R v Cockburn (No 2)
[2015] ACTSC 337
•20 October 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | The Queen v Cockburn [No 2] |
Citation: | [2015] ACTSC 337 |
Hearing Date(s): | 14 October 2015 |
DecisionDate: | 20 October 2015 |
Before: | Refshauge ACJ |
Decision: | 1. Joseph Cockburn is convicted of demanding money by menaces on 12 April 2014. 2. Joseph Cockburn is convicted of taking someone else’s motor vehicle dishonestly without consent on 12 April 2014. 3. Joseph Cockburn is convicted is assault on 12 April 2014. 4. Joseph Cockburn is released on bail, subject to the following conditions: 1. That he accept supervision of the Director-General or her delegate and obey all reasonable directions of the person supervising him; 2. That he complete the Karuna phase of the residential rehabilitation program at Karralika Programs Inc and any additional residential program at the facility for which he is suitable and which is recommended; 3. He consent to the Officer in Charge of Karralika providing any information about his participation in its programs, his progress and his behaviour to the person supervising him; 4. If he is discharged from or leave that program before it is completed, he report in person within one working day to the Registrar of the Supreme Court with a view to having his bail reviewed; 5. Once he completes the Karralika program, he notify the Registrar of the Supreme Court and the Director of Public Prosecutions of his completion and of where he is to reside; 6. After he leaves Karralika, he reside at either Lot 38 Wharf Road, Surfside, New South Wales, until he returns to court, and during that period, report to the officer in charge of Bateman’s Bay police station each Tuesday and Friday, or, if agreed by the person supervising him, he reside at an address in Canberra, in which case he is to notify that address to the Director of Public Prosecutions and report to the officer in charge of Civic police station each Tuesday and Friday; 7. He refrain from consuming illicit drugs; 8. He submit to urinalysis when the person supervising reasonably requires it. |
Catchwords: | CRIMINAL LAW – Jurisdiction, practice and procedure – judgment and punishment – sentencing – deferred sentence order – demanding money by menaces – taking someone else’s motor vehicle dishonestly without consent – assault – additional offences – riding in someone else’s motor vehicle dishonestly without consent – intentionally damaging property – theft – driving whilst disqualified from holding or obtaining a driver licence – using a motor vehicle with a thing to deceive as a number plate – drug use – offender seeking rehabilitation |
Legislation Cited: | Bail Act 1992 (ACT) Crimes Act 1900 (ACT), s 32(2) Criminal Code 2002 (ACT), ss 318(1), 318(2), 308, 321, 403 |
Cases Cited: | Douglas v The Queen (1995) 56 FCR 465 Manisco v Western Australia (No 2) [2013] WASCA 190 |
Parties: | The Queen (Crown) Joseph Cockburn (Defendant) |
Representation: | Counsel Ms E Beljic (Crown) Mr P Bevan (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) J Bevan & Co Lawyers & Conveyancers (Defendant) | |
File Number(s): | SCC 212 of 2014 SCC 213 of 2014 |
REFSHAUGE ACJ:
The devastating problem of drugs is well-known. The cause of drug addiction is various, however, and may be relevant to the approach that a sentencing court should take to the offences committed, largely to obtain funds to pay for the addiction.
For example, it is well-known that when a young person or a child lives in an environment where drugs are common and so becomes addicted at an age before they have genuine opportunity to understand what they are doing, this may be a matter of mitigation, as found in cases such as Douglas v The Queen (1995) 56 FCR 465 at 470 and R v Henry (1999) 46 NSWLR 364 at 397-8; [273].
Sometimes debilitating injury leads to addiction, either through overuse of prescribed painkillers or indeed attempts to self-medicate for unbearable pain. See R v Reed [2013] SASCFC 16 at [46].
As a result, people who might otherwise generally be law-abiding citizens may find themselves in the criminal courts for serious offences, for which, of course, appropriate sentences must be imposed.
Joseph Cockburn has pleaded guilty to an offence of making a demand on the complainant with a threat to endanger the health, safety or physical wellbeing of the complainant; that is, making a demand with menaces, and of dishonestly taking someone else’s motor vehicle without consent.
In addition, a summary offence of common assault has been transferred to this Court under s 90B of the Magistrates Court Act 1930 (ACT), to be dealt with under Pt 8 of the Supreme Court Act 1933 (ACT).
