R v CD (No 2)
[2020] ACTSC 84
•8 April 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v CD (No 2) |
Citation: | [2020] ACTSC 84 |
Hearing Date: | 8 April 2020 |
DecisionDate: | 8 April 2020 |
Before: | Walker AJ |
Decision: | The offender is sentenced to 10 months imprisonment fully suspended upon entering a good behaviour order. See [8]. |
Catchwords: . | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency on child under 16 years – use of carriage service to menace, harass or offend – act of indecency committed in breach of good behaviour order – carriage service offence committed in breach of bail – resentence |
Legislation Cited: | Crimes Act 1900 (ACT) s 61(2) Crimes (Sentencing) Act 2005 (ACT) s 17 Criminal Code 1995 (Cth) s 474.17(1) |
Parties: | The Queen (Crown) CD (Offender) |
Representation: | Counsel S Janackovic (Crown) T Sharman (Offender) |
| Solicitors Director of Public Prosecutions (Crown) Sharman Robertson (Offender) | |
File Number(s): | SCC 84 of 2017 SCC 140 of 2017 |
WALKER AJ
The offender, CD, was sentenced by Penfold AcJ on 7 September 2017 for the following offences: one count of an act of indecency on a person under 16 years of age contrary to s 61(2) of the Crimes Act 1900 (ACT) for which the maximum penalty is 10 years imprisonment, and one count of using a carriage to menace, harass or offend contrary to s 474.17(1) of the Criminal Code 1995 (Cth) for which the maximum penalty is three years imprisonment.
In short, the act of indecency was committed on the offender's partner's 11 year old daughter one evening in late 2016. She told her mother who threw the offender out of the house. He was on a good behaviour order for an assault occasioning actual bodily harm at the time. He was arrested and bailed. Having been released on bail, he contacted his former partner frequently over a 10 day period by email, phone call and leaving flowers at her door. The contacts ranged from expressions of love and regret, to denials and ultimately rambling threats. He pleaded guilty to both offences.
He was sentenced to five months imprisonment for the carriage service offence which was treated by her Honour in a separate sentence, being a Commonwealth offence, as time served. A further 20 months was imposed for the act of indecency which was suspended after 10 months upon entering into a conditional good behaviour order for two years with $1000 security. That left 10 months of imprisonment remaining. The good behaviour order which was imposed has now expired. On 18 February 2020, the offender was in the Magistrates Court before Stewart M for an offence of driving as a repeat offender with a prescribed drug in his oral fluid, that drug being methylamphetamine.
Breach of good behaviour order
The offence occurred on 5 April 2019, prior to the expiration of the good behaviour order imposed by the Supreme Court. That matter went to hearing, the sole issue being the defence of honest and reasonable mistake of fact which his Honour rejected. His Honour, however, went on to find the offence proved but determined it was inexpedient to record a conviction having regard to s 17 of the Crimes (Sentencing) Act 2005 (ACT). Nonetheless, the finding of guilt enlivened the operation of s 107(2) of the Crimes (Sentence Administration) Act 2005 (ACT) (the ‘Sentence Administration Act’) and the offender was committed to this court to be dealt with for the breach.
Crown submissions were brief. The Crown submitted that re-sentence is a matter for the Court, however, acknowledged that a re-sentence rather than imposition of the remaining period of imprisonment was more appropriate in the circumstances. A sentence which allowed for the offender to be at risk of serving a remaining period of imprisonment with a good behaviour order for the same period, it was submitted, was appropriate. The offender submitted, on reflection, that the Crown approach in respect to re-sentence was appropriate. I note that from the submissions made that the offender disclosed his offending to ACT Corrective Services as required by the conditions of his good behaviour order.
One of the prime conditions of that order was that he complete, if appropriate, a sex offender's course and that was done. He also owned up about the fact that his offending created a breach to the Magistrates Court, a fact which was not apparent on the criminal history before the Court at the time. Although a repeat offender for the drug driving offence, it was, in fact, his first drug drive offence. The matters which made him a repeat offender were those related to the use of alcohol whilst driving or having alcohol in his system. The Magistrates Court made a finding of guilt but accepted that CD had made some effort to avoid breaking the law and it seems to have been the basis of lenience which was applied to him in not recording a conviction.
I note that the offending which created the breach is different to the type of offence for which the sentence was originally imposed. Having considered those matters in all the circumstances and having accepted the offender's submissions, I note the following. There are good policy reasons for a suspended sentence of imprisonment not to be dealt with in the same way as an ordinary good behaviour order which has been breached, for example, not having the option to take no further action. It is punishment in itself and a real warning to offenders who breach their conditional liberty that they cannot escape the effect of such a breach lightly. Clearly, a simple good behaviour order in these circumstances would be insufficient to deal with the breach. However, I am satisfied that it is appropriate to adopt the approach which the parties have agreed also is appropriate.
Order
Pursuant to s 110(2) of the Sentence Administration Act, the offender is re-sentenced. The sentence will be for a period of 10 months imprisonment from today until 7 December 2020. That sentence is fully suspended upon the offender entering into a good behaviour order with core conditions for the same period.
| I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Walker Associate: Date: 16 April 2020 |
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