R v Coleman
[2021] ACTSC 349
•7 June 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Coleman |
Citation: | [2021] ACTSC 349 |
Hearing Dates: | 28 May 2021 |
DecisionDate: | 7 June 2021 |
Before: | Refshauge AJ |
Decision: | 1. That the charge for the offence of drive whilst unlicensed be amended by omitting ‘repeat’ and substituting ‘first’. 2. William John Coleman be convicted of aggravated robbery and be sentenced to 29 months imprisonment, commencing from 30 December 2020 and expiring on 29 May 2023. 3. William John Coleman be convicted of dishonestly driving a motor vehicle without the owner’s consent and be sentenced to 13 months imprisonment, commencing from 30 October 2022 and expiring on 29 November 2023. 4. William John Coleman be convicted of the first count of burglary and be sentenced to 12 months imprisonment, commencing from 30 May 2023 and expiring on 29 May 2024. 5. William John Coleman be convicted of the second count of burglary and be sentenced to 12 months imprisonment, commencing from 30 November 2023 and expiring on 29 November 2024. 6. William John Coleman be convicted of the first count of minor theft and be sentenced to 2 months imprisonment, commencing from 14 October 2024 and expiring on 13 December 2024. 7. William John Coleman be convicted of the second count of minor theft and be sentenced to 1 month imprisonment, commencing from 14 November 2024 and expiring on 13 December 2024. 8. William John Coleman be convicted of the third count of minor theft and be sentenced to 2 months imprisonment, commencing from 28 October 2024 and expiring on 27 December 2024. 9. William John Coleman be convicted of drug driving and be required to sign an undertaking to comply with the offenders Good Behaviour Obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 6 months from today, 7 June 2021, and be disqualified from holding or obtaining a driver license for 12 months. 10. William John Coleman be convicted of driving whilst disqualified and be required to sign an undertaking to comply with the offenders Good Behaviour Obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months from today, 7 June 2021. 11. A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for William John Coleman for 2 years from today, commencing on 7 June 2021 and ending on 6 June 2023, in respect of the primary offence of aggravated robbery. 12. That Order be extended to the two offences of burglary, the offence of dishonestly driving a motor vehicle without the owner’s consent and the three offences of minor theft, which are associated offences of the primary offence. 13. It be noted that the recorded convictions and sentences imposed for the primary and associated offences be hereby incorporated into the Drug and Alcohol Treatment Order in the Custodial Part of the Order. 14. The custodial period of the Drug and Alcohol Treatment Order for the primary and associated offences be suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 7 June 2021, until 27 December 2024. 15. William John Coleman be required to sign an undertaking to comply with the offender’s Good Behaviour Obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the end of the Drug and Alcohol Treatment Order, 7 June 2023, until the end of the total sentence, 27 December 2024, with a probation condition that he accept supervision by the Commissioner of ACT Corrective Services or his delegate and obey all reasonable directions of the person supervising him including as to urinalysis, counselling and treatment. 16. For the Treatment and Supervision Part of the Drug and Alcohol Treatment Order: a. The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed; b. William John Coleman attend from this Court at Canberra Recovery Services, Fyshwick and admit himself to the residential drug rehabilitation program there by 1:00pm today, 7 June 2021; c. William John Coleman be directed to complete the program at Canberra Recovery Services, not leave the program until he has completed it and obey all rules of the programs of the facility and the directions of the person in charge of the program; d. Should William John Coleman leave or be discharged from the facility before completing the program, he report to ACT Corrective Services by 4:00pm on the next business day with a view to having his Drug and Alcohol Treatment Order reviewed; e. William John Coleman undertake any program, treatment, case management or urinalysis or other program as may be required by any member of the Treatment and Supervision Team; and f. William John Coleman comply with any directions of the Court from time to time about attendance at Court in person or by electronic means. 17. William John Coleman appear by electronic means in Court on Friday 18 June 2021 at 12:30 pm. 18. William John Coleman be directed to attend the Court Registry before he leaves the Court precincts to sign a sealed copy of this Order. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated Burglary – Burglary - Driving a Motor Vehicle without the Owner’s Consent – Minor Theft – Drug Driving – Driving whilst Disqualified – Pre-Sentence Custody - Good Behaviour Order – Rehabilitation – Drug and Alcohol Treatment Order |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) ss 85, 131, 149, 151 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 12A, 33, 46J, Table 46K, 63, 80W, 81, 85 Road Transport (Driver Licensing) Act 1999 (ACT) s 31 |
Cases Cited: | Allred v The Queen [2015] ACTCA 21 Blundell v The Queen [2019] ACTCA 34 Stafford v The Queen (1997) 97 A Crim R 85 |
Texts Cited: | Supreme Court of the ACT, Practice Direction 2 of 2018: Criminal Case Conferences |
Parties: | The Queen (Crown) William John Coleman (Offender) |
Representation: | Counsel M Lucero (28 May 2021); M Smith (7 June 2021) (Crown) B Morrisroe (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Offender) | |
File Numbers: | SCC 30 of 2020 SCC 31 of 2020 |
REFSHAUGE AJ
Introduction
In 2011, French CJ commented that, “rehabilitation, if it can be achieved, is likely to be the most durable guarantee of community protection and is clearly in the public interest”: Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 536-7; [32].
That does not mean, however, that although an object of sentencing in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) is “to promote the rehabilitation of the offender”, rehabilitation is paramount nor elevated above any of the other objects of sentencing. See, though, on somewhat different legislation: Stafford v The Queen (1997) 97 A Crim R 85.
This approach, however, has been an underpinning of policies and programs in the ACT, for example, addressing those who are dependent on alcohol or other drugs and whose dependency has predisposed them to commit crimes, which policies and programs are generally based on a harm minimisation policy. A snapshot of this history is in R v Crawford (No 3) [2020] ACTSC 369 at [4]-[5].
The ACT established, in 2019, a comprehensive program for addressing the rehabilitation of those whose alcohol or other drug dependency has caused them to commit crimes, a program centred around the newly created Drug and Alcohol Treatment Order (Treatment Order) under s 12A of the Sentencing Act. This program is administered by the Supreme Court in its Drug and Alcohol Sentencing List.
This is an option that William John Coleman has sought after pleading guilty to offences of aggravated robbery, dishonestly driving a motor vehicle without the owner's consent, two offences of burglary, three offences of minor theft, an offence of driving with a drug in his oral fluid (as a first offender) and driving whilst unlicensed (as a first offender). Originally, he was charged as a repeat offender, but there is no earlier offence and the information has been amended accordingly.
