R v Collier (No 2)
[2021] ACTSC 177
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 |
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 order was made pursuant to s 12(3) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) attached to a suspended sentence, the offender’s breach is to be dealt with having regard to s 110 of the Sentence Administration Act.
After the matter first came before me on 23 July 2021, it emerged that the offender still had two further offences of fail to appear (CC2020/7064; CC2020/9944) outstanding in the Magistrates Court. The offender then entered pleas of guilty to the fail to appear offences on 28 July 2021 before Magistrate Theakston. As a result, the offender is due to be sentenced for all of the fresh offences in the Magistrates Court before Magistrate Theakston on 18 August 2021.
Legislative Regime
Section 107 of the Sentence Administration Act relevantly provides:
Offence committed while under good behaviour order
(1) If the Supreme Court finds an offender guilty of an offence committed during the term of the offender’s good behaviour order, the court may deal with the offender under this part for breach of the offender’s good behaviour obligations.
(2) If the Magistrates Court finds an offender guilty of an offence committed during the term of the offender’s good behaviour order, and the order was made or changed by the Supreme Court, the Magistrates Court must, in addition to dealing with the offender for the offence, commit the offender to the Supreme Court to be dealt with under this part for breach of the offender’s good behaviour obligations.
(3) For subsection (2), a magistrate may remand the offender in custody until the offender can be brought before the Supreme Court.
Section 110 of the Sentence Administration Act states the following:
Cancellation of good behaviour order with suspended sentence order
(1) This section applies if—
(a) an offender’s good behaviour order was made under the Crimes (Sentencing) Act 2005, section 12 (3) (Suspended sentences) on the offender’s conviction for an offence; and
(b) a court is satisfied the offender has breached any of the offender’s good behaviour obligations.
(2) The court must cancel the good behaviour order and either—
(a) impose the suspended sentence imposed for the offence; or
(b) re-sentence the offender for the offence.
Statutory Construction
Section 107(2) of the Sentence Administration Act does not mandate whether the Magistrates Court is to proceed to sentence the offender prior to or after the breach of the good behaviour is dealt with by the Supreme Court. The section also is silent on the definition of what the Magistrates Court must do when ‘dealing with the offender’.
Counsel for the prosecution noted that practice in this area sometimes revealed that the Supreme Court would deal with the breach proceeding and then the substantive fresh offence or offences would be dealt with in the Magistrates Court thereafter (T14.16-20). It was noted that the section is silent on the sequencing of matters of this kind. Counsel stated that it was his understanding that if the original offence that the good behaviour order was imposed for was more serious than the fresh breaching offence, the more serious offence would be dealt with first in time (T18.4-7). It was noted that the reference to ‘dealing with the offender’ may simply clarify that the Magistrates Court retains jurisdiction of the fresh offence (T17.32-38). Counsel did not ultimately urge an interpretation that would result in the Magistrates Court sentencing the offender for the fresh offences first.
Counsel for the offender noted that the section makes the reference to the Magistrates Court ‘dealing with the offender’ after it refers to the Magistrates Court making the find of guilty and submitted that may mean the Magistrates Court must take a further step beyond the finding of guilty (T22.1-4). Counsel echoed the point that the section is ultimately silent on the order of the proceedings.
Facts
The facts pertaining to the offender’s breaches are contained within the Crown Tender Bundle (Exhibit 1) and include an affidavit of Corrective Services Officer Ms Mila Francis (the Francis affidavit) and Police Statement of Facts.
Corrective Services Breach
The Francis affidavit sets out the offender’s alleged breaches of his supervision condition. It notes that the offender failed to attend the Corrections Office as directed when he was initially released from the Alexander Maconochie Centre (AMC). The Francis affidavit further details instances of the offender failing to attend appointments after being directed to do so, as well as an instance of the offender attending a supervision appointment and stating that he could only attend the appointment for 10 minutes.
The Francis affidavit notes that on 23 January 2020, the offender contacted ACT Corrective Services by telephone to advise that he no longer resides at his nominated address as it had been damaged by fire and he temporarily needed to relocate to a hotel. It was noted that the offender attended his supervision appointment on that date. Thereafter, the offender continually missed appointments, requested to reschedule appointments, and attended appointments late if at all.
