R v Christopher Martin Guy
[2015] ACTSC 237
•5 August 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Christopher Martin Guy |
Citation: | [2015] ACTSC 237 |
Hearing Date(s): | 31 July 2015 |
DecisionDate: | 5 August 2015 |
Before: | Refshauge J |
Decision: | 1) The Good Behaviour Orders made on 15 November 2013 be cancelled. 2) The conviction for assault occasioning actual bodily harm committed on 3 March 2011 be confirmed. 3) Christopher Guy be sentenced to six months imprisonment, to commence today. 4) The sentence be suspended on 5 August 2015 for a period of two years. 5) Christopher Guy be required to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for two years, with the following conditions: a. A probation condition that he be under the supervision of the Director‑General or her delegate for two years, or such lesser period as the person supervising him considers appropriate and that he obey all reasonable directions of the person supervising him; b. A condition that he complete 180 hours of community service work within 18 months from 5 August 2015; c. A condition that he participate in the Detention Exit Community Mental Health Outreach Program for three months from his release from prison on 20 August 2015 and thereafter for so long as the person supervising him directs him to do so; 6) The conviction for damaging property on 20 December 2011 be confirmed; 7) Christopher Guy be sentenced to one month imprisonment, to commence on 4 July 2015 to take into account pre-sentence custody. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Jurisdiction, practice and procedure – Breach of Good Behaviour Order – Resentencing – Orders of the Magistrates Court varied by the Supreme Court on appeal – Good Behaviour Order made in the Supreme Court following an appeal from the Magistrates Court – Further offending – Extensive criminal history – Offender seeking rehabilitation – Childhood disadvantage – Serious mental health issues – History of serious alcohol and drug use |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT); s 107(2) Crimes (Sentence Administration) Act; ss 108, 110 |
Cases Cited: | Guy v Anderson (No 2) [2013] ACTSC 245 Guy v Anderson [2013] ACTSC 5 R v Verdins (2007) 16 VR 269 |
Parties: | The Queen (Crown) Christopher Martin Guy (Accused) |
Representation: | Counsel Mr G Mansfield (Crown) Mr J de Bruin (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number(s): | SCA 38 of 2012 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Walker Date of Decision: 2 May 2012 Case Title: R v Christopher Guy Court File Number(s): CC 2011/2953; CC 2012/537 |
REFSHAUGE J:
On 7 March 2012, Christopher Guy, the offender appearing before me, pleaded guilty in the ACT Magistrates Court to an offence of damaging property while being involved in an argument with a woman with whom he had had a rather intermittent and volatile relationship. He broke a window in the complainant's house.
He was convicted of that offence and sentenced on 2 May 2012 to one month's imprisonment. That conviction breached a Good Behaviour Order which had been made on 28 August 2011, when he was convicted of an assault on the same complainant and sentenced to six months imprisonment, which had then been immediately suspended. As required under s 12(3) of the Crimes (Sentencing) Act2005 ACT, the Good Behaviour Order had been made; it was made for two years.
That Good Behaviour Order was cancelled as a result of the breach and the sentence of imprisonment which had been suspended was then imposed, but ordered to be served concurrently with another term of imprisonment. He appealed against that sentence and, on 14 January 2013, I upheld the appeal. I imposed the period of six months' imprisonment but suspended it and, as required, made a Good Behaviour Order for which was 12 months. I also made a Good Behaviour Order for the offence of damaging property, having regard to the period that Mr Guy had already spent in custody. See Guy v Anderson [2013] ACTSC 5.
On 5 September 2013, however, Mr Guy was convicted of some traffic offences, including refusing to provide a breath sample. That offence, punishable by imprisonment, constituted a breach of both Good Behaviour Orders. As a result of the admitted breach, I extended the Good Behaviour Order imposed for the offence of damaging property for a further 12 months, to expire on 11 January 2015, and I resentenced Mr Guy to six months imprisonment on the other charge, suspended for a period of 12 months, and made a further Good Behaviour Order for a period of 12 months with the condition that he perform 80 hours of community service work within 12 months. That effectively increased the length of the Good Behaviour Orders, as well as requiring Mr Guy to perform community service work.
On 19 May 2015, however, Mr Guy was convicted in the Magistrates Court of assault occasioning actual bodily harm and sentenced to 18 months imprisonment, to commence on 21 November 2014 and end on 20 May 2016. The Court ordered that the sentence be suspended after Mr Guy had served nine months. Accordingly, the sentence will be suspended on 20 August 2014. A Good Behaviour Order was made for two years thereafter.