Included in the Crown Sentencing Tender Bundle, tendered without objection as the Crown evidence on sentence, were the committal and transfer documents (see ss 90A and 90B of the Magistrates Court Act 1930 (ACT), the Agreed Statement of Facts, Mr Coleman's Criminal History and parole documents, being the Parole Order made on 26 February 2019, its cancellation on 11 May 2019 and a further Parole Order made on 7 July 2020.
In addition, it contained three documents which constituted the Drug and Alcohol Treatment Assessments (Suitability Assessments) under s 46J of the Sentencing Act. None of the contents of the documents included in the Crown Tender Bundle were the subject of any challenge. These were all admitted into evidence.
On behalf of Mr Coleman, his counsel, Ms B Morrisroe, tendered without objection, a Psychological Report of Ms Vanessa Edwige dated 28 February 2020, including her Curriculum Vitae, and eight certificates of completion of Courses by Mr Coleman dated variously between 14 April and 11 May 2021, as well as one additional undated certificate as to the completion of two courses on 22 March 2021 but otherwise undated. There was no challenge to the contents of these documents and they too were admitted.
On the basis of these documents, the following findings are made.
Facts
10. On 2 June 2019, Mr Coleman went to an independent supermarket at Isabella Plains, ACT, and walked to the back of the storeroom reserved for staff only. He took four bottles of alcohol from the shelves. The alcohol had a value of $238.96. He then left the store without paying that amount. These events constituted the first offence of minor theft.
11. Between 3 and 11 June 2019, Mr Coleman drove a motor vehicle, a Holden Jazz sedan, which had been stolen from a residence in Garran, ACT. The evidence does not enable me to say how many times or how far Mr Coleman drove the vehicle, but he did not have the owner's consent to do so and, hence, these facts founded the charge of dishonestly driving a motor vehicle without the owner's consent.
12. On 4 June 2019, Mr Coleman drove the stolen vehicle to another independent supermarket, this time in Gowrie, ACT, and initially approached the cashier clerk at about 1:40pm asking for assistance. The clerk left the counter while Mr Coleman remained there, but soon left. He returned about 20 minutes later and walked directly to the cashier again, asking for change for a one dollar coin. When the clerk opened the till, Mr Coleman produced a large knife, brandishing it towards the clerk, demanding that he give him all the money.
13. The clerk, terrified, stepped back from the register and put his hands in the air. Mr Coleman reached into the till and took most of the notes from the cash drawer. He dropped a note on the floor and demanded that the clerk pick it up. Still terrified, the clerk picked it up and Mr Coleman took it and ran from the store with all the money he had taken. He got into the stolen vehicle and drove away. These facts justified the laying of the charge of aggravated burglary.
14. On 6 June 2019, at about 3:10am, Mr Coleman drove the stolen motor vehicle to a hairdressing salon in Palmerston, ACT. Using a hammer which, with a tyre iron, he was carrying, he smashed the front glass door and entered the premises. He went into the back room and rummaged through the items there. There was no evidence of ransacking or damage, other than to the front door. This was the basis for the first offence of burglary.
15. He then took a small set of digital scales, but left with them when the store alarm sounded. The scales were worth $13. This was the second offence of minor theft, associated with the burglary.
16. He drove away and later, at about 5:44am, went to a childcare centre in McKellar, ACT, approaching the front door, still carrying the hammer and tyre iron, climbing a fence to enter the grounds. He crossed the courtyard, used the hammer to smash the front door and entered the premises. He later left. There was no evidence of theft, ransacking or other damage, except to the front door. This offence constituted the second offence burglary.
17. On 9 June 2019, Mr Coleman drove the stolen vehicle, with a co-accused as a passenger, back to the independent supermarket at Isabella Plains and walked inside. They walked to the alcohol section and the co-accused returned to the counter and spoke to the cashier clerk, distracting her, while Mr Coleman entered the back room and took five bottles of alcohol from the shelves and placed two in his backpack. He then left the store. The bottles taken from the store were worth a total of $314.95. This constituted the events justifying the charge of the third offence of minor theft, committed jointly with the co-accused.
18. Finally, on 10 June 2022, Mr Coleman and the co-accused were standing beside the stolen motor vehicle outside an apartment complex in Gowrie. Mr Coleman and the co-offender, however, got into the car when police arrived and Mr Coleman drove it a short distance before police arrested him. They tested him for drugs and the test results disclosed cannabis and methylamphetamine. He was charged, as a result, with driving with a drug in his oral fluid.
19. Despite driving the motor vehicle, Mr Coleman had never held a driver licence in the ACT and so was an unlicensed driver. As noted (at [5]), he was charged originally as a repeat offender, although there was no earlier offence, and the information has been amended to show the correct charge as a first offender. See R v Hancock [2021] ACTSC 52 at [53]-[58].
20. Later, the Crown, despite their submissions otherwise being comprehensive and very helpful, submitted that the pleas of guilty were entered in the face of overwhelming evidence. No other evidence was tendered. The evidence that justified this submission was not contained in the Agreed Statement of Facts and no such evidence was tendered by the Crown or admitted on their tender. None of the evidence admitted on the tender of Mr Coleman through his counsel went to the strength of the Crown case.
The proceedings
21. As noted above (at [18]), police arrested Mr Coleman on 10 June 2019. He was detained by police until appearing before the ACT Magistrates Court on 11 June 2019, when he was charged with all of the offences, save those of driving with a prescribed drug in his oral fluid and driving while unlicensed. He was remanded in custody. At the time, he had been released on parole on 6 March 2019 from a period of 5 years and 10 months imprisonment for 30 offences, including 10 offences each of burglary and theft, imposed on 16 August 2016.
22. A warrant for his arrest was issued on 11 June 2019 by the Sentence Administration Board which had cancelled his parole on 11 May 2019. The delay in issuing the warrant seems quite odd. In cancelling the Parole Order, the Sentence Administration Board set the period for the period of imprisonment to be served as a result of the cancellation of the Parole Order which would commence on 11 June 2019. The parole provisions are somewhat complicated and are dealt with below (at [84] to [89]).
23. On 9 July 2019, after one adjournment, Mr Coleman was charged with the two further offences, being the offences of driving with an illicit drug in his oral fluid and driving whilst unlicensed. The proceedings were adjourned to 3 September 2019 when he entered pleas of not guilty to all offences. The proceedings were then further adjourned on three occasions to 8 January 2020 when his pleas of not guilty were confirmed. After one further adjournment, he was committed for trial to the Supreme Court on the indictable offences and the summary only offences, being related offences, were transferred to the Supreme Court also. He remained in custody.
24. The proceedings took an unusual course in the Supreme Court on committal. The Case Statement and Indictment were filed on 19 March 2020. A Criminal Case Conference was set for 3 August 2020. The Court conducted a Pre-Trial hearing held on 19 June 2020. On 7 July 2020, the Sentence Administration Board granted Mr Coleman a further Parole Order to be released on 15 July 2020. That might seem, perhaps, a little odd as Mr Coleman was, on both days, remanded in custody. That is neither uncommon (see R v Forrest (No 2) [2017] ACTSC 83 at [168]) nor inappropriate. Each decision as to parole and as to bail needs to be considered on its own terms and not be inappropriately affected by the other.