The Francis affidavit states that since the commencement of the offender’s good behaviour order, his level of engagement with ACT Corrective Services has been poor.
Fail to appear (CC2020/7064)
On 4 June 2020, the offender appeared before the Registrar in the Supreme Court and in accordance with his bail conditions, undertook to appear on 11 June 2020. On 11 June 2020, the offender failed to appear and a first instance warrant was subsequently issued for his arrest.
On 12 June 2020, the offender entered the Tuggeranong Police station to enquire as to the whereabouts of an associate. The offender was subsequently arrested.
Assault occasioning actual bodily harm (CC2020/9943); Affray (CC2021/752); Fail to appear (CC2020/9944)
On 23 July 2020, the offender appeared in the Magistrates Court in relation to the first fail to appear (CC2020/7064). On that occasion, the offender gave an undertaking to appear before the Magistrates Court on 6 August 2020. The offender failed to appear on 6 August 2020.
At about 6:40PM on 20 August 2020, the offender and KF were travelling on Canberra Avenue in Fyshwick in the complainant’s car, a blue Renault Megane (the blue Renault). The offender and KF have been in an “on again, off again” relationship for a number of years. During the car ride, the offender and KF began to have an argument. The offender struck KF with the back of his hand, hitting her to the side of her head. KF proceeded to pull the vehicle over to the left side of the road. The offender then struck KF in the face with a closed fist. The offender continued to assault KF by grabbing her head and pushing it into the gear stick located in the centre console of the vehicle. KF raised her hands to protect her face in an attempt to defend herself.
At approximately 7:00PM, Mr Joseph Sunter was driving his car a blue Toyota Corolla (the blue Corolla) and was traveling eastbound on Canberra Avenue when he observed the blue Renault parked in the left hand lane near HMAS Harman. Mr Sunter pulled over on the right side of Canberra Avenue behind a white Land Rover (the white Land Rover) being driven by Mr Robert Ristevski. Mr Sunter approached the blue Renault with concerns for the welfare of the driver and observed KF in the driver’s seat and the offender in the front passenger seat.
Mr Sunter observed KF and the offender having a heated verbal argument and appeared to be in a physical struggle. Mr Sunter heard KF call out to him stating, ‘call the police, call the police’. Mr Sunter ran back to his car and contacted police.
KF got out of the blue Renault and crossed Canberra Avenue to where the white Land Rover and the blue Corolla had been parked. The offender got out of the blue Renault and chased after KF with a knife in his right hand.
The offender then grabbed hold of KF with his left hand and pushed her to the ground causing her to land on her back. The offender stomped on KF’s head multiple times and then kicked her a number of times in the ribs. KF had raised her arms above her head to attempt to protect herself.
Mr Ristevski and Mr Sunter approached the offender stating they had called the police. The offender raised the knife in his right hand and ran towards Mr Ristevski, while yelling at him not to intervene and to leave the area. Mr Ristevski got into the car as he feared for his safety.
Mr Sunter then observed the offender raise the knife above his head and start to run at him. The offender got within an arm’s reach of Mr Sunter and yelled ‘get away, it’s not his business and you need to leave’. Mr Sunter got back into his car and observed the offender outside his car window swearing at him multiple times. The offender made a number of verbal threats causing Mr Sunter to fear for his safety. The offender proceeded to pace around the outside of the blue Corolla.
KF got back up and ran back into the driver’s seat of the blue Renault. The offender then left Mr Sunter’s car and re-entered the front passenger’s side of the blue Renault. The offender became verbally abusive to KF stating ‘if you get me locked up, I will kill you’.
The offender then disembarked from the blue Renault and proceeded to run away from the area. KF drove away from the area heading eastbound on Canberra Avenue.
The offender was arrested later that evening and taken into custody.