That sentence constitutes a breach of the Good Behaviour Orders I made on 15 November 2013, as the offence was committed on 21 November 2014. The date is within the period of both Good Behaviour Orders.
Mr Guy has appeared before me to be dealt with for the breach of the Good Behaviour Orders. He had admitted the breaches.
Jurisdiction
An issue has arisen as to the jurisdiction of this Court to deal with the breach of the orders. It arises in this way.
Section 218 of the Magistrates Court Act 1930 (ACT) provides for the orders that the Supreme Court may make on appeal from the Magistrates Court, as were the proceedings in which I ultimately made the Good Behaviour Orders on 14 January 2013 and again on the breach on 15 November 2013. Significantly, s 218(2) provides:
A judgment or order of the Supreme Court under subsection (1)(a) or (b) has effect as if it were a decision of the Magistrates Court and may be enforced by the Magistrates Court accordingly.
Relevantly, s 218(1)(a) of the Magistrates Court Act provides that the Court may "confirm, reverse or vary the conviction, order, sentence, penalty or decision appealed from."
The purpose and intent of this provision is not entirely clear. It may suggest that the orders of the Supreme Court on an appeal from the Magistrates Court are deemed to be orders of the Magistrates Court and therefore not to be taken to be orders of this Court.
If that is so, a question would arise as to whether this Court may deal with breaches of Good Behaviour Orders made when, on appeal, the Supreme Court varies a sentence made in the Magistrates Court and thereby varies a Good Behaviour Order or varies the sentences and imposes a Good Behaviour Order.
The answer, it seems to me, is in s 107(2) of the Crimes (Sentence Administration) Act 2005 (ACT). That provides as follows:
If the Magistrates Court finds an offender guilty of an offence committed during the term of the offender’s good behaviour order, and the order was made or changed by the Supreme Court, the Magistrates Court must, in addition to dealing with the offender for the offence, commit the offender to the Supreme Court to be dealt with under this part for breach of the offender’s good behaviour obligations.
I note that this is not limited to Good Behaviour Orders made when a sentence of imprisonment is suspended, but is limited to Good Behaviour Orders. It may be, therefore, that other orders made by the Magistrates Court are, even if varied by the Supreme Court on appeal from the Magistrates Court, to be enforced in the Magistrates Court and not in the Supreme Court. Thus, for example, it may be that a fine enforcement, even though the fine was imposed in the Supreme Court on appeal from a Magistrates Court decision, would have to be enforced through the Magistrates Court.
The facts of the breaching offence
The circumstances under which the offence for which Mr Guy was dealt with most recently in the Magistrates Court, and which constitutes the current breach of the Good Behaviour Orders, came about as follows. Mr Guy had been in a de facto relationship with the complainant for about four and a half years. Indeed, she was the complainant in the matter which led to the suspended sentence being imposed on 28 August 2011 and the offence committed on 20 December 2011, which led to the appeal ultimately heard by me.
Mr Guy and the complainant had an altercation after Mr Guy returned home at about 2:00am on 21 November 2014, having been at a mutual friend's house. Mr Guy became angry with the complainant, suggesting that she had been making sexual overtures to his friends. Later that day, she went out to a friend's house, returning at about 4:30pm. They ate dinner, which Mr Guy had cooked, and then Mr Guy went to bed.
The complainant asked him to get out of her bed, he became angry and an argument began. The complainant then said that she wanted to end the relationship and Mr Guy became extremely angry. He choked the complainant before throwing her into a chest of drawers where she hit her head and began to bleed. Mr Guy called for an ambulance.
The police arrived as a result of information from Ambulance Operations, because Mr Guy had called them. When the police arrived, they found the complainant lying in the bedroom, bleeding moderately from an open wound on the right‑hand side of her forehead with a large amount of swelling in the middle of her forehead, dark-blue bruising under both of her eyes and redness and scratching around the base of her neck and throat.
The complainant appeared to be semiconscious and initially had difficulties in speaking to police. She complained of head pain. She said she did not want to press charges and did not want police to arrest Mr Guy because she was scared that if he was arrested he would kill her when he came home. Mr Guy admitted that he had struck the complainant with his right‑hand index finger to the forehead three times and said that he had then contacted ACT Ambulance. Shortly after police arrived the ambulance arrived and transported the complainant to the Canberra Hospital for treatment for her injuries.
