R v CC
[2014] ACTSC 288
•10 September 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v CC |
Citation: | [2014] ACTSC 288 |
Hearing Date(s): | 5 September 2014 |
DecisionDate: | 10 September 2014 |
Before: | Refshauge J |
Decision: | 1. For the burglary at Harrison on 8 August 2009, CC be sentenced to six months’ imprisonment to commence on 10 May 2013, to take into account pre-sentence custody. 2. For the theft of property from those premises, CC be sentenced to four months’ imprisonment to commence on 10 May 2013. That is to be wholly concurrent with the sentence for that burglary. 3. For the burglary at Torrens on 10 August 2009, CC be sentenced to six months’ imprisonment to commence on 10 July 2013. That is to be cumulative as to two months on the sentence for the burglary at Harrison. 4. For the theft of property from those premises at Torrens, CC be sentenced to five months’ imprisonment to commence on 10 September 2013. That is to be cumulative as to one month on the burglary. 5. For the damage to the window of those premises, CC be sentenced to six months’ imprisonment to commence on 10 July 2013. That is to be wholly concurrent on the sentence for the burglary at those premises. 6. For the aggravated burglary at the shop at Cook on 22 December 2009, CC be sentenced to twelve months’ imprisonment to commence on 10 August 2013. That is to be cumulative as to six months on the sentence for the theft of property at Torrens. 7. For the theft of property from that shop, CC be sentenced to six months’ imprisonment to commence on 10 August 2013. That is to be wholly concurrent on the sentence for the aggravated burglary. 8. For the burglary at Nicholls on 28 February 2010, CC be sentenced to nine months’ imprisonment to commence on 10 February 2014. That is to be cumulative as to three months on the sentence for the aggravated burglary at Cook. 9. For the damage property, being the two flyscreens and window in the premises at Nicholls, CC be sentenced to six months’ imprisonment to commence on 10 February 2014. That is to be wholly concurrent with the sentence for the burglary of those premises. 10. For the burglary at Macarthur between 11 and 16 July 2010, CC be sentenced to nine months’ imprisonment to commence on 10 June 2014. That is to be cumulative as to four months on the sentence of the burglary at Nicholls. 11. For the theft of property from that premises, CC be sentenced to six months’ imprisonment to commence on 10 June 2014. That is to be wholly concurrent on the sentence for the burglary. 12. For the assault at Macquarie on 15 December 2009, CC be sentenced to nine months’ imprisonment to commence on 10 June 2014. That is to be wholly cumulative on the sentence for the burglary at Macarthur. 13. For the damage to the fence and gatepost at the house at Macquarie on 15 December 2009, CC be sentenced to six months’ imprisonment to commence on 10 November 2015. That is to be cumulative as to two months on the sentence for the assault on that day. 14. For the damage to the door, chairs and pot at the house at Macquarie on 15 December 2009, CC be sentenced to six months’ imprisonment to commence on 10 January 2015. 15. For the forcible entry onto the premises at Macquarie on 15 December 2009, CC be sentenced to six months’ imprisonment to commence on 10 February 2015. That is to be cumulative as to one month on the sentence for the damage to the door, chairs and pot. 16. For the breach of bail on 1 February 2010, CC be sentenced to two months’ imprisonment to commence on 10 July 2015. That is to be cumulative as to one month on the sentence for the forcible entry at Macquarie. 17. The sentence be suspended from 10 September 2014 for twelve months. 18. CC be required to sign an undertaking to comply with the offenders good behaviour obligations, under the Crimes (Sentence Administration) Act 2005 (ACT), for a period of twelve months from 10 September 2014, with the following condition: (a) a probation condition that he be on probation subject to the supervise of the Director-General or her delegate for a period of twelve months from 10 September 2014 and obey all reasonable directions of the person delegated to supervise him, especially as to alcohol and drug counselling and mental health issues. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Judgment and Punishment – Sentencing – Breach of Good Behaviour Order – Re-sentencing |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), s 110 |
Cases Cited: | Guy v Anderson [2013] ACTSC 5 Marston v The Queen (1993) 60 SASR 320 |
Parties: | The Queen (Crown) CC (Offender) |
Representation: | Counsel Ms P Burgoyne-Scutts (Crown) Mr P Bevan (Offender) |
| Solicitors Director of Public Prosecutions (ACT) (Crown) Bevan and Co Lawyers and Conveyancers (Offender) | |
File Number(s): | SCC 204 of 2011 |
Refshauge J:
Between August 2009 and December 2009, CC committed a total of fifteen offences which were all dealt with together.