Subjective Circumstances
Pre-sentence Report
In evidence before me is a pre-sentence report dated 14 July 2021 (the pre-sentence report). I note that a pre-sentence report was not available in the original sentence in R v Collier, instead the offender’s subjective circumstances at that time were outlined in Counsel’s oral and written submissions and are to be found at paragraphs [24]-[30] of that judgment.
The pre-sentence report notes that service records indicate that the offender’s compliance towards supervision with his suspended sentence and good behaviour order, as well as a NSW Community Corrections Order, has been poor. The offender has been subject to the initiation of breach action in both the ACT and NSW as a result.
The offender was arrested on 20 August 2020 and remanded in the AMC from 21 August 2020. He was extradited to custody in NSW on 3 December 2020 and continues to remain in Goulburn Correctional Facility. The pre-sentence report states that Corrections records demonstrate that the offender was involved in several physical altercations with other detainees and that one incident resulted in injuries to Corrections Officers.
The offender reported to be an Aboriginal man who was born in Queanbeyan. He described his upbringing in negative terms and stated that he was raised predominately by his mother, who heavily abused alcohol and associated with other persons that also abused alcohol. The offender informed the report author that he was subjected to abuse by his mother’s associates.
The offender relocated to New Zealand at age 14 to live with his father and remained there until he was aged 16, when he returned to Australia to reside with his mother. The offender reported having a brother who lives in New Zealand and a sister who resides in Goulburn. He described the relationships with his father and siblings in positive terms, but noted that he has not spoken to his mother for approximately two years. The offender informed the report author that he is single with no dependents.
Prior to being remanded in the AMC, the offender stated he was residing with his aunty and her partner at her property in Queanbeyan. He claimed he was residing at this address for approximately four months and that he had been ‘couch surfing’ for approximately five months prior. The offender stated he would be able to return to side with his aunty in the event the was released from custody.
The offender reported that he had left mainstream schooling prior to completing his year 10 certificate with the intention of seeking employment. He stated that he has held various jobs, with his most recent job being in the construction industry. The offender reported he was reliant on social assistance for approximately six months prior to being remanded in custody. He stated this was due to a wrist injury he had sustained in approximately 2019 which meant he was unable to work. The offender noted that while he has approximately $4,000 owed in debts, he assesses his financial situation as stable.
The offender reported a history of illicit substance use and reported that he first commenced using cannabis at age 15. He stated that he would use upwards of one gram every day and continued to use cannabis daily until he was remanded in custody. The offender also reported that he had commenced using methamphetamine when he was 25 years of age. He informed the report author that he would use methamphetamine every day and also sustained this level of use until he was remanded in custody. A Drug Abuse Screening Tool was administered which assessed the offender’s self-reported illicit substance use over the preceding 12 month period as being at a severe level, warranting further investigation.
The offender denied having undertaken any previous assessment or treatment regarding mental health concerns. He reported that he would use illicit substances to self-medicate for possible underlying mental health issues. The offender stated that he is investigating treatment options for his pre-existing wrist injury.
The pre-sentence report noted that the offender had accepted full responsibility for his actions which led to him breaching his good behaviour order. The offender reported that he was heavily under the influence of methamphetamine at the time the further offending of the assault occasioning actual bodily harm and affray occurred. The offender noted that he also hadn’t slept in approximately three days in the lead up to those offences. He expressed empathy towards KF and stated he wished he had handled the situation differently. The offender admitted his noncompliance towards his good behaviour order obligations and reporting requirements. He claimed that this was largely due to his relapse with methamphetamine use.
The pre-sentence report concluded that the offender has been assessed as a medium to high risk of general reoffending. It noted that the offender appears to have experienced a dysfunctional upbringing which involved exposure to alcohol consumption and violence from a young age. The pre-sentence report stated that it was positive that the offender appears to have the support of his father, siblings and his aunty. The pre-sentence report noted that the offender’s risk of reoffending is calculated based on his history of illicit substance use, mental health concerns, history of general and violent offending, and his poor attitude towards supervision.
