and re-sentencing BJ to a term of imprisonment. I consider that the latter is inappropriate at this stage, especially in the context of BJ already being subject to at least six months imprisonment suspended subject to a two-year good behaviour order. It seems that at this stage it would be more useful to focus in my re-sentencing on getting BJ a bit more help, the provision of that help running in tandem with the threat of further prison time under the Magistrates Court sentences.
Re-sentencing
BJ, please stand. I note the breach of the good behaviour order that I made in February 2014 that was constituted by last year's offences, and I now cancel that Good Behaviour Order and order you to sign a new undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for two years.
The good behaviour order is subject to the conditions:
(a)that for such period not exceeding two years, as Corrective Services considers necessary, you accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General or delegate;
(b)that you undertake such counselling courses, programs or treatments as directed by your supervising officer; and
(c)that you be assessed, and if found suitable, that you undertake either, or if Corrective Services considers it appropriate, even both, of a Men's Cognitive Self-Change Program and a Family Violence Cognitive Self-Change Program, if anything of the sort is currently offered.
Finally, I direct you to attend Corrective Services at Eclipse House to arrange this supervision and the assessments, within two days – that is, you do that tomorrow, Thursday, or the next day, Friday.
You will be given a written copy of the good behaviour order and it will be read to you by court officials but in short it means that you have now got this offence, the offence I am dealing with, which dates back to 2012, hanging over you for another two years. If you re-offend, or if you do not co-operate with Corrective Services and their orders, you may find yourself back before this court to be re-sentenced again for this offence, as well as whatever happens to you in relation to breaching the Magistrates Court's orders.
You need to know, BJ, that even though I have not done it this time, I could easily, if you come back to be dealt with again under this good behaviour order, re-sentence you for the 2012 offences and in fact send you to prison at that stage.
I hope I do not see you back at all, but what I am looking for is a very serious attempt on your part to address whatever it is that leads you to behave so badly at the end of a relationship. If a relationship fails then that is it and you just get out of it and move on with your life. You have no rights over ex-partners. You have no justification at all for making demands of them, let alone for threatening them, or using any other sort of methods to bully them into complying with what you want. Do you understand that?
BJ: Yes.
HER HONOUR: All right. You can sit down, BJ.
| I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Date: |
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