While on bail for those offences, he also failed to appear in Court as required by the undertaking he gave when he was granted bail. The offences were serious ones, namely, an offence of aggravated burglary, four counts of burglary, four counts of intentionally causing damage to property, four charges of theft, a charge of assault, a charge of forcible entry onto land, and a charge of failing to appear in accordance with a bail undertaking. They constituted serious offences and a serious spree of criminality. I entered convictions for those offences.
As I set out in my remarks when sentencing (see R v CJ (Unreported, ACTSC, Refshauge J, 28 March 2012)), there were personal circumstances and the situation in which CC found himself which have to be taken into account.
CC had a concerning drug and alcohol history, but he had begun to address that and I considered that he should have the opportunity to continue to do so.
Having regard to his youth and the efforts he had made towards rehabilitation, I sentenced CC to a total term of three years and six months’ imprisonment, backdated to account for the time he had already spent in custody, and then suspended it for three years from 28 March 2012, with a probation condition and a condition requiring him to be monitored by the Court Alcohol and Drug Assessment Service (CADAS).
The convictions I imposed also breached a good behaviour order that had been made on 22 October 2009 for an offence of aggravated burglary committed on 13 August 2009. I imposed the sentence of two years’ imprisonment, less seventy-one days of pre-sentence custody, and I made it concurrent on the other sentences.
Unfortunately, he has breached the good behaviour order I then made. He has been dealt with in the Magistrates Court for an offence of driving whilst unlicensed. As he had earlier been convicted of such an offence, he was a repeat offender.
He was convicted and a three year good behaviour order was made.
Police discovered the offence when investigating a motor vehicle accident and obtained CCTV which showed CC driving a motor vehicle.
The Statement of Facts did not disclose that CC was involved in the accident. He explained to me in the evidence he gave before me on the breach proceedings
[M]y brother called me up and he was getting chased by two carloads of boys so I just drove from ... (indistinct) ... not even a five-minute drive, but even though I shouldn’t have done it, straight up to the right to the hospital where we picked him up from there and that was it.
Accordingly, it seems to me that it was a stupid response to a situation when he felt his brother needed his help. He could, of course, have taken other steps, such as calling the police, but perhaps his impulsiveness and youth meant that he took the more immediate solution instead of a more reflective one.
This conviction, of course, meant that he had breached the good behaviour order I had made. It came, however, after nearly fifteen months, that is, halfway through the period of the good behaviour order, which now has only six months to run, with no further offending since this conviction.
CC has been on probation for that period and he has undergone urinalysis which confirms what he told me, that he is no longer taking drugs. Indeed, his probation officer considers that he does not need further supervision and was considering seeking that condition of the order to end.
It seems, therefore, that CC has made good use of the period under supervision. He said to me that he had stopped using drugs which is confirmed by the information from the probation officer. That was especially important. He said to me that he feels much better and was able to do things that he wants to do during the day.
His partner also has drug issues but has been able to manage her addiction and he told me was also abstinent. I also had a reference from CatholicCare, which has been supporting CC. It states that he has participated in its youth housing support service. It says that he
has demonstrated willingness to attend appointments and has been proactive in seeking suitable support services that may be able to assist him financially.
The author of the reference added that CC:
has worked collaboratively with CatholicCare to develop a realistic budget for living within his current means and find suitable accommodation in the current rental market.