25. Mr Coleman then applied for bail. It was proposed that he enter a residential drug rehabilitation agency in New South Wales, but it became apparent that a warrant had been issued for his arrest in that state. Burns J was ultimately not convinced that he could comply with the terms of his bail and refused the application. When the matter came before the Criminal Case Conference (see Supreme Court of the ACT, Practice Direction 2 of 2018: Criminal Case Conferences), it was held over three sessions. On 6 November 2020, the issues were resolved.
26. Details were not provided of what occurred, but a fresh Indictment was filed on 1 February 2020, on which day Mr Coleman was arraigned on it and pleaded guilty to all charges. The earlier five counts of dishonestly driving another motor vehicle without the owner's consent, pleaded in the first Indictment, were included in one rolled up charge on the second Indictment.
27. It was clear that it was intended that Mr Coleman would be seeking that a Treatment Order be made. The Court ordered an Eligibility Assessment for a Suitability Assessment (as to which, see R v McHughes [2021] ACTSC 92 at [6]-[8]) and, when found eligible, Suitability Assessments were ordered and a date for sentence set.
28. The period of Pre-Sentence Custody is addressed below (at [81]-[88]).
The offences
29. Section 33(1) of the Sentencing Act sets out matters which a court deciding how to sentence an offender must consider. Included in these are the nature and circumstances of the offence: s 33(1)(a). The nature of the offence involves an assessment of the harm caused by the offence and the seriousness with which it is to be viewed. The High Court in Markarian v TheQueen [2005] HCA 25; 228 CLR 357 at 372; [30]-[31] has explained how the maximum penalty prescribed for the offence is to be viewed in this context. The Court there said:
Careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.
30. The circumstances of the offence are made up of various parts. Of course, the facts, as set out above (at [10]-[20]), are primary. Equally important to identify, however, are the particular factors that can make the instant version of the offence such as to warrant the particular sentence. This requires an assessment of its seriousness. The relevant factors can be identified from current sentencing practice, which s 33(1)(za) of the Sentencing Act also requires the court to consider. The identity of these factors comes from the collective wisdom of sentencing and appellate judges which is current sentencing practice.
31. Aggravated robbery is an offence contrary to s 310 of the Criminal Code2002 (ACT) which sets a maximum penalty of 25 years imprisonment or a fine of $400,000 or both. It is, thus, a very serious offence. It is, of course, an offence of both violence and dishonesty, no doubt one of the reasons why it is regarded so seriously. Unjustified violence is never acceptable in a civilised society and, of course, almost invariably creates harm, even if not physical, at least mental harm for the victims.
32. Dishonesty offences deprive people of property of value, sometimes the more valuable to them because the personal or sentimental value, which can be more valued by the victim than the actual monetary worth. They can deprive the victims of property that they have worked hard to obtain and have unfortunate effects more widely through insurance premiums generally: see R v White [2014] ACTSC 158 at [30].
33. Section 310 of the Criminal Code specifies the matters that aggravate the robbery, namely whether the offender is in company with another or other people, or whether the offender has an offensive weapon with him or her. In general, the use of a weapon is a more serious version of the offence: Allred v The Queen [2015] ACTCA 21 at [40]. The courts regard knives also as serious weapons: R v Forrest (No 2) at [87].
34. In this jurisdiction, the Court of Appeal in Hall v The Queen; Barker v The Queen [2017] ACTCA 16 at [49] adopted the identification of factors of a relatively common armed robbery in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at 380; [162] as persuasive, which can also assist in identifying aggravating factors as also relevant: 381; [170]. They are, however, not the full range of relevant factors in relation to such a crime.
35. In this case, in addition to the possession of the knife, Mr Coleman brandished the knife and it made the cashier clerk quite terrified. It was not sophisticated, but there was a degree of planning as Mr Coleman did appear to reconnoitre the supermarket before returning later.
36. The amount of money taken by Mr Coleman was $1,150. It is not a large sum, though it would be significant for him. It is also likely to be a reasonably significant part of a day's takings for a suburban supermarket. The victim of this crime was the cashier clerk presiding over the supermarket's till.
37. The offence was committed in the early afternoon where there could be members of the public present, and while, to a certain extent, confined, it did not seem that there was a high degree of vulnerability for the clerk. On the state of the evidence, it could not be found that there were no such members of the public at least in the vicinity of the supermarket.
38. It was a version of a serious offence with some aggravating features, but by no means a particularly serious version of the offence.
39. Burglary is an offence prohibited by s 311 of the Criminal Code, which prescribes a maximum sentence of 14 years imprisonment or a fine of $224,000 or both. While a less serious offence than aggravated robbery, it is still a serious offence and the courts are obliged to treat it as such.
40. Burglary is an offence of dishonesty. It has some of the effects referred to above (at [32]). It also amounts to an invasion of a private space and can have at least unsettling effects on the occupants, perhaps more so for residential targets than commercial targets, but these are, undoubtedly, often unsettling as well. Any dispossession of property as a result of a burglary is likely, however, to be separately charged.
41. The Court has set out in R v Hancock at [33] the factors that are generally required to be considered and identified by the courts in considering this offence. In this case, the burglaries were somewhat less serious as they were of commercial premises and entered at a time when the occupants were unlikely to be present. Mr Coleman, however, did cause damage to effect entry, though there was no evidence as to the cost of such damage. There was, however, no evidence of vandalism, damage or ransacking on the premises.
42. While there was no direct evidence of his motivation for the burglaries, it can be inferred that it was to feed his drug dependency. Mr Coleman clearly knew where the premises were and drove quite a long way from his home, if that was where he started his journey, to where the premises were. A small item of low value was taken from one of the premises, namely a digital set of scales valued at $13 and nothing from the other. They were relatively unremarkable burglaries of commercial premises.
43. Dishonestly driving a motor vehicle without the owner's consent is made an offence by s 318(1) of the Criminal Code and attracts a maximum penalty of 5 years imprisonment or a fine of $80,000 or both. The offences deprive the owner of the use of the motor vehicle which, especially perhaps in Canberra, is often not only a convenience but a necessity. It is also, often, the most expensive purchase of its owner, after the owner's residence.