Mr Cockburn has also signed a list of additional offences under Pt 4.4 of the Crimes (Sentencing) Act 2005 (ACT), and asked that I take those offences into account.
As required by s 57(1) of the Crimes (Sentencing) Act (see R v Campbell [2010] ACTCA 21 at [43]), I enquired of Mr Cockburn personally whether he wished me to take those offences into account. He acknowledged that he had made a free and voluntary decision to ask me to do so and did not wish to retract that decision.
These additional offences were two offences of driving someone else’s motor vehicle dishonestly without their consent, one offence of riding in somebody else’s motor vehicle dishonestly without their consent, two counts of intentionally damaging property, taking somebody else’s motor vehicle dishonestly without their consent, two counts of theft, one count of minor theft, one count of driving whilst he was disqualified from holding or obtaining a driver licence, and using a motor vehicle with a thing to deceive as a numberplate.
The offence of making a demand with menaces is an offence against s 32(2) of the Crimes Act 1900 (ACT) which provides for a maximum penalty of 10 years imprisonment.
Taking someone else’s motor vehicle dishonestly without their consent is an offence against s 318 (1) of the Criminal Code 2002 (ACT) and attracts a maximum penalty of 500 penalty units (that is, until 23 August 2014, a fine of $75,000) and imprisonment for five years.
Driving or riding in someone else’s motor vehicle dishonestly without consent are offences prohibited by s 318(2) of the Criminal Code which provides for a maximum penalty of 500 penalty units (that is, at the relative time, a fine of $75,000) and imprisonment for five years.
Intentionally causing damage to property is an offence prohibited by s 403 of the Criminal Code for which the maximum penalty is 1000 penalty units (that is, at the time, a fine of $150,000) and imprisonment for ten years.
Theft is an offence contrary to s 308 of the Criminal Code for which Mr Cockburn is liable to a maximum penalty of 1000 penalty units (that is, at the time, a fine of $150,000) and imprisonment for ten years.
Minor theft is an offence prohibited by s 321 of the Criminal Code which provides for a maximum penalty of 50 penalty units (that is, at the time, a fine of $7,500) and imprisonment for six months.
Driving whilst disqualified from holding or obtaining a licence is an offence against s 32(1) of the Road Transport (Driver Licensing) Act 1999 (ACT) and, for a repeat offender, attracts a maximum penalty of 100 penalty units (that is a fine of $15,000) and imprisonment for twelve months.
Using a motor vehicle with a thing to deceive as a numberplate is an offence against s 22 of the Road Transport (Vehicle Registration) Act 1999 (ACT), which attracts a maximum penalty of 20 penalty units (that is a fine of $3,000).
The maximum penalty is an important indicator of the comparative seriousness of offences and, as can be seen, Mr Cockburn has committed a serious offence and has asked me to take into account a number of other serious offences also.
The facts
The principal offence of demanding money by menaces arises in the following way.
Mr Cockburn met the victim and his partner in about April 2012, as they were living in the same street. They socialised together and Mr Cockburn regularly paid for drinks and gambling by the victim and his partner. In about April 2013, he helped the victim move his belongings to his parents’ house and, in addition, allowed the victim to store some belongings at his house. It was agreed that the victim would pay Mr Cockburn $250 for the drinks and gambling for which he had previously paid.
Mr Cockburn then lost contact with the victim, who had moved into his parents’ house, and the $250 was not paid.
Contact was, however, re-established in March 2014, as the victim wished to collect some of his belongings. About a week later, the victim sought to collect the remainder of his belongings and, on this occasion, Mr Cockburn mentioned the debt of $250.
The victim said that he would pay that sum on 8 April 2014 but that did not happen.
The victim, however, sent a text to Mr Cockburn in the early hours of 12 April 2014 telling him that he was in a position to pay the debt.
They subsequently arranged to meet at the Gold Creek service station but the victim did not turn up. As a result, Mr Cockburn went to the home of the victims’ parents and sent him a text saying that he was outside. The victim went outside and they had a brief conversation, during which the victim agreed to pay the debt but said that he needed to go to an ATM to withdraw the money.
The victim took his partner’s car to a bank in Gungahlin and Mr Cockburn followed in another car driven by an unknown male.