Mr Guy was arrested and remained in custody until he was sentenced. Mr Guy denied some of the facts when speaking to the officer of ACT Corrective Services, who prepared a Pre‑Sentence Report for sentencing in the Magistrates Court, but there was no disputed facts hearing and I have the prepared summary of the facts from the police statement of facts tendered at the Magistrates Court sentencing hearing.
This is the third breach of Good Behaviour Orders which are traceable to the conviction and suspended sentence for the offence of assault occasioning actual bodily harm on the same complainant dealt with on 28 August 2011.
Subjective circumstances
I set out comprehensively Mr Guy's subjective circumstances when I upheld his appeal: Guy v Anderson at [28]-[47]. I also updated those matters in the more recent decision of Guy v Anderson (No 2) [2013] ACTSC 245 at [15]-[29]. I adopt what I there said. I need only summarise it briefly. I also had a copy of the Pre‑Sentence Report tendered to the Magistrates Court on sentence and a Pre‑Sentence Report tendered to me.
From this material I make the following findings. Mr Guy is now 46 years old. He is one of four children born to his parents. His early life had difficulties. He was sexually abused as a child. He suffered from Attention Deficit Hyperactivity Disorder and dyslexia, which made school difficult. His parents separated, which affected him. He left school when he was 14 and left his home, becoming homeless for a number of years.
He has limited literacy skills and has had limited employment. He was in a de facto relationship for 12 years and the couple had three children. Tragically, Mr Guy's eldest son died at age 18 in a motor vehicle collision. The defacto relationship ended. His father died in October 2013 and that also deeply affected Mr Guy. Mr Guy entered into a relationship with the complainant of the most recent offences in about mid-2010. It has been an intermittent and volatile relationship and the complainant has been the victim of all the most recent offences, apart from the driving offences. I am informed, however, that the relationship has also now ended.
Mr Guy has a long drug and alcohol history. He started drinking alcohol when he left school and by 15 was drinking regularly. He has drunk excessively over the years, as his criminal history shows. He has been dealt with by the court for eight drink driving offences. He says he has reduced his consumption, but had drunk alcohol before he committed the most recent offence.
He also started using drugs at an early age, first cannabis and later cocaine, amphetamines and hallucinogens. He had used cannabis also at the time of the most recent offence. He has attended some rehabilitation programs but his diagnosed social phobia has limited his capacity to sustain a long‑term residential drug problem. He was screened for drug and alcohol use on 30 January 2015, which showed that he was using illicit substances and alcohol at a low level. Oddly in the Pre-Sentence Report of 17 July 2015, despite him being in the AMC in the meantime, his drug use over the past 12 months was assessed as being at a moderate level. He has not undertaken any alcohol or drug interventions since March 2010.
Mr Guy is undergoing treatment for an unspecified physical health issue. A major matter of concern is his mental health. I considered that in some detail in my most recent remarks, Guy v Anderson (No 2) at [24], [26]-[29]. In summary, Mr Guy has been involved with ACT Mental Health Services since 1998. He has had various diagnoses and has been medicated for the diagnosed illnesses.
The most recent diagnosis made included a major depressive disorder, borderline personality disorder and antisocial personality traits. He has approached the Mental Illness Fellowship ACT recently, which has a Detention Exit Community Mental Health Outreach Program (DECO) which supports participants with mental illness who have had contact with the justice system. The program provides intense case management to participants for three months after their release from custody and then facilitates a referred path to Partners in Recovery for long‑term support and management.
A key worker is assigned to each participant and a recovery plan is developed based on a bio-psychosocial model of care directed towards supporting the participant to reintegrate into the community, manage their mental illness and address recidivism. The significance of the program is shown by the partners, which include the Mental Illness Fellowship and Karralika programs, as well as appropriate government agencies; Mental Health, Justice Health and the Alcohol and Drug Service. It appears to constitute a positive partnership able to address the very problematic area of co-morbidity where alcohol and drug issues and mental health issues are both present but often not able to be addressed in a joint or even coordinated way. That Mr Guy made the approach himself is some indication of his insight and motivation to address his offending behaviour.
