R v Colefax
[2017] ACTSC 214
•2 August 2017
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 a motor vehicle. On 4 April this year, he was convicted in the Magistrates Court, fined $400 and disqualified from driving for 18 months.
Evidence
In evidence before me on the breach are:
(a)the statement of facts for the new offence;
(b)the ACT Government Analytical Laboratory certificate recording the presence of methylamphetamine in Mr Colefax's oral fluids;
(c)Mr Colefax's criminal history;
(d)my sentencing remarks made in February 2015;
(e)an email from Ms Joanne Lutz of ACT Corrections reporting on Mr Colefax's compliance with his supervision obligations under the last good behaviour undertaking.
The prosecution also relied on the evidence before me in 2015.
On behalf of Mr Colefax, there were tendered certificates for a number of courses he had completed since early 2015 dealing, relevantly, with literacy skills, and drug and alcohol awareness for drink- or drug-driving offenders. Ms Lutz reported that Mr Colefax had been compliant with the supervision conditions attached to the 2015 good behaviour order, and had engaged sufficiently well for Corrections to terminate the supervision requirement after around 18 months.
Counsel for Mr Colefax said that he had been employed until five months ago, when his employer had shut down its Canberra operations. He was now preparing to study for his Year 10 certificate at the Canberra Institute of Technology. He was also receiving mental health support, including accepting medication and seeing a psychologist.
In considering whether I should require Mr Colefax to serve the remaining sentence or extend the period of the release order, I have had regard to those matters that were identified by Refshauge J, in The Queen v PM (No 2) [2015] ACTSC 358, as relevant to the question whether to impose a suspended sentence or to re-sentence an offender, that are relevant or known to me in this case, as follows:
(a)The nature and gravity of the breach and, particularly, whether the breach may be regarded as trivial: The new offence, while a matter of concern, was substantially less serious than the offence for which I dealt with Mr Colefax in 2015.
(b)Whether the breach evinces an intention to disregard the obligation to be of good behaviour or to abandon any intention to be of good behaviour: I do not see the new offence as indicating any specific intention on Mr Colefax's part to disregard or abandon his good behaviour order obligations.
(c)Whether the breach demonstrates a continuing attitude of disobedience of the law: Any resumption of illicit drug use is in fact in breach of the law, but it is not so clear that in general, or in Mr Colefax's case in particular, it reflects any general attitude of disobedience towards the law.
(d)Whether the breach amounted to the commission of another offence of the same nature as that which gave rise to the suspended sentence: Although the new offence involved behaviour of the same kind that in turn led Mr Colefax into the commission of the offences giving rise to the original sentence, there was no repetition of that more serious behaviour despite this more recent use of illicit drugs; in this context it is appropriate to note that giving up the use of illicit drugs can be a long, slow process, and routinely involves multiple relapses before it is achieved.
(e)The length of time during which the offender observed the conditions: As noted, Mr Colefax did not offend until after the first 21 months of the good behaviour undertaking. If I had made a good behaviour order for that minimum available period, the new offence would not have breached the good behaviour undertaking.
(f)Whether there is a gross disparity between the conduct constituting the breach and the sentence to be restored: Given that the maximum term of imprisonment available for the drug-driving offence is three months, and the unserved term that could be imposed is 21 months, there would certainly be a great disparity between the new offending and any imposition of the outstanding part of the original sentence.
No pre-sentence report had been ordered when the breach was listed some months ago. However, at the hearing of the breach proceedings, the prosecutor submitted that, although it was not necessary to impose the outstanding sentence, it would be appropriate to add further supervision conditions to the good behaviour undertaking made in conjunction with extending the recognizance. Since, as noted, Mr Colefax's supervision under the previous good behaviour undertaking had been finalised after only 18 months due to his compliance, it did not seem to me appropriate to include a supervision condition in the new good behaviour undertaking without an assessment from Corrections about whether there was any further help they could give Mr Colefax and, more generally, whether there would be any point in such a condition.
Accordingly, I ordered a Court Duty report from Corrective Services, dealing only with whether Mr Colefax would benefit from Corrective Services supervision in respect of his drug use and drug rehabilitation. Today I received a Court Duty report which indicated that Mr Colefax had expressed a wish to stop using illicit substances, but is not willing to consider residential rehabilitation. However, the duty officer suggests that Mr Colefax might benefit from supervision to support his drug rehabilitation through referral to, and monitoring of engagement with, services offering alternatives to residential rehabilitation.
Sentence
[Mr Colefax was initially re-sentenced as if he had breached an ACT good behaviour order. When it emerged, later the same afternoon, that his original offence had been a Commonwealth offence, I re-opened the sentencing proceeding under s 61(1)(a) (that the court had made a sentence-related order that was contrary to law), gave the parties an opportunity to be heard, and then replaced the orders made earlier in the afternoon with findings and orders to the following effect:
(a)The conviction recorded in the Magistrates Court on 4 April 2017 (for an offence committed in November 2016) put Mr Colefax in breach of his recognizance dated 13 February 2015.
(b)Under s 20A(5)(c)(ib) of the Crimes Act 1914 (Cth), the period for which Mr Colefax is required to give security to be of good behaviour is extended by 12 months from 2 August 2017.
(c)On or before 4pm on Friday this week, Mr Colefax is to attend Corrective Services at Level 1, 249 London Circuit, Civic to arrange his supervision.
I also directed that the requirement for Mr Colefax to attend Corrective Services to arrange his supervision should be included in the new recognizance document, and that the document should also record that I did not see any need for Mr Colefax to be supervised except in relation to his engagement with services offering drug rehabilitation assistance (not being residential rehabilitation).
Counsel and I then considered whether the 2015 sentencing order needed to be re-opened and corrected, but concluded that it had in fact been expressed in terms that complied with the requirements of the Commonwealth legislation.
Several minor consequential corrections have been made to the sentencing remarks as delivered.]
| I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Date: 16 August 2017 |
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