The agency will continue to work with him. As I have noted, CC has been under supervision for about two and a half years without any breaches being noted. He has also obtained some employment four days a week and has made arrangements for attending to his employment without breaking the law, which he would do if he had to drive himself to his work. I said when I sentenced him:
Now, you say you have addressed the major drugs, and that you have not been using them, but times will come when it gets tough. Not everyone out there is going to be nice to you. They are going to be tough and it is going to get stressful. Getting back into the ice is especially problematic, because you are going to get into trouble again. But I think you still need some assistance to address some of those issues and so I have included monitoring with CADAS.
Now, I hope that this works out. Life is not a bed of roses, and we all have difficult things that we have to do, but if you allow this to get on top of you and you do not use those people who are there to support you, then you will be back inside. And if you are back inside, you know what it is like in there, it is not the place that you want to be. It is not the place where you can be a role model for your son and it is not a place where you can get out working and make something of yourself by being a useful and productive member of the community.
It seems to me that, in general terms, CC has accepted the challenge I put before him. He has stopped using the drugs, he has got himself a job and while he has committed a further offence, it is not an offence of the kind that he was formerly committing.
It is, nevertheless, a breach of the good behaviour order. I note that in Marston v The Queen (1993) 60 SASR 320 it was said by the Supreme Court of South Australia that it is relevant to note that the offence is not of the same kind for which the good behaviour order was originally made. As I said in Guy v Anderson [2013] ACTSC 5 at [88], it is important to consider the nature and seriousness of the offence which constitutes the breach in deciding how to proceed.
Nevertheless, as I also said in that case, ordinarily a breach of a good behaviour order, made when a sentence of imprisonment is suspended, will result in the offender serving the sentence of imprisonment.
It seems to me that I must cancel the good behaviour order and I must re-sentence CC. Section 110 of the Crimes (Sentence Administration) Act 2005 (ACT) requires me to do so. It is in the following terms:
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.
Example
The Magistrates Court convicted Desmond of an offence. The court sentenced Desmond to imprisonment for 6 months for the offence and made a suspended sentence order for the entire sentence of imprisonment. The court also made a good behaviour order for the 6-month period. Desmond breaches the order. In re-sentencing Desmond, the court may impose a sentence of imprisonment to be served by periodic detention.
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(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.
In my view, having found the breach of the good behaviour order, which the conviction of CC of the charge of, as a repeat offender, driving whilst unlicensed constitutes, I must cancel the good behaviour order.
Given the circumstances, I do not consider that I should impose the sentence of imprisonment that was suspended. In all the circumstances, I consider that I should re-sentence CC and, effectively, extend the period of the good behaviour order for a short period, effectively to end instead of on 27 March 2015, now on 9 September 2015. That is a year from today.
CC, please stand:
1. For the burglary at Harrison on 8 August 2009, I sentence you to six months’ imprisonment to commence on 10 May 2013, to take into account pre-sentence custody. Had you not pleaded guilty, I would have sentenced you to eight months’ imprisonment.
2. For the theft of property from those premises, I sentence you to four months’ imprisonment to commence also on 10 May 2013. That is to be wholly concurrent with the sentence for that burglary. Had you not pleaded guilty, I would have sentenced you to six months’ imprisonment.
3. For the burglary at Torrens on 10 August 2009, I sentence you to six months’ imprisonment to commence on 10 July 2013. That is to be cumulative as to two months on the sentence for the burglary at Harrison. Had you not pleaded guilty, I would have sentenced you to eight months’ imprisonment.
4. For the theft of property from those premises at Torrens, I sentence you to five months’ imprisonment to commence on 10 September 2013. That is to be cumulative as to one month on the burglary. Had you not pleaded guilty, I would have sentenced you to seven months’ imprisonment.
5. For the damage to the window of those premises, I sentence you to six months’ imprisonment to commence on 10 July 2013. That is to be wholly concurrent on the sentence for the burglary at those premises. Had you not pleaded guilty, I would have sentenced you to eight months’ imprisonment.