Mr Guy has a long and problematic criminal history, with 122 offences on his most recent criminal record, dealt with in 38 court appearances. An analysis of the offences shows some relevant matters. He has committed 45 dishonesty offences, including 17 burglary or attempted burglary offences, though the most recent was in 1997. He has committed 15 offences of larceny, but again, the most recent was in 2005. He has committed 10 offences of taking a motor vehicle dishonestly without consent, but again, the most recent offence was in 2004.
He has committed 42 traffic offences, including the eight drink driving offences, to which I have referred above (at [25]), but also 15 offences of driving without a licence, on many occasions because he had been suspended or disqualified from holding or obtaining a licence. He has committed four drug offences and eight offences of damaging property and has failed to comply with a bail undertaking on four occasions. He has breached court orders on 11 occasions.
Since 2011, however, he has committed no offences of dishonesty, nor been dealt with for any breaches of bail. Since that date, however, he has driven without a licence and while affected by alcohol. The other offences, regrettably, are all offences of violence, and one offence of damaging property. Nevertheless, in the last four years he has committed eight offences. This is, of course, not something of which he is to be proud or which shows significant rehabilitation. Four of the offences, however, arise from the volatile relationship with the complainant which is now ended.
There does seem to me, especially with the prospect of the DECO program, some sign that his criminality is abating and that, outside the relationship with the complainant, there may be some likely reduction in offending.
I note, too, that he satisfactorily completed the community service work condition I made to the Good Behaviour Order when resentencing him on 15 November 2013.
Breach of Good Behaviour Order
There is no doubt that, as the courts have regularly said, Good Behaviour Order must be treated seriously. Indeed, I have addressed this matter at some length in Guy v Anderson at [83]-[91].
While the failure of the courts to take appropriate action for breaches of such orders is undesirable, perhaps undermining the institution of Good Behaviour Orders themselves, there is not, in this jurisdiction, a presumption in favour of imposing a sentence of imprisonment that has been suspended when the Good Behaviour Order is made, though there must be some good reasons for not activating that sentence of imprisonment.
The breach in this case, constituted by the most recent offence, is serious because it is both a serious offence, punishable by a maximum penalty of five years imprisonment, and because the breach is constituted by reoffending, which is clearly more serious than, for example, a failure to complete a community service work condition or to accept supervision. It is also serious because the offence was a family violence offence committed on a complainant who had been the victim of earlier offences of a similar type committed by Mr Guy, for which the current Good Behaviour Orders owe their genesis.
Nevertheless, as I indicated in Guy v Anderson (No 2) at [32], there is a need to take into account Mr Guy's mental health, which attracts some of the principles in R v Verdins (2007) 16 VR 269 at 276; [32]. In this case, the option of rehabilitation can be given greater prominence without minimising the need for some level of specific and general deterrence.
Consideration
Under s 110 of the Crimes (Sentence Administration) Act I must cancel the Good Behaviour Order made when I suspended the prison sentence imposed for the assault occasioning actual bodily harm committed on 3 March 2011. I have the option of resentencing Mr Guy or imposing the sentence that had been suspended.
So far as the other Good Behaviour Order is concerned, I have a wider range of options under s 108 of that Act, including amending the order, though I may also cancel it and resentence Mr Guy. I accept that in considering the options I must take into account the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act.
As I have indicated above (at [29]), despite the seriousness of the offence, the initiative Mr Guy has taken to enter the DECO program does indicate to me that some greater prominence can be given to rehabilitation, especially as many of the issues of deterrence and vindication of the victim are represented in the current custodial sentence imposed on Mr Guy. This may not have been so were the complainant not the victim of the two offences, the first of which is now nearly four and a half years old.
I take into account the matters set out in s 33 of the Crimes (Sentencing) Act which are known to me and which I have set out above and in the earlier decisions to which I have referred. I have in the most recent Pre‑Sentence Report, an assessment required, under ss 78 and 89 of the Crimes (Sentencing) Act, for a community service work condition to a Good Behaviour Order and for a sentence of imprisonment to be served by periodic detention.
Mr Guy has been assessed in that Report as not suitable for either disposition because of his "unaddressed substance abuse issues". While I must have regard to that assessment, I am not bound by it. In relation to the assessment relating to community service work, it seems to me that I should not accept the assessment for the following reasons. While in 1997 he did breach a community service order, he did satisfactorily complete the community service work condition to the Good Behaviour Order I made on 15 November 2013. At that time, he was not involved in any particular drug rehabilitation.
