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R v Collier (No 2)

R v Collier (No 2)

Case [2021] ACTSC 177 3 August 2021

Breach of Good Behaviour Order

Re-sentencing

Imprisonment

Sentencing

Correctional Supervision

Criminal Law

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Collier (No 2)
Citation:	[2021] ACTSC 177
Hearing Dates:	23 July 2021 and 3 August 2021
DecisionDate:	3 August 2021
Before:	Loukas-Karlsson J
Decision:	The offender’s good behaviour order is cancelled. The offender is re-sentenced to 10 months imprisonment.
Catchwords: .	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of suspended sentence – breach of good behaviour order – breach by further offending – breach by failure to comply with supervision – re-sentence
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT) ss 86, 107, 110 Crimes (Sentencing) Act 2005 (ACT) ss 12, 65 Criminal Code 2002 (ACT) s 312
Cases Cited:	Director of Public Prosecutions (NSW) v Cooke [2007] NSWCCA 2; 168 A Crim R 379 Guy v Anderson [2013] ACTSC 5 R v BC [2020] ACTSC 308 R v Beniamini (No 2) [2017] ACTSC 32 R v Bennett [2017] ACTSC 104 R v Collier [2019] ACTSC 358 R v Curtis (No 2) [2016] ACTSC 34 R v Goolagong (No 2) [2021] ACTSC 131 R v Marston (1993) 60 SASR 320 Taylor v Bowden [2009] ACTSC 13 The Queen v PM (No 2) [2015] ACTSC 358
Texts Cited:	Bugmy Bar Book, Early Exposure to Alcohol and Other Drug Abuse (November 2019)
Parties:	The Queen (Crown) Norman Collier (Offender)
Representation:	Counsel M Howe (Crown) S McLaughlin (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 199 of 2019

LOUKAS-KARLSSON J:

Introduction

Norman Collier (the offender) was sentenced by me on 19 December 2019 for an offence of aggravated burglary, contrary to 312 of the Criminal Code 2002 (ACT): R v Collier [2019] ACTSC 358 (R v Collier). The offender was sentenced to a term of 18 months imprisonment, suspended after six months, upon entry into a good behaviour order for a period of 12 months. The good behaviour order commenced on 1 January 2020 and expired on 31 December 2020.

In addition to the core conditions of the good behaviour order that are outlined in s 86 of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act), I imposed the following additional condition:

(a) The offender be subject to a probation condition in that he be subject to the supervision of ACT Corrective Services for that period of 12 months or such lesser period as may be deemed appropriate by his supervising officer.

On 30 April 2021, Magistrate Theakston found the offender guilty of an offence of assault occasioning actual bodily harm (CC2020/9943) and an offence of affray (CC2021/752). The offender was originally due to be sentenced on 28 July 2021 for these offences before Magistrate Theakston.

On that occasion, pursuant to s 107(2) Sentence Administration Act, Magistrate Theakston committed the offender to the Supreme Court so that the breach of the offender’s good behaviour obligations could be dealt with by the Supreme Court.

As the offender’s good behaviour…

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 Collier (No 2)

Details

AGLC: R v Collier (No 2) [2021] ACTSC 177
Case: [2021] ACTSC 177
Decision Date

CaseChat Overview and Summary

The offender, Norman Collier, was found guilty of breaching his good behaviour order and was brought before the Supreme Court of the Australian Capital Territory. The offender had been sentenced to a suspended sentence of 18 months imprisonment, attached to a good behaviour order for 12 months. The offender breached the good behaviour order by failing to comply with his supervision conditions, and by committing further offences of assault occasioning actual bodily harm, affray, and fail to appear. The court was required to consider the relevant factors in deciding whether to impose the balance of the suspended sentence or to re-sentence the offender. The court considered the proportion of the good behaviour order served, any rehabilitation attained prior to the breaching conduct, the nature of the offence which breached the order, the relative seriousness of the offence causing the breach, the actual facts of the matter for which the offender was first sentenced, 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, whether the offender has received any warnings with respect to breaches, the level of understanding of the offender of his obligations under the terms of the order and the consequences of a breach, and the nature of judicial and community resources previously devoted to the offender.

The offender had made some initial attempts to communicate with ACT Corrective Services, but his compliance towards supervision was poor. The offender had been subject to the initiation of breach action in both the ACT and NSW as a result. The offender had been involved in several physical altercations with other detainees and had resulted in injuries to Corrections Officers. The offender had also relapsed back into illicit substance use.

The court re-sentenced the offender to 10 months imprisonment, recognising the unfortunate circumstances that had led to and precipitated the breaches. The court noted that while the relative seriousness of the offences that caused the breach would be a matter for the Magistrates Court to proceed with the sentencing exercise concerning the further offences, it would nevertheless impose a significant portion of the original 12 month period. The court cancelled the good behaviour order dated 19 December 2019 and re-sentenced the offender to 10 months imprisonment, commencing on 20 August 2020 and concluding on 19 June 2021.

Orders