6. For the aggravated burglary at the shop at Cook on 22 December 2009, I sentence you to twelve months’ imprisonment to commence on 10 August 2013. That is to be cumulative as to six months on the sentence for the theft of property at Torrens. Had you not pleaded guilty, I would have sentenced you to fifteen months’ imprisonment.
7. For the theft of property from that shop, I sentence you to six months’ imprisonment to commence on 10 August 2013. That is to be wholly concurrent on the sentence for the aggravated burglary. Had you not pleaded guilty, I would have sentenced you to eight months’ imprisonment.
8. For the burglary at Nicholls on 28 February 2010, I sentence you to nine months’ imprisonment to commence on 10 February 2014. That is to be cumulative as to three months on the sentence for the aggravated burglary at Cook. Had you not pleaded guilty, I would have sentenced you to twelve months’ imprisonment.
9. For the damage property, being the two flyscreens and window in the premises at Nicholls, I sentence you to six months’ imprisonment to commence on 10 February 2014. That is to be wholly concurrent with the sentence for the burglary of those premises. Had you not pleaded guilty, I would have sentenced you to eight months’ imprisonment.
10. For the burglary at Macarthur between 11 and 16 July 2010, I sentence you to nine months’ imprisonment to commence on 10 June 2014. That is to be cumulative as to four months on the sentence of the burglary at Nicholls. Had you not pleaded guilty, I would have sentenced you to twelve months’ imprisonment.
11. For the theft of property from that burglary, I sentence you to six months’ imprisonment to commence on 10 June 2014. That is to be wholly concurrent on the sentence for the burglary. Had you not pleaded guilty, I would have sentenced you to eight months’ imprisonment.
12. For the assault at Macquarie on 15 December 2009, I sentence you to nine months’ imprisonment to commence on 10 June 2014. That is to be wholly cumulative on the sentence for the burglary at Macarthur. Had you not pleaded guilty, I would have sentenced you to twelve months’ imprisonment.
13. For the damage to the fence and gatepost at the house at Macquarie on 15 December 2009, I sentence you to six months’ imprisonment to commence on 10 November 2015. That is to be cumulative as to two months on the sentence for the assault on that day. Had you not pleaded guilty, I would have sentenced you to eight months’ imprisonment.
14. For the damage to the door, chairs and pot at the house at Macquarie on 15 December 2009, I sentence you to six months’ imprisonment to commence on 10 January 2015. That is to be cumulative as to two months on the sentence for the damage to the fence and gatepost on that property. Had you not pleaded guilty, I would have sentenced you to eight months’ imprisonment.
15. For the forcible entry onto the premises at Macquarie on 15 December 2009, I sentence you to six months’ imprisonment to commence on 10 February 2015. That is to be cumulative as to one month on the sentence for the damage to the door, chairs and pot. Had you not pleaded guilty, I would have sentenced you to eight months’ imprisonment.
16. For the breach of bail on 1 February 2010, I sentence you to two months’ imprisonment to commence on 10 July 2015. That is to be cumulative as to one month on the sentence for the forcible entry at Macquarie. Had you not pleaded guilty, I would have sentenced you to three months’ imprisonment.
17. I suspend the sentence from today for twelve months.
18. I require you to sign an undertaking to comply with the offenders good behaviour obligations, under the Crimes (Sentence Administration) Act 2005 (ACT), for a period of twelve months from today, with the following condition:
(b) a probation condition that you be on probation subject to the supervise of the Director-General or her delegate for a period of twelve months from today and obey all reasonable directions of the person delegated to supervise you, especially as to alcohol and drug counselling and mental health issues.
[His Honour then spoke directly to CC]
I spoke to you on Friday. I do not need to repeat what I said. This was a stupid offence. It was still an offence. It is still a criminal offence, but it was something that you could have avoided and we could have all avoided this aggro. It is better that you just keep out of trouble for the next twelve months. The relationship with your son is something that you really need to keep in the forefront of your mind.
You have had a couple of breaches of good behaviour orders. This was a relatively minor one, and that will be clear, but the more you have, the closer you come to going back to where you do not want to go.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Refshauge. Associate: Date: 27 January 2015 |
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