I also note that the Pre‑Sentence Report tendered to the Magistrates Court on sentencing for the most recent offence assessed him then as suitable for a community work condition to a Good Behaviour Order. This was only about five months ago. Since then, Mr Guy has been in custody and, while I have no information as to counselling he has received in custody, and while I accept that drugs can be available in the Alexander Maconochie Centre, it seems to me that he is at least less likely to have been indulging a drug habit during that time to the extent that he would have were he in the community. I also take into account that he has, at his own initiative, been admitted into the DECO program. Ordinarily, I accept assessments of suitability for such decisions and only reject them cautiously and for good reason. In this case, I consider that I can reject the assessment.
I also consider that I should effectively bring the sentence for damaging property to an end. There is a problem in the continued extension of such dispositions as Good Behaviour Orders for offending that is now very old. Mr Guy spent one month in custody between sentence and being granted bail on the appeal. That matter now can be disposed of by resentencing.
Mr Guy, please stand.
I find that you have breached the two Good Behaviour Orders I made on 15 November 2013. I cancel both orders.
I confirm the conviction for assault occasioning actual bodily harm committed on 3 March 2011.
I sentence you to six months imprisonment, to commence today. I suspend the sentence today for a period of two years.
I require you to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act for two years, with the following conditions:
1. A probation condition that you be under the supervision of the Director‑General or her delegate for two years, or such lesser period as the person supervising you considers appropriate, and that you obey all reasonable directions of the person supervising you;
2. A condition that you complete 180 hours of community service work within 18 months from today; and
3. A condition that you participate in the Detention Exit Community Mental Health Outreach Program for three months from your release from prison on 20 August 2015 and thereafter for so long as the person supervising you directs you to do so.
51. I confirm the conviction for damaging property on 20 December 2011;
52. I sentence you to one month imprisonment, to commence on 4 July 2015 to take into account pre-sentence custody.
[His Honour then spoke directly to Mr Guy]
53. Mr Guy, those are the formal orders I have made and, given your familiarity with the criminal justice system, you probably understand most of it, but I am required to explain what I have done.
54. For the original offence of assault occasioning actual bodily harm, I have reimposed the six months imprisonment but I have suspended it from today and made a Good Behaviour Order for two years. That is concurrent with the Good Behaviour Order that you will enter into on 20 August 2015 in respect of the Magistrates Court matter, which also goes for two years, although there are a few weeks difference between the two.
55. That means that if you breach that Good Behaviour Order by failing to comply with any of the conditions or by committing any further offences you can be brought back both to the Magistrates Court and this Court and be resentenced or the nine months owing in the Magistrates Court or the six months owing here can be imposed, either cumulatively or concurrently. The conditions are:
1. A probation condition. That is one that you are well familiar with but I remind you that you are required to obey the directions that are reasonably made by the person supervising you. That is important because it is both for control, protection of the community and to try to keep you out of trouble. It is also an opportunity for you to have someone with whom you can discuss matters when things get tough, and they do get tough, and who has access to agencies that may be able to assist you and can often sort those things out;
2. That you complete 180 hours of community service. That is significantly increased because you keep breaching Good Behaviour Orders and you need to be punished for that. There are 180 hours but two years within which you can complete that;
3. A condition that you participate in the DECO program. Your commitment is there, I understand that, but I am making it a condition so that, if it falters, you are back before me. The three months is mandatory, after that it is between you and the probation officer as to how far you go. I hope you go much further. You need to get into drug and alcohol rehabilitation, you need to get into managing your mental health.
56. Looking back on your history it looks like you are moving forward now that your relationship, which sounded a bit toxic, is over. You are not committing the burglaries and the take and use motor vehicles offences. Traffic is still a problem and I did consider whether I should make it a condition of the Good Behaviour Order that you not be in the driver's seat of a motor vehicle. I have decided that if you do that, it is an offence and you will be breached anyhow, which means you will back before me and the chance of the six months imprisonment being imposed is very high.
57. Finally, for the damaging property, you were in gaol for a month between the imposition of that sentence and the appeal. We will wipe that off the slate. So now you have only got two Good Behaviour Orders rather than three and hopefully you can get on with your life. You do need to put some effort into it. You are old enough now not to waste the rest of your life, but it will be tough. If you are genuine in your efforts, the Court will support you in this, as I hope I have shown you, but if you are not, then you can expect further custodial sentences and a revolving door.
| I certify that the preceding fifty-seven [57] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Refshauge. Associate: Date: 21 August 2015 |
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