Once they arrived at the bank, the victim withdrew $250 and gave it to Mr Cockburn, but Mr Cockburn then said, “Is that all you have got?” and the victim replied “Yes. That is all I have got and that is all I owe you. I will give you a call later.”
When the victim arrived back at his parents’ home he noticed that Mr Cockburn and the unknown male had followed him and, as he got out of the car, he approached the other car and spoke to Mr Cockburn who said, “You said you were going to pay me on Tuesday. Cos you and the other maggots that owe me money did not come through, now I want $1000.” The victim said, “You’re kidding, right?” and the offender said, “No, I’m fucking not.” The victim said, “I don’t owe you $1000.”
Mr Cockburn got out of the car and insisted that the victim was going to give him $1000 which the victim indicated he did not have. Mr Cockburn then punched the victim to the left side of his face with his right fist. This is the offence of common assault.
As a result, the victim said that he would pay the offender and, following a brief discussion, Mr Cockburn said “Let’s go for a drive.”
The victim got into the driver’s seat of his car and Mr Cockburn got into the passenger seat and directed him where to drive. During the drive, the victim attempted to apologise several times for not paying the debt of $250 earlier. On one occasion, Mr Cockburn replied, “Do you want another smack in the mouth?”
They drove to the loading dock at the rear of the Ngunnawal shops and Mr Cockburn said, “This is what we’re going to do. So when will you have the $1000?” and the victim replied, “Monday.” Mr Cockburn said, “You’re going to sign over the car.” The victim tried to persuade Mr Cockburn to allow him some short period of time to pay but Mr Cockburn was aggressive and he removed the registration papers from the vehicle glove box and gave them to the victim with a pen and a piece of paper.
The victim asked again to be allowed time to pay but Mr Cockburn threatened to assault him again and he directed him to write that he had sold the vehicle to Mr Cockburn and to sign as his partner, who was the actual owner of the car. He then gave him the transfer of registration form and told him to fill in the seller’s section, which the victim did.
Mr Cockburn then told the victim to get out of the car and leave the key and they swapped seats. Mr Cockburn drove a short distance and then told the victim to get out of the car and left him there at the side of the road.
These were the facts that constituted the offence of demanding money with menaces and taking someone else’s motor vehicle dishonestly without the owner’s consent.
The facts of the additional offences are as follows.
Sometime between 31 October 2014 and 1 pm on 1 November 2014, a Mazda motor vehicle was stolen from Ainslie Avenue, Braddon. It was later located in a car park at Jerrabomberra Oval. AFP forensic took samples from the vehicle and provided a sample which matched Mr Cockburn’s DNA. This is the offence of dishonestly driving someone else’s car without their consent.
On 27 November 2014, at about 8.30 pm, Mr Cockburn and a co-offender entered the Canberra Sports and Aquatic Centre where they took a white cloth bag belonging to the owner of a Honda Accord and then took the victim’s Honda Accord and drove it away. The vehicle was later located with a numberplate attached to it that was not issued to the vehicle.
The taking of the motor vehicle was captured on CCTV and AFP forensics managed to identify a number of fingerprints and a sample which matched the DNA of Mr Cockburn. This is the offence of dishonestly driving someone else’s car without their consent.
On 1 January 2015, Mr Cockburn drove a stolen Mercedes Benz motor vehicle to the Pit Stop Car Wash in Calwell. He cleaned the vehicle using the car wash and, during the time, damaged cash boxes attached to the store’s vacuum cleaners and gained access to them, stealing $50. The damage to the boxes totalled about $400.
At the time, Mr Cockburn’s licence had been disqualified. On 29 October 2014, Mr Cockburn had appeared in court charged with driving with a prescribed drug in his oral fluid. He was convicted and fined and disqualified from holding or obtaining a driver licence for five years.
AFP forensics managed to obtain fingerprints from the vacuum cleaners at the Pit Stop Car Wash and the door of the vacuum cleaner unit and these matched Mr Cockburn’s fingerprints. The incident was also captured on CCTV.
The motor vehicle was later located but it had a different set of numberplates on it which did not belong to the car. Material obtained from the car matched the DNA of Mr Cockburn.
This is the further offence of driving someone else’s motor vehicle dishonestly without their consent and the offence of intentionally damaging property, the offence of theft, the offence of driving whilst disqualified, and of using a motor vehicle with a thing on it to deceive as the numberplates.