Getting Equip’d
At the hearing on 23 July 2021, counsel for the offender submitted the offender has been engaging in the ‘Getting Equip’d’ program in the Goulburn Correctional Facility. Counsel stated that the ‘Getting Equip’d’ program was a course on decision making, focussed on how to make positive decisions over negative choices. It also includes one on one counselling with a NSW Corrective Services worker where the offender had the opportunity to raise issues arising from his past. Counsel stated that the offender was due to complete the course on 26 July 2021 (T9.12-28).
On 3 August 2021, Counsel for the offender tendered a copy of the offender’s certificate of completion for the ‘Getting Equip’d’ program dated 26 July 2021. Counsel also tendered an email from the Services and Program Officer of the Goulburn Correctional Centre which confirmed that the offender had completed the ‘Getting Equip’d’ program and was about to commence the ‘Getting Past Addiction’ program.
Consideration
Where an offender breaches any of their good behaviour order obligations and the good behaviour order was part of a suspended sentence order, the court must cancel the good behaviour order and either impose the suspended sentence imposed for the offence or re-sentence the offender: s 110(2) Sentence Administration Act. There is no presumption in favour of imposing the sentence that was suspended: Guy v Anderson [2013] ACTSC 5 at [83]-[87]; R v BC [2020] ACTSC 308 at [35]. However, the failure of the courts to act where there has been a clear breach of the bond by which the offender avoided being sent to prison is likely to bring suspended sentences into disrespect: Director of Public Prosecutions (NSW) v Cooke [2007] NSWCCA 2; 168 A Crim R 379 at [23] cited in The Queen v PM (No 2) [2015] ACTSC 358 at [19] (The Queen v PM (No 2)).
The factors relevant to the consideration of whether to impose the suspended sentence or re-sentence include:
(a) The proportion of the good behaviour order served;
(b) Any rehabilitation attained prior to the breaching conduct;
(c) The nature of the offence which breached the order, including whether it is of similar conduct;
(d) The relative seriousness of the offence causing the breach (whether imposing the sentence would be disproportional to the gravity of the breach) R v Curtis (No 2) [2016] ACTSC 34 at [18]-[19];
(e) The actual facts of the matter for which the offender was first sentenced: R v Beniamini (No 2) [2017] ACTSC 32 at [53];
(f) 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;
(g) Whether the offender has received any warnings with respect to breaches;
(h) The level of understanding of the offender of his obligations under the terms of the order and the consequences of a breach: The Queen v PM (No 2) at [20]-[22]; and
(i) The nature of judicial and community resources previously devoted to the offender: R v Bennett [2017] ACTSC 104 at [11].
Prosecution Submissions
In written submissions in relation to consideration (a) detailed in the preceding paragraph, being the proportion of the good behaviour order served, the prosecution submitted that the offender demonstrated almost no compliance with the supervision requirement of the good behaviour order from its commencement. It was noted that the re-offending occurred approximately half-way through the term of the good behaviour order.
The prosecution submitted that there was no evidence that the offender had made any attempts to rehabilitate prior to the breaching conduct: consideration (b).
In relation to consideration (c) the prosecution submitted that one of the fresh offences, the assault occasioning actual bodily harm, was a protracted and serious assault committed on his on again off again partner. It was noted that the assault included, inter alia, punching KF to the face and stomping on her head multiple times. The prosecution further noted that the offender had also committed an affray on innocent bystanders who attempted to intervene to assist KF during the course of the assault. It was noted that while the offence to which the suspended sentence attaches was technically different, (the ulterior intent was to steal so the offence is one of dishonesty), that offence occurred in the course of a violent assault. The prosecution also referenced the failure to appear offences that also amounted to a breach of the good behaviour order obligations.
The prosecution submitted that imposing the balance of the suspended sentence would not be a disproportionate response. It was underlined that the breaching conduct was serious and that the offender could expect to be sentenced to a not insignificant period of imprisonment in relation to the fresh offences: consideration (d).
The prosecution noted that the original sentence was imposed for an aggravated burglary and referenced that I had found the offence to be in the mid-range for what are inherently serious offences: consideration (e).
In relation to consideration (f), the prosecution submitted that the re-offending in combination with the corrective services breach suggested that the offender cared little for the terms of his good behaviour order.