44. The offence was a ‘rolled up’ count, that is, it encompassed six specific occasions of driving in the one charge. The nature of such a charge has been considered previously in R v Forrest (No 2) at [161]-[164], summarised in R v John [2017] ACTSC 144 at [107] as follows:
· for sentencing purposes, the rolled up count is one charge and the sentence may not exceed the maximum penalty for the offence charged;
· nevertheless, the criminality encompassed within the count is greater than were the count to be constituted by only one offence;
· the sentence is not necessarily, and perhaps not unusually, the sum of the sentences that would be imposed for the offences comprising the count, though in an appropriate case it may be; and
· the fact that the count is a rolled up count may have a bearing on the application of the relevant principles as to accumulation and concurrency.
45. Here, as noted, there were six occasions of driving; twice on 4 June 2019 (to and from the supermarket at Isabella Plains on two occasions), once on 6 June 2019 to the two places he burgled, again on 9 June 2019 to the Isabella Plains supermarket and, finally, in the presence of police, on 10 June 2019. It is relevant that Mr Coleman used the motor vehicle for the commission of other offences - an aggravating feature. While the evidence was unclear, the address on the Magistrates Court Bench Sheet for Mr Coleman was in Narrabundah, which means that to drive from there to Isabella Plains, Palmerston and McKellar is, in Canberra terms, quite a significant distance, a relevant factor. Of course, it assumes that this was his correct address at the time.
46. It is also relevant that Mr Coleman had the use of the car for over a week, a not inconsiderable time. It appears, too, as though he would have continued to drive it had he not been arrested by police. Finally, the motor vehicle appears to have been recovered by police and there was no evidence of any damage to it.
47. Section 321 of the Criminal Code criminalises minor theft, that is a theft of property of a value of $2,000 or less. On conviction, the offender is liable to a maximum penalty of six months imprisonment or a fine of $8,000. In one case, the offence to which Mr Coleman pleaded guilty was committed following an agreement with his co-offender to commit the theft and the offence was committed in the course of carrying out that agreement. It, too, is a dishonesty offence with the effects referred to above (at [32]).
48. The principal consideration is the value of the property stolen in the offence. In the case of the theft of alcohol, the value was $238.96 in the first case and, in the third theft jointly committed, the value was $314.95. In the case of the second theft of the digital set of scales, the value was $13. Thus, the values were not particularly high. It is noted that the co-offender has been sentenced for her part in the third theft and, on 7 May 2021, a Good Behaviour Order for 12 months was made.
49. As to the offence of driving with a prescribed drug in his oral fluid, this is an offence contrary to s 20 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) and is punishable by a maximum fine of $1,600. It also imposes an automatic disqualification from obtaining or holding a driver licence for three years, unless the Court reduces that period, but cannot reduce it to less than six months. The risk to the public from impaired driving is clear. It is a risk, not merely to passengers, but to other road users, both drivers and cyclists and also pedestrians and even, regrettably, those living in residences adjacent to the roads. The period and distance of driving in this case was, on the evidence, a short distance.
50. Finally, s 31(2) of the Road Transport (Driver Licensing) Act 1999 (ACT) makes driving by a person who has never held an Australian driver licence an offence and specifies a maximum penalty for a first offender of $3,200 and, for a repeat offender, imprisonment for 6 months and a fine of $8,000. Interestingly, the test in s 31(5) for never having held a driver licence is that the person has not held such a licence at any time during the five years before being convicted of the offence charged. It appears that the person may have held such a licence 6 or more years prior to that conviction, perhaps even for 30 or 40 years.
51. This offence is charged for the whole of the period encompassed by the other offending. The period and distance are, therefore, quite significant. It does seem to be a contumacious version of the offence, though not in the sense that it is wilfully disobedient to a court order, but in this case to the law itself. While avoiding double punishment, it is relevant that the driving was instrumental in the commission of other offences.
52. The offences in reality, though some days apart, constitute a course of conduct “of a series of criminal acts of the same or similar character”: s 33(1)(c) of the Sentencing Act. This perhaps shows that it is little more serious than an isolated opportunistic transaction: see R v Di Bitonto [2016] ACTSC 280 at [94].
Subjective circumstances
53. Mr Coleman is of Aboriginal heritage, an Awabakal man, the only child of his parents' union. He had a tumultuous upbringing. His mother and father separated when he was two years old and he remained with his mother. She re-partnered, but his step-father was abusive to his mother and Mr Coleman's childhood was marred by alcoholic abuse and domestic violence, leading him to leave home when he was 15 years old, as his step-father did not want him to stay.
54. The domestic violence to which Mr Coleman was exposed was described by Ms Edwige as “significant”. She pointed out that, “children who live in homes where there is violence grow up in an environment that is unpredictable, anxiety provoking and creates and prolonged sense of fear”. Such harm, she noted, “can manifest in intergenerational cycles of trauma, violence and disadvantage”. As an example, Mr Coleman watched his step-father hit his mother across the face, causing black eyes and other significant injuries.
55. He spent about 12 months with his maternal grandfather and with his 9 maternal aunts at different points in his life, but moved onto a life of unstable accommodation, drug dependence and periods of incarceration. He learnt little of his Aboriginal culture and felt a sense of loss, though he tried to address this while in custody with cultural activities and supports. This left him with cultural confusion and a feeling of being lost within his identity.
56. This was partly through the death of his paternal grandmother when he was 13 years old and, as the matriarch of the family, she held the cultural knowledge that ultimately died with her. He has not had any sorry business in the last two years, though many family members have died. He has not had the opportunity to grieve or mourn culturally due to his lack of knowledge of culture and connection.
57. He has reconnected with his mother, though there were different reports of when this was. It is, however, a good and supportive relationship with her and her new partner. He communicates with her by phone and email because she lives in Newcastle with her new partner. He has had very limited direct contact with his father.
58. Mr Coleman attended school, but was bullied in Years 6 to 9. He also presented with significant behavioural issues at school with interrupted attendance. [Redacted for legal reasons].
59. He has had an ‘inconsistent’ employment history, but has had some employment largely because of his incarceration. He was employed in what appears to be unskilled labour prior to his last incarceration, but for only three months. He has no clear employment pathways when released from custody.
60. Mr Coleman has no current health concerns, though it appears that in 2016 he was diagnosed with a Recurrent Depressive Disorder. The Psychological Report of Ms Edwige, however, fills in that apparently satisfactory picture with a little more nuance. He suffered sexual abuse at a residential school and [redacted]. Ms Edwige's opinion was that, “[his] behavioural issues and drug abuse from an early age could be best described as Post-Traumatic Stress Disorder (PTSD), symptoms as a result of his complex developmental trauma”. She considered that he met the standard criteria for this disorder.
61. He has had a long and depressing alcohol and other drug history. He first drank alcohol when he was 12 or 13, but did not drink regularly. He said that prior to his most recent period of custody he drank two cans of pre-mixed drinks in three months, though this was not consistent with a report to Canberra Health Services on 11 June 2019, which stated that he reported drinking 10 to 14 standard drinks a day.
62. He started smoking cannabis when he was 13 years old and used regularly by the time he was 15, largely from the poor home environment. He has continued to use it until six months ago and has had no continuing desire to use it.
63. Mr Coleman commenced using other drugs soon after. He first used heroin at age 17, when he was depressed, and used regularly into his twenties. He then tried other drugs, though continuing to use heroin to help him “stop thinking” and “to manage his resentment towards his mother”. He has been prescribed buprenorphine which helped him achieve abstinence.
64. He tried cocaine when he was about 22 years old and binged on it for a few weeks, but then gave it up.
65. When he was 24, he started using methylamphetamine, when he was introduced to it by his then partner. He mostly injected it, using about three or four times a week while in the community. He last used by smoking.
66. This was a young age to be introduced to drug use, well before he could be expected to make an informed decision about the use and where his life experience would have encouraged refuge in some kind of amelioration for the trauma he was suffering. It is, as noted in R v Henry at 397-8; [273], relevant to his subjective culpability and justifies some special consideration.
67. He has had some alcohol and other drug treatment. He attended the William Booth House in Sydney, which offers residential treatment based on a therapeutic community model. He attended on three occasions in his late teens and early twenties, once on a court referral and twice of his own accord. He has attended other treatment, once when he was 28 years old and more recently sometime between 2009 and 2011, but left the latter before completing the program after it closed. He also attended Wayback Ltd, Sydney, in 2011.
68. He has seen a psychologist at Winnunga Nimmityjah Aboriginal Health Service when in the community. He is currently prescribed 85 milligrams of methadone daily, though he has expressed an interest to transfer to Buvidal, which is also a requirement for an admission to a residential drug rehabilitation program. He has now transitioned his pharmacotherapy as required.
69. Mr Coleman has a long and depressing criminal history. [Redacted for legal reasons].
70. In the New South Wales Adult Courts, he has accumulated 69 offences, mostly dishonesty offences, including many offences of breaking, entering and stealing in its various forms. He was incarcerated a number of times. He also appeared in the Paramatta Drug Court in 2012, though he is recorded as having breached the Order made by that Court.
71. When he came to the ACT, his activities continued. Since 2009, he has been convicted of 33 offences, including 10 burglary offences and 11 theft offences. He was most recently imprisoned for burglary (10 offences), and theft (10 offences) and 10 other offences to a term of 5 years and 10 months imprisonment, as noted above (at [21]).
72. It is not irrelevant to note that, in this depressing long list of offences, there are few offences of violence, few offences of damaging property and no prior offences of robbery or aggravated robbery in any of its forms. There are, especially in comparison to other offences of dishonesty, somewhat more but still relatively few offences of taking or driving motor vehicles without the owner's consent. There are, of course, many earlier offences of burglary and theft.
73. Mr Coleman's background is clearly disadvantaged and it has, on the expert evidence, left significant consequences on him and was, no doubt, relevant to his criminality. These raised the principles articulated by the High Court in the seminal decision of Bugmy v The Queen [2013] HCA 37; 249 CLR 571. These principles accept that such childhood deprivation can explain subsequent behaviour and may substantially reduce Mr Coleman's moral culpability. It is further to be noted that such effects do not diminish over time and even where the offender has a criminal record. These shall be very much taken into account. Relevantly, one of the ways that this may be addressed is by making most of the sentences wholly concurrent: R v Crawford (No 1) [2020] ACTSC 245 at [87].
Sentencing practice
74. Sentencing practice, a required factor to be considered under s 33(1)(z)(a) of the Sentencing Act, has been partly considered earlier. The other part of its consideration is in the selection of what has been described as the “collective wisdom of judges”: R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 at 280; [179]. Sometimes, this is addressed by considering sentencing statistics. While permissible, care must be taken to acknowledge the significant limitations of such information. This matter has been addressed in R v Mathews [2020] ACTSC 364 at [45].
75. The ACT Sentencing Database shows that, unsurprisingly, sentences for aggravated robbery vary widely from a Good Behaviour Order, fully and partially suspended sentences of imprisonment, Intensive Correction Orders and sentences of full-time imprisonment. For the latter, the length of sentences range from 9 months to 12 years, though 80% of sentencing terms were in the range of 2 years to 6 years.
76. The other way to reflect on sentencing practice is to have regard to what are called comparable cases; that is, other recent decisions of the courts which can disclose the approach of courts more broadly. As was said in Director of Public Prosecutions (Vic) v Dalgliesh (Pseudonym) [2017] HCA 41; 262 CLR 428 at 454; [83]:
Examination of sentences imposed in comparable cases may inform the task of sentencing but such examination goes beyond its rationale when it is used to fix boundaries that, as a matter of practical reality, bind the court.
77. Ms Morrisroe referred the Court to the decision of R v Crawford (No 1), though, of course, one decision is a small sample. That decision did, however, consider sentencing practice in coming to the sentence reached. Ms Morrisroe submitted that it was a more serious version of the offence. That is accepted.
78. The Crown, in its comprehensive and very helpful submissions, referred to five recent decisions, noting, fairly, that they were not analogous factually, though they included offences of the kind to which Mr Coleman has pleaded guilty. I have read the decisions. It is not necessary to consider them in detail. I assessed the various offences of aggravated robbery somewhat more serious than the current offence. The burglaries varied widely; aggravated burglaries are, of course, more serious and were included in some cases. I have, however, taken note of the decisions and included them in the consideration of the sentence.
79. As to the burglary, it is well known, as stated in Fusimalohi v The Queen [2012] ACTCA 49 at [15], that, “there is no single correct sentence for offences of burglary and aggravated burglary”. That, of course, applies to all offences, as the High Court has made clear on a number of occasions.
80. Nevertheless, statistics again show a wide range of sentencing terms of imprisonment from 6 months to 6 years for offences of burglary, more than half in the range of 7 to 18 months. Of course, this range includes all versions of the offence: on residential and commercial premises, where damage is done on entry and where damage or vandalism is done while the offender is on the premises or not.
81. So far as the offence of dishonestly driving a motor vehicle without the owner's consent is concerned, many of the current sentences are visited with sentences of imprisonment in the range of 6 to 12 months in this Court.
Pre-Sentence Custody
82. Ordinarily and properly, periods spent in custody prior to the sentence, because bail has been refused, is taken into account when sentences of imprisonment are imposed and, of course, that is just. Usually and appropriately, the mechanism permitted under s 63(2) of the Sentencing Act of backdating the start of the term of imprisonment is that used almost universally by this Court.
83. In this case, Mr Coleman has been in custody since he was arrested on 10 June 2019. At the time, however, he was subject to another sentence of imprisonment, that referred to above (at [22]). At the time, he was on parole. The Parole Order was cancelled from the date of his first appearance in Court on these charges, 11 June 2019. Thus, from that date, he was serving the sentence of imprisonment that had earlier been imposed. It is clearly inappropriate for him to be allowed to offset this period against a further sentence: R v Po’oi [2021] ACTSC 151 at [44].
84. He was then granted parole again on 15 July 2020, as is noted above (at [24]). At this time, he was still on remand, his bail application having been refused. As noted above (at [24]), however, he applied again for bail, but the application was refused by Burns J. Thus, he had been granted parole but was still detained, having been refused bail. Thus, it was submitted that the only basis on which he was now detained was because bail was denied for the current charges. It was submitted by Ms Morrisroe that this should be accounted for in the sentence to be imposed.
85. The Crown, however, pointed out that while a Parole Order had been made, it did not actually take effect until Mr Coleman was released from custody: s 131 of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act). Thus, it was submitted Mr Coleman was still serving the original sentence. It is not clear why, in the circumstances, Mr Coleman's Parole Order was not cancelled to make this clear.
86. On the other hand, had bail been granted, the Parole Order would immediately have been effective, as he could not be released from custody, despite the grant of bail, without the Parole Order taking effect. Thus, in a real sense, his detention was not referable to those offences as parole had been granted, a term of which was the order for his release, and thus his imprisonment no longer authorised his detention. That was the approach taken in R v Forrest (No 2) at [168]-[170]. While the precise circumstances of that decision may have been correct, it is noted that s 131 of the Sentence Administration Act was raised in that decision.
87. In this case, however, there are some other relevant facts. Thus, under s 149 of the Sentence Administration Act, a Parole Order is automatically cancelled upon the conviction of the offender for another ACT offence. This, however, would not apply here as Mr Coleman’s sentence of imprisonment has now been completed and the Parole Order would have been at an end. Section 151 of the Sentence Administration Act, however, requires that where an offender has after that time been convicted of an offence committed while the offender was on parole, the Sentence Administration Board must decide when the offence was committed and the Parole Order is then taken to have been cancelled from that date.
88. Given that Mr Coleman has now pleaded guilty to each of the current offences which were committed while he was on parole and, as those pleas will inevitably lead, in this case, to convictions, that position will pertain and he will be taken effectively never to have been granted parole, not by a discretionary decision of the Board but by operation of law. Given that a sentence cannot be imposed until after conviction, it seems that, in fact, Mr Coleman will effectively be serving that period of imprisonment for the original sentence from 10 June 2019 until the end of his sentence, which is understood to be 29 December 2020.
89. That will not actually occur until the Board sets the date of the commission of the offences which will, in fact, actually be at least eight days prior to the grant of parole. Given the automatic nature of these matters, it does seem that it would not be appropriate to take these periods of Pre-Sentence Custody into effect. Thus, the period of Pre-Sentence Custody referable to these offences will be from 30 December 2020 to today - 160 days. Nevertheless, it is proper in the sentencing to take totality into account, which includes the time spent in custody, on whatever basis.
Consideration
90. In order to impose a sentence that is just and appropriate, a most difficult task at the best of times, it is helpful to have a clear idea of the objects to be achieved and their purposes. The objects are set out in s 6 of the Sentencing Act and the purposes or functions of sentencing, set out in s 7, seek to achieve those objects. They have been considered and taken into account.
91. Thus, punishment is, given the seriousness of the offences, important and will take a part in the sentence, subject to an assessment of the culpability of Mr Coleman moderated by the principles of Bugmy v The Queen.
92. The serious effect that the most serious offence has on the community requires also that other are deterred from committing such offences and thus prevent crime. That will, too, protect the community.
93. Mr Coleman's express desire for rehabilitation will justify a focus on rehabilitation, especially as he is showing some commitment through his initial reluctant transition in his medication regime and keenness for a longer term in a residential drug rehabilitation program. It is appropriate to give due weight to rehabilitation.
94. The sentence must denounce the crimes and will help reinforce norms of behaviour in the community, deter others and protect the community. Nevertheless, the sentence must also recognise the harm done to the victims, especially where there is an identifiable one. There was no Victim Impact Statement provided and that deprives the Court of a real insight into the effect of the crimes on the victims, especially any long-term effects or particular or special effects. Despite that, courts in general terms understand the harmful effects of crimes and can ensure that these are recognised in the sentence.
95. That Mr Coleman has no significant offences of violence and no robbery offences on his record, specific deterrence is not so important in the sentence. This does not apply so much to the sentence to be imposed for the dishonesty offences. Nevertheless, his long history suggests that this is not going to be achieved merely by increasing the severity of the sentences imposed, though there can be no suggestion of a more lenient sentence because of prior offending.
96. Mr Coleman pleaded guilty before trial. He did not plead at a particularly early stage, certainly not in the Magistrates Court. On the other hand, the pleas came after Criminal Case Conferencing. The outcome is not significantly modified from that which would have pertained on the offences subject to his committal, though the number of counts and the statement of facts are different. The precise dynamics of the mediation process of the Criminal Case Conferencing are not in evidence in these proceedings. The Court of Appeal in Blundell v The Queen [2019] ACTCA 34 at [12] has given some guidance on how to evaluate this outcome, which is accepted.
97. A matter of aggravation is that Mr Coleman committed these offences while at conditional liberty. That is to say, he was on parole at the time. This is a form of trust extended to him to be in the community, serving the just and adequate sentence of imprisonment to which he had been sentenced for a large number of serious offences. To commit offences in that circumstance is to abuse that trust. Of course, while a serious matter of aggravation and weight against Mr Coleman, it is important not to punish him twice as he has effectively been returned to custody following cancellation of the Parole Order. This is relevant to the sentence to be imposed.
98. It is noted, too, that Mr Coleman has expressed remorse for his offending, especially the aggravated robbery where he terrified the victim.
99. The nature and circumstances of the offences as described above in the setting out of the facts and description of the offences, the personal circumstances and antecedents of Mr Coleman as also described, the harm and the losses the victims suffered, that Mr Coleman has accepted responsibility for the offences and has shown, especially in his commitment to rehabilitation, some understanding of them and the other matters that have been set out here have all been taken into account. In the circumstances, no other sentence than a sentence of imprisonment is appropriate: s 10 of the Sentencing Act.
There are, of course, multiple offences. A proper sentence must be imposed on each and the length of each sentence has been carefully considered to ensure that it is just and adequate and also to ensure that Mr Coleman is not punished twice. The Court has also to consider whether the sentences should be partly or wholly concurrent because, for example, they are part of the same course of conduct or contain common elements. That applies especially in the relationship between the minor theft and burglary offences.
The length of the total term of the sentence arrived at has then been considered to ensure that the principle of totality is respected, that the total sentence adequately reflects the criminality of the offences committed, but no more than that, and that the total sentence is not excessive but will leave open the realistic prospect of reform and maintain the hope required by Mr Coleman to take an effective part in the community and realise his aims when he is released.
This may result in what is seen by some as a lenient sentence, in that some sentences are made concurrent, but while the total criminality of Mr Coleman is an important factor, it is importantly moderated by his childhood disadvantage, his growing awareness of, and commitment to, the need for rehabilitation, and the circumstances of his early introduction to drug use.
Thus, it requires a sentence proportionate to his culpability for the crimes and the effect on the community, but also Mr Coleman's subjective circumstances and value of his reform to both the community and to himself. In imposing the sentences, the time he has already spent in custody prior to sentence will be taken into account under s 63 of the Sentencing Act, by backdating the sentence for that purpose.
Sentence
[His Honour then spoke directly to the offender]
Mr Coleman, please stand.
The orders of the Court are as follows:
(1) That the charge for the offence of drive whilst unlicensed be amended by omitting 'repeat' and substituting ‘first’.
(2) You are convicted of the offence of aggravated burglary and sentenced to 29 months imprisonment, to commence on 30 December 2020 and expire on 29 May 2023. Had you not pleaded guilty, you would have been sentenced to 37 months imprisonment.
(3) You are convicted of dishonestly driving a motor vehicle without the owner’s consent and sentenced to 13 months imprisonment, to commence on 30 October 2022 and expiring on 29 November 2023. That is to be accumulated as to six months on the offence of aggravated robbery. Had you not pleaded guilty, you would have been sentenced to 16 months imprisonment.
(4) You are convicted of the burglary at Palmerston and sentenced to 12 months imprisonment, to commence on 30 May 2023 and expire on 29 May 2024. That is to be cumulative as to six months on the count of dishonestly driving a motor vehicle without consent. Had you not pleaded guilty, you would have been sentenced to 15 months imprisonment.
(5) You are convicted of the burglary at McKellar and sentenced to 12 months imprisonment, to commence on 30 November 2023 and expire on 29 November 2024. That is to be cumulative as to six months on the sentence for the burglary at Palmerston. Had you not pleaded guilty, you would have been sentenced to 15 months imprisonment.
(6) You are convicted of minor theft from Isabella Plains and sentenced to two months imprisonment, to commence on 14 October 2024 and expire on 13 December 2024. That is to be cumulative as to 14 days on the sentence for burglary at McKellar. Had you not pleaded guilty, you would have been sentenced to three months imprisonment.
(7) You are convicted of minor theft at Palmerston and sentenced to one month imprisonment, to commence on 14 November 2024 and expire on 13 December 2024. That is to be wholly concurrent with the offence of minor theft from Isabella Plains.
(8) You are convicted of the second theft from Isabella Plains and sentenced to two months imprisonment, to commence on 28 October 2024 and expire on 27 December 2024.
(9) You are convicted you of driving with a prescribed drug in your oral fluid and required to sign an undertaking to comply with the offender's Good Behaviour Obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of six months. The period of disqualification from holding or obtaining a driver licence is reduced to 12 months.
(10) You are convicted of driving whilst unlicensed and required to sign an undertaking to comply with the offender's Good Behaviour Obligations under s 85 of the Crimes (Sentencing) Act for a period of 18 months from today.
106. Mr Coleman, you may be seated.
Drug and Alcohol Treatment Order application
107. That is an overall sentence of 47 months and 4 weeks imprisonment. Mr Coleman has asked that a Treatment Order be made and, having completed the sentencing, that will now be addressed.
108. First, the eligibility requirements of s 12A of the Sentencing Act will be considered. The offence of aggravated robbery is an eligible offence. The sentence of imprisonment for the offence is greater than 12 months, the minimum period for eligibility, and the total sentence is less than 4 years imprisonment, less than the maximum period.
109. Mr Coleman is not subject to any other sentencing order, even on the retrospective cancellation of the Parole Order made from 11 June 2020 that will subsequently occur.
110. In addition, it is satisfactorily shown from the Suitability Assessments that he has a severe substance use disorder, which means that he is dependent on illicit drugs, specifically methylamphetamine. It is also satisfactorily shown that the primary contributing factor to his offending was his problematic drug use.
111. An issue has arisen about Mr Coleman’s likelihood of living in the ACT for the next two years. He has shown no inclination to move back to New South Wales where, indeed, he may be subject to an arrest warrant. Were he to be admitted to Canberra Recovery Services, which has been suggested as a suitable residential drug rehabilitation agency for him, he will reside there for at least six months. He has an offer to live at the home of the father of his ex-partner. While that is regarded as unsuitable for a person subject to a Treatment Order, it is nevertheless a place to live in the ACT and so he meets the criterion of being required to live in the ACT for the relevant period.
112. It is also clear that the Treatment Order regime has been explained to him and that he has had an opportunity to ask any questions he has and to have them answered. Indeed, he has had some detailed discussion about issues that concerned him about the length of the residential program and pharmacotherapy. It is further shown to the requisite degree that, inevitably with some reluctance, he has now given informed consent to the making of a Treatment Order.
113. Accordingly, he is eligible to be subject to a Treatment Order.
114. I have read with care the Suitability Assessments, including the Cultural Assessment referred to above (at [7]). They are very useful and informative reports that have been thoughtfully and carefully prepared. They provide very great assistance in the task of deciding whether it is appropriate to make a Treatment Order. I note that the Suitability Assessment of the Alcohol and Drug Service of Canberra Health Services and the Cultural Assessment recommend that he is suitable.
115. The Suitability Assessment of ACT Corrective Services recommends him as unsuitable. The grounds are his substantial non-compliance with previous court orders and the lack of suitable accommodation, at least following a residential drug rehabilitation program.
116. As to the first issue, it is correct that he has behaved unsatisfactorily while on court orders. He breached many orders [redacted], but given his circumstances, he probably never learnt boundaries. He breached the New South Wales Drug Court Order and he breached his recent parole. That is enough to cause the Court to think carefully about the matter.
117. His age, when he is at a stage that causes persons living in his lifestyle to reassess their unsatisfactory position, is a change in circumstance from the situation surrounding previous breaches. That, of course, is a big generalisation and, of course, such an assessment may be wrong, especially as there are no particular factors, such as the need to reconnect with family, that might provide some additional and specific motivation to him.
118. On the other hand, he has been assessed as having some insight and being passionate about his prospects of rehabilitation and is taking some, albeit limited and tentative, steps towards that goal, some of which are not exactly to his liking. There can be no guarantees, but it is satisfactorily shown that he is likely to comply with this opportunity, which may well be nearly his last opportunity for such rehabilitation.
119. As to the accommodation issue, it is difficult to evaluate the basis for the assessment that the post-residential rehabilitation place is unsuitable as this is not entirely clear. The offer of a placement is subject to his completion of the residential drug rehabilitation program. If he does not complete it, the Treatment Order is, in any event, likely to be cancelled. Once he has completed the program, he will be assisted by Canberra Recovery Services to obtain appropriate accommodation if not otherwise available, but there is no reason to believe it will not be otherwise available if he has completed the program. This, all things considered, is a less likely scenario and it is not accepted that it should prohibit Mr Coleman from having a Treatment Order made.
120. The Court is satisfied that there are no indicators of unsuitability set out in Table 46K of the Sentencing Act. Accordingly, Mr Coleman is suitable for a Treatment Order and it is appropriate that one should be made.
121. Finally, it is noted that, although the sentence of imprisonment commences on 30 December 2020, which period, from that date until today, has in part been served in custody. The balance sentence of imprisonment must now be suspended, that is in reality, partially suspended. This does not prevent Mr Coleman from being subject to a Treatment Order for the reasons set out in R v Crawford (No 1) at [91]-[111].
Drug and Alcohol Treatment Order
[His Honour then spoke directly to the offender]
Mr Coleman, please stand again.
The Court further orders the following:
(11) A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for you for two years from today, in respect of the primary offence of aggravated burglary, for which you have been convicted and sentenced.
(12) That Order be extended to each of the two offences of burglary, the offence of dishonestly driving a motor vehicle without the owner's consent and the two offences of minor theft, for which you have been convicted and sentenced, which are associated offences of the primary offence.
(13) It is noted that convictions and sentences for the primary and associated offences have been recorded and are hereby incorporated into the Drug and Alcohol Treatment Order in the Custodial Part of the Order.
(14) In the Custodial Part of the Drug and Alcohol Treatment Order, the total sentence imposed for the primary and associated offences has been suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) to 27 December 2024.
(15) You are required to sign an undertaking to comply with the offender's Good Behaviour Obligations under s 85 of the Crimes (Sentencing) Act2005 (ACT) from the end of the Drug and Alcohol Treatment Order, 7 June 2023, until the end of the total sentence, 27 December 2024, with a probation condition that you accept supervision by the Commissioner of ACT Corrective Services, or his delegate, and obey all reasonable directions of the persons supervising you, including as to urinalysis, counselling and treatment.
(16) For the Treatment and Supervision Part of the Drug and Alcohol Treatment Order:
a. The core conditions of the Order set out in s 81 of the Crimes (Sentencing) Act 2005 (ACT) be imposed.
b. You are directed to attend from this Court at Canberra Recovery Services, Fyshwick and admit yourself to the residential drug rehabilitation program there by 1.00 pm today, 7 June 2021.
c. You are directed to complete the program at Canberra Recovery Services and not leave the program until you have completed it and obey all rules, of the program and facility and directions of the person in charge of the program.
d. Should you leave or be discharged from the facility before completing the program, you will report to ACT Corrective Services by 4.00 pm on the next business day, with a view to having this Drug and Alcohol Treatment Order reviewed.
e. You are directed to undertake any program, treatment, case management or urinalysis or other program as may be required by any member of the Treatment and Supervision Team.
f. You are directed to comply with any directions of the Court from time to time about attendance in Court, in person or by electronic means.
(17) You are directed to appear by electronic means in Court on 18 June 2021 at 12.30pm.
(18) You are directed to attend the Court Registry before leaving the Court precincts to sign a sealed copy of this Order.
124. Mr Coleman, I have made a Treatment Order but I have also indicated that these are very serious offences. Particularly the aggravated robbery, but also continued burglaries and thefts are not acceptable in our community. Nearly four years would be the period that you would otherwise spend in prison for this spree of offending.
125. However, I am giving you an opportunity, which you have asked for and to which I hope you are committed, to address what has caused you to live an unstable and unhappy life, I suspect, although it becomes happy when you take drugs, no doubt, and committing crime.
126. Your rehabilitation will be hard and long. I have set two years as the time for that, but you will have support from this Court and many professionals who will assist you if you are committed to it.
127. What is really important is that you do commit to it. One of the ways in which you can show you are committed is to be truly honest to yourself and to others. You will need to confront a lot of your history and a lot of what is going on with you and be honest about it, but you will also be tempted from time to time and the more you resist that temptation, the stronger you will get and the better you will find your life will be. You will be able to participate like the rest of us in the community and develop your potential and what you really want to do with your life.
128. You will see a lot of me in the coming months. You will come back to Court, probably by audio visual link, from Canberra Recovery Services and check in. The point of that is really threefold. First of all, just to see how things are going and see that it is all going all right. Secondly, to give you an opportunity to raise matters that are of concern to you. If you are having problems there, raise them. I am a Judge. I am not all powerful, but it is amazing what, with the Treatment Team assisting me, I can do to improve things or to resolve things. Some things you have just got to suck up and you have just got to accept, but others, if you address them, confront them, they can often be resolved or you can overcome them.
129. Finally, or thirdly, if there are some problems that you have committed some breaches of regulations and so on, then I might have to sanction you. That sanction could go all the way, depending on what it is like, to cancelling the Order and sending you back to prison. That is, in a sense, the big stick hanging over you. I do not want it to be like that because I want this to be positive for you, but it is there and there is no point in pretending otherwise.
130. This is a massive opportunity for you. It is what you have wanted, so you say, but it will be difficult. If you accept the challenge and you persevere with it, you will find that there are many other people, and some in Canberra Recovery Services, who will mentor you, give you an idea of how things are going and how you can manage. You will, as others have, come out at the other end, but it is really important to commit to it.
131. What is also very important is not to simply run away. If things get tough, do not just leave. You will be seeing me once a week or once a fortnight, and raise it with me. If you cannot hack it anymore, then I might have to put you in goal for a period, but we might be able to get some alternative. I do not want that, because it is difficult. We are short of beds, but it might be possible if it really becomes difficult. If there is some other difficulty, it may be that we can resolve it. If you run away, the likelihood of me having to cancel the Order is very high. Come back to the Court, see what we can do and then we can work on it together.
132. The Court is here to assist you. That is not the way in which you look at most Courts, but that is what this Court is to do; to help you get through, but to hold you accountable to the requirements of the program and your rehabilitation and we will do that. As I say, you will have some support in the team.
133. I hope it works out. It has been tough for a number of people and they have had to go back to goal. It is in your best interests - I am saying that because I think you recognise that - for you to work on this and to succeed.
134. So, all I can say is I hope it works. Go and sign your Order, get over to Canberra Recovery Services, and I believe that someone will assist you to do that. Get in there, get going and I will see you in a fortnight.
135. I wish you good luck.
| I certify that the preceding one hundred and thirty-five [135] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge Associate: Date: 19 July 2022 |
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