R v Colefax - [2017] ACTSC 214

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Colefax
Citation:	[2017] ACTSC 214
Hearing Date:	28 July 2017
DecisionDate:	2 August 2017
Before:	Penfold J
Decision:	See [12] below.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of good behaviour undertaking constituted by relatively minor offending late in period of undertaking – other indications of rehabilitation progress – term of good behaviour order extended for further 12 months.
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) Crimes Act 1914 (Cth)
Cases Cited:	The Queen v PM (No 2) [2015] ACTSC 358
Parties:	The Queen (Crown) Glen Maxwell Colefax (Offender)
Representation:	Counsel Ms T Skvortsova, Ms J Campbell (Crown) Mr R Davies (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Numbers:	SCC 86 of 2014; SCC 87 of 2014

The offences

On 13 February 2015, I sentenced Glen Colefax for an offence of threatening to cause serious harm to a Commonwealth public official committed on 17 January 2014. In doing so I took into account four other offences, being two relatively minor traffic offences, an offence of dangerous driving and an offence of lighting a fire during a total fire ban.

In short, Mr Colefax was affected by Ice when he drove a motor vehicle erratically along Belconnen Way and attracted the attention of police. He was pursued by police, and stopped only when, after several turns, he found himself to be in a cul-de-sac. He got out of the car, and attempted to frighten the police officers away by waving at them two items had had taken out of his car, being a container of brake fluid and a container of chlorine. When police chased him, he appeared to be threatening to throw one of the containers at them; when one of the police officers drew his firearm, Mr Colefax ran away and police ran after him. He threw the containers down, thereby starting a fire in the dry vegetation nearby. During these events, he also managed to burn his own foot, and in due course was treated at hospital.

I sentenced Mr Colefax to 27 months imprisonment, reduced from three years for his guilty plea. That sentence was backdated six months to account for four months of pre-sentence custody, and another two months recognising seven months spent in residential rehabilitation. I then directed that Mr Colefax be released forthwith on giving security in the amount of $200 and signing an undertaking to be of good behaviour for the next two years. That good behaviour undertaking was therefore to run until 12 February this year.

Unfortunately, Mr Colefax has not managed to be of good behaviour for the whole two years. On 28 November 2016, just over 21 months into the term of the good behaviour undertaking, he committed an offence of, as a repeat offender, having a prescribed drug, being methylamphetamine (Ice), in his oral fluid within the relevant period after driving…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Colefax

Details

AGLC: R v Colefax [2017] ACTSC 214
Case: [2017] ACTSC 214
Decision Date: 2 August 2017

CaseChat Overview and Summary

In the case of R v Colefax, the respondent, Colefax, faced the court following a breach of a good behaviour undertaking. The matter was heard in the Magistrates’ Court of Victoria. The nature of the dispute centred on whether the breach, which was relatively minor and occurred late in the period of the undertaking, warranted an extension of the term of the good behaviour order. Additionally, the court considered other indications of Colefax's progress towards rehabilitation.

The primary legal issue before the court was whether the breach of the good behaviour undertaking, combined with other evidence of Colefax's rehabilitation, justified an extension of the order. The court needed to weigh the severity of the breach against the respondent's demonstrated efforts towards rehabilitation. This involved assessing the circumstances of the breach and the overall conduct of Colefax during the period of the undertaking.

The court determined that the breach, while not severe, did occur towards the end of the undertaking period. However, the court also noted other positive indicators of Colefax's rehabilitation, including his compliance with other conditions and his efforts to address underlying issues. Based on this, the court concluded that extending the term of the good behaviour order by a further 12 months was appropriate. This extension would provide Colefax with additional time to consolidate his rehabilitation efforts and reduce the risk of further offending.

In light of the above, the court ordered that the term of the good behaviour order be extended by a further 12 months. This extension was seen as a balanced approach that recognised both the breach and the respondent's progress towards rehabilitation.

Orders

Orders of the court

See [12] below.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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