On 5 January 2015, Mr Cockburn and a co-offender attended JB Hi-Fi in the Tuggeranong Hyperdome and Mr Cockburn took a Swann branded security system and left the store without paying for it. The incident was captured on CCTV. This is an offence of theft.
On 6 January 2015, Mr Cockburn got into a Toyota Landcruiser and drove it away.
Police were called and later located Mr Cockburn who identified himself as Joe West. He was searched and police also located the Landcruiser. It had a box trailer attached to it which had been stolen also.
The owners of the Landcruiser and the box trailer later identified them. Neither had given permission for Mr Cockburn to take them. This is the offence of minor theft and of dishonestly taking someone else’s motor vehicle without their consent.
On 6 January 2015, Mr Cockburn broke into a Suzuki minivan in Downer, smashing the rear sliding door quarter window in the pillar area.
AFP forensics examined the motor vehicle and from material taken from it matched DNA to that of Mr Cockburn. This is the offence of intentionally damaging property.
After he was arrested, Mr Cockburn appeared in court and was granted bail on 6 June 2014. He remained on bail until he was arrested on 6 January 2015 for the further offences when bail was refused.
On 14 September 2015, he was granted bail to attend the Karralika Therapeutic Community. See R v Cockburn [2015] ACTSC 297.
As a result, Mr Cockburn has been in custody in relation to the relevant offence for 250 days at the date of sentencing.
Subjective circumstances
A Pre-Sentence Report was tendered, as were reports from Karralika Programs Inc, some medical reports, a character reference and Mr Cockburn’s criminal history. Mr Cockburn and his father also gave oral evidence. From this material and counsel’s submissions, I make the following findings.
Mr Cockburn is now 28 years old. He was born in Bateman’s Bay where his father still lives. His parents separated when he was two years old and he was raised by his father who was close to him and has visited him in the Alexander Maconochie Centre and also in the Karralika Therapeutic Community.
When able, Mr Cockburn has provided support to his father, who is in ill health.
Mr Cockburn appears to have had a reasonably stable upbringing. He completed year 9 at school and then undertook an apprenticeship as a mechanic. He has, since leaving school, been continuously employed in the building industry. He became a floor and wall tiler and established his own business which was successful. He managed to earn enough to visit 20 countries overseas and tour around Australia twice.
All this came to a sad end when he was injured in a motor vehicle collision in November 2011. It was an odd accident, as he was in a taxi when it crashed into a power pole on Fairbairn Avenue, adjacent to the Australian Defence Force Academy. He suffered injuries to his neck, upper back and to his lumbar spine. His injuries stabilised but were debilitating and caused him difficulties at home and at work. Eventually, he had to stop working.
Because of that, he did not have the funds to provide him with the necessary treatment for his injuries. He has taken legal action for recovery of compensation for his injuries, but the proceedings have not yet been resolved.
He was seen by a psychiatrist for the civil proceedings. He denied to the psychiatrist that he was using illicit drugs, though that was not consistent with what he told the author of the Pre-Sentence Report; namely, that he had been using methamphetamines for about three years.
The psychiatrist considered that he suffered from depression and anxiety and recommended that he receive care from a psychiatrist and his general practitioner. When he was first remanded in custody, he was referred to the Forensic Mental Health team and received some prescribed medication.
Mr Cockburn had been in a relationship which ended shortly after the motor vehicle collision. He formed a new relationship about 18 months ago. His partner has been supportive and visited him when he was in custody.
Unfortunately, his partner has a problem with drugs also. She gave birth to their daughter in April this year. Because Mr Cockburn was on remand, and because of his partner’s drug use, the baby was taken into care. Care and Protection have been discussing the possibility of adoption for the child.
As a result of the injuries sustained in the motor vehicle collision, Mr Cockburn has suffered ongoing pain. He had to stop working, which led to severe financial difficulties. He began using methamphetamine and this led him to crime.
I did not have details of the drug use involved, but Mr Cockburn sought admission to the Karralika program of residential rehabilitation while he was in custody and, after I granted him bail, he was admitted. His partner has also been admitted.
I have described the Karralika program in R v Kristiansen [2015] ACTSC 159 at [12]-[14]. I take that description into account.
I had two reports from staff at Karralika programs. They both described Mr Cockburn as applying himself well to the program and becoming an active participant.
He said to me that he found it difficult to adjust to the program’s rules and processes. He had become better adapted more recently. He has had no discipline problems in the program.
He has undertaken some parenting courses, as well as a self-discovery course which has led, it is reported, to an increased understanding of his personal treatment issues and to achieve some short to medium term behavioural goals. He has also been an active participant in the Bringing Up Great Kids program. He wants to complete the Karralika program and staff report that he has the capacity to do so.
Mr Cockburn has a criminal history. He first came before the courts in 2006 and in that year, and the next year, was dealt with for three drink-driving offences and one offence of possessing drugs, which I understand to be cannabis, and for which latter offence he received a non-conviction bond.
Since then, he had committed no criminal offences, until he became involved with drugs seriously as a result of the car collision.
Apart for the offences for which I am dealing with him, he was dealt with on 29 October 2014 for driving with a prescribed drug in his oral fluid, as I have already mentioned, and for driving whilst his licence was suspended. He was also dealt with for breaches of a bail undertaking.
His offending escalated, however, from April 2014 through to January 2015, and only came to an end when he was refused bail and remanded in custody.
He used the time in custody to think about his situation; his thinking sharpened by the birth of his daughter while he was in prison and with the threat of her adoption being proposed.
He sought out treatment options, and it was this that led him to apply for, and to be admitted to, Karralika.
He has contact with his daughter and it appears that he and his daughter’s foster mother get on well.
Mr Cockburn further expressed the view that he had the willpower to overcome his drug addiction and to be a good parent to his newborn child.
His referee wrote that Mr Cockburn’s relationship with the referee’s family and described him as a “trusted family friend.” He had, it was said “a great attitude” and he was “a pleasure to have around.” His referee has also offered him a job as a truckie’s offsider, which he may be able to take up, despite his back injury.
Mr Cockburn expressed remorse for his activities and accepted responsibility. It is said, in the Pre-Sentence Report, to be limited by his attribution to his offending to drugs.
I am not sure that this is fair as it suggests that he has not accepted responsibility for drug use which spiralled out of control following the motor vehicle collision.
It is suggested that the risk of his general offending again is assessed as medium due to his unemployment, mental health issues and illicit substance abuse. In the plan he has with his present residential rehabilitation program and the offer of employment, there is room here for a significant reduction in that assessment to a low risk.
Mr Cockburn’s father also asserted that Mr Cockburn, from his knowledge of him, had the willpower to rehabilitate himself.
The offences
The maximum penalty for the offence of demanding money with menaces shows that it is a serious offence. See Muldrock v The Queen (2011) 241 CLR 120 at 133; [31].
The offence is also a serious one because it combines violence or a threat of violence with dishonesty in the taking of money, or attempting to take money, from people.
There are not, however, in this case, aggravating features that are often present in such cases; namely, the use of a weapon, including a replica weapon, or planning and pre-meditation, to any great degree. There seemed little evidence of such pre-meditation or planning, and the Crown, usually careful to assist with reference to relevant factors, did not refer to any. There was also no position held by Mr Cockburn such as that of a police officer, which would have made the offence more serious.
While initially Mr Cockburn was in company, a serious aggravation to an offence of this type, the companion did leave before Mr Cockburn made the final threat. That Mr Cockburn had been in company, however, was no doubt still in the mind of the victim. The offence was somewhat more serious because of this.
Similarly, while Mr Cockburn was persistent with his demands of the victim, there was only one occasion when the demands were made and the incident was only in one episode.
The threat, too, was immediate and did not involve other pressures, such as on the victim’s family or friends, save that, of course, the car belonged to the victim’s partner.
Mr P Bevan, who appeared for Mr Cockburn, referred to some decisions of this Court. These included R v Degioannis (Unreported, Australian Capital Territory Supreme Court, Burns J, SCC 198 of 2011, 16 July 2012), R v Abuchabake (Unreported, Australian Capital Territory Supreme Court, Burns J, SCC 26 of 2011, 20 August 2012), R v Butler (Unreported, Australian Capital Territory Supreme Court, Nield AJ, SCC 364 of 2011, 5 September 2012); R v Conizares (Unreported, Australian Capital Territory Supreme Court, Nield AJ, SC 307 of 2011, 6 September 2012), and R v Schofield (Unreported, Australian Capital Territory Supreme Court, Higgins CJ, SCC 312 of 2011, 17 July 2013). I also noted and read another ACT decision, R v Walls (Unreported, Australian Capital Territory Supreme Court, Nield AJ, SCC 37 of 2010, 12 May 2011).
There are, of course, differences between these decisions and the actual circumstances of the offence and the personal circumstances of the offender here and in those cases. They provide, however, some indication of the way in which the offence should be viewed and identify some of the relevant factors to be considered.
They show also that a custodial sentence of some severity is usually to be imposed for this offence. They also show, however, that, in an appropriate case, that penalty may be suspended fully or partially.
There was reference in the sentencing remarks in those cases, and which I read, to other decisions in other jurisdictions. These, together with some others I read, are R v Cifuentes [2006] QCA 566; R v Lewis [2007] VSCA 24; Marcus v The Queen [2007] NSWCCA 229; R v Taouk [2012] QCA 211 and Manisco v Western Australia (No 2) [2013] WASCA 190.
They were also helpful for principles and approaches but they did not suggest that the general approach I have articulated was inappropriate.
The offence of dishonestly taking someone else’s motor vehicle without that person’s consent is a serious offence but, judged by the maximum penalty, not so serious as the offence of demanding money with menaces.
The car is usually, after a home, the most significant purchase made in this community, and for renters, the most significant one. It is, especially in Canberra, an important possession, for the city is very car dependent. The loss of a car can be very inconvenient and a substantial financial loss to the owner. The courts should and do take the offence seriously.
In this case, there was a significant overlap in the culpability of Mr Cockburn for the offences for it was the car which was part of what was menacingly demanded by him.
Similarly, the assault was serious, but not as serious as the other offences. Violence is to be deplored, and the security and harmony of the community, which is necessary for a stable, democratic society, is disrupted by violence. Again, however, the violence was part of the enterprise which included the demand of money by menaces.
Victim
I have no victim impact statement. I can and do accept however that the experience would have been very frightening for the victim, though he seemed to have been able to withstand the demands to some extent.
I have no hesitation in accepting that the victim will have bad memories of the incident for some time to come.
Consideration
The purposes of sentencing are set out in s 7 of the Crimes (Sentencing) Act. In this case, general deterrence plays a significant part, as the primary offence is a serious one which undermines the safe and secure society. The crime is to be denounced.
Mr Cockburn has, however, made substantial, though somewhat tentative, steps towards his rehabilitation, and I am optimistic about his future. Thus, specific deterrence seems to me to play a lesser role in this case, though the sentence must be structured to support and encourage his rehabilitation.
I have regard to the matters set out in s 33 of the Crimes (Sentencing) Act. Insofar as I know them, they have been set out above.
I also have regard especially to the seriousness of the offences as I have described them above (at [83]-[88]), and to the sentencing practice also referred to above (at [89]-[92]). The Pre-Sentence Report has assessed Mr Cockburn as unsuitable for a community service work condition to a Good Behaviour Order and to serve a term of imprisonment by periodic detention. This is because of his intention to enter residential rehabilitation. Once that has been completed, however, it seems to me that he would then be suitable.
The Pre-Sentence Report has also stated that Mr Cockburn “may benefit from” a deferred sentence order. I do not consider this to constitute a recommendation (s 117(3) of the Crimes (Sentencing) Act), but it seems supportive of his suitability for this sentencing option.
It seems to me that the progress that Mr Cockburn has made justifies me giving him an opportunity to complete his rehabilitation and show that he has put this shameful patch of his life behind him. The birth of his daughter and the desire to regain custody of her is a powerful motivation.
Accordingly, I consider that Mr Cockburn should be given a chance to address the factors that have contributed to his criminal behaviour before he is sentenced.
Mr Cockburn please stand.
1. I convict you of demanding money by menaces on 12 April 2014.
2. I convict you of taking someone else’s motor vehicle dishonestly without consent on 12 April 2014.
3. I convict you of assault on 12 April 2014.
I have decided not to sentence you for these offences at this time.
I note that you are not serving, nor liable to serve, a term of imprisonment for an offence other than the offences for which I am sentencing you.
I have considered the Pre-Sentence Report about you and the other evidence I have heard on sentence.
I consider that you should be given an opportunity to address your criminal behaviour and the drug addiction which has contributed to that behaviour before I sentence you for these offences. I am satisfied that I am abIe to release you on bail under the Bail Act 1992 (ACT). Accordingly, I order that you appear before me at 9.30 am on 2 February 2016 to be sentenced for the offences of demanding money by menaces, of taking someone else’s motor vehicle dishonestly without consent and of common assault.
I will release you on bail, subject to the following conditions:
1. That you accept supervision of the Director-General or her delegate and obey all reasonable directions of the person supervising you;
2. That you complete the Karuna phase of the residential rehabilitation program at Karralika Programs Inc and any additional residential program at the facility for which you are suitable and which is recommended;
3. You consent to the officer in charge of Karralika providing any information about your participation in its programs, your progress and your behaviour to the person supervising you;
4. If you are discharged from or leave that program before it is completed, you report in person, within one working day, to the Registrar of the Supreme Court, with a view to having your bail reviewed;
5. Once you complete the Karralika program, you notify the Registrar of the Supreme Court and the Director of Public Prosecutions of your completion and of where you are to reside;
6. After you leave Karralika, you reside at either Lot 38 Wharf Road, Surfside, New South Wales, until you return to court, and during that period, report to the officer in charge of Bateman’s Bay police station each Tuesday and Friday, or, if agreed by the person supervising you, you will reside at an address in Canberra, in which case you are to notify that address to the Director of Public Prosecutions and report to the officer in charge of Civic police station each Tuesday and Friday;
7. You refrain from consuming illicit drugs;
8. You submit to urinalysis when the person supervising you reasonably requires it.
I indicate that if you do not comply with this order and the bail conditions, I consider that you should be sentenced for a term of immediate imprisonment for approximately three years, but backdated to take into account the pre-sentence custody. I indicate that if you comply with this order and the bail conditions, I consider that you should be sentenced to imprisonment for a period of approximately two years and six months, which will be suspended after serving the period that you have already served, and with a Good Behaviour Order, and that may include some community service condition. It depends on how things go.
I explain to you the following. If you breach the conditions of the bail or the order, you are liable to be arrested and brought before the court. I may review the deferred sentence order at any time. In addition to me reviewing the deferred sentence order on my own initiative, the Director-General, the Director of Public Prosecutions or yourself may apply to the court to have the order reviewed. On a review of the deferred sentence order, I may take no action, or warn you about the need to comply with the conditions of the order and your bail, or amend the deferred sentence order conditions or cancel the order. If your bail is revoked, the deferred sentence order is automatically cancelled.
[His Honour then spoke directly to Mr Cockburn]
Mr Cockburn, no doubt your counsel with explain that position to you. I am satisfied and I am optimistic that you are on the right track and that you have got the motivation and the willpower to do it. It is going to be hard. It is not going to be easy, as you know, but you have kind of moved into it, as I understand it from Karralika, and I do urge you to take as much support from Karralika as you can. Stay there as long as you reasonably can, but also get out into the community, because that is where the real test will come, when you are not supported by the residential rehabilitation and when you have got to knock around with the people that you knocked around with before, when you were into the drugs.
If you can put this terrible, shameful criminal period behind you, then you can obviously make a contribution to the community and to your family, and that is, as I understand it, what you are really after. The court will support you in that but, if you do not take the opportunity, then we have no alternative and you are back inside. The most important thing is to work on your rehabilitation, your parenting and your relationship, but after that, the second most important thing is that, if things go wrong, and in particular if you leave Karralika or you start using drugs, come back to your probation officer or the court and we will see what we can do. I do not guarantee that you will not go back inside, that depends on the circumstances and what happens.
Certainly the court would want to try to encourage you to put all this behind you and move on and contribute to the community, as you have in the past. If you run away, if you put your head in the sand, then there is no option. If you come back, then there is every option and every possibility.
I hope this works. I have had some successes in the past; I have had some failures. I hope you are one of the successes, not the failures, and I wish you good luck, and I hope that, in February, we will be able to say you have done your time, and although you are under supervision for a substantial period of time, you are back in the community and hopefully you can be reunited with your daughter.
| I certify that the preceding one hundred and eighteen [118] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Refshauge. Associate: Date: 9 November 2015 |
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