The prosecution noted that the offender had not received any formal warnings in relation to the breaches: consideration (g).
It was submitted by the prosecution that the Francis affidavit suggested that the offender was aware of his obligations in that he would frequently call to indicate he could not attend an appointment: consideration (h).
The prosecution submitted that resources have been devoted to assisting the offender but conceded that it was not over and above what would ordinarily be expected in a matter of this kind: consideration (i).
The prosecution ultimately submitted that consideration of the factors pointed in favour of the balance of the suspended sentence being imposed. It was submitted that a failure to impose the balance in the present matter would undermine the integrity of the system of suspended sentences and their effectiveness as a means of deterring future offenders: Taylor v Bowden [2009] ACTSC 13 at [35] citing R v Marston (1993) 60 SASR 320 at 322.
At the hearing, counsel for the prosecution maintained the submission that the balance of the suspended sentence, being 12 months imprisonment, should be imposed in light of the offender’s multifaceted breaches and the seriousness of the fresh offences that involved violence (T19.1-5 & T20.7-9).
Defence Submissions
Counsel for the offender submitted that in relation to the corrective services breaches, the offender was not being outrightly contumacious to the obligations of the good behaviour order but was instead a victim of the circumstances he found himself in. It was noted that the non-compliance had followed damage to the offender’s house by fire and the offender had then gone through a period of homelessness (T5.1-3).
Counsel noted that the offender did call on a number of occasions to reschedule appointments as well as informing corrective services when he was running late. It was submitted that this could be distinguished from an offender would simply did not turn up to appointments and did not maintain contact. Counsel for the offender noted that this was due not only to the adversity of the offender’s circumstance, but also that he had found himself back using methamphetamine once again (T5.15-20).
Counsel referred to the offender’s background which included the family history of alcohol misuse and substance misuse. It was submitted that the offender’s relapse back into illicit substance use himself is more understandable in the context of inter-generational cycles of substance abuse. Counsel also handed up the Bugmy Bar Book chapter titled Early Exposure to Alcohol and Other Drugs in support of the proposition that children of parents who misuse alcohol and drugs are at greater risk of subsequently developing alcohol and other drug problems themselves (T5.40-46) & T6.17-21).
It was conceded by counsel for the offender that in ordinarily in circumstances dealing with a s 110 breach, the Court would be minded to impose the balance of the suspended sentence. Counsel submitted that the Court should instead re-sentence the offender to recognise the unfortunate circumstances he had found himself in leading to and precipitating the breaches. Counsel also referenced the offender’s participation in the ‘Getting Equip’d’ program in support of the submission to re-sentence the offender to a lesser period than the balance of the suspended sentence (T6.31-37 & T9.12-14).
Counsel made submissions in relation to the operation of s 65 of the Sentencing Act which would be triggered in the event that the Court was minded to impose the balance of the suspended sentence. That section states:
Nonparole periods—court to set
(1)This section applies if the court sentences the offender to a term of imprisonment of 1 year or longer, or 2 or more terms of imprisonment that total 1 year or longer.
(2)The court must set a period (a nonparole period) during which the offender is not eligible to be released on parole.
NoteIf the offender is released on parole, the sentence is not discharged unless the parole is completed without the parole order being cancelled (see Crimes (Sentence Administration) Act 2005, s 140 and s 160).
(3)When the court sets the nonparole period, the court must state when the nonparole period starts and ends.
NoteA sentence may be backdated to account for time already held in custody (see s 63).
(4)However, the court may decline to set a nonparole period in sentencing the offender if the court considers that it would be inappropriate to set a nonparole period having regard to the nature of the offence or offences and the offender’s antecedents.
…
It was submitted that if the Court determined it appropriate to impose the balance of the suspended sentence of 12 months imprisonment, the Court ought to decline to set a nonparole period for the offender. Counsel stated that in a practical sense, it would be of no benefit to the offender to receive a non-parole period (T22.36-42). It was further submitted that as the original sentence was a suspended sentence and the offender had originally had the benefit of that suspension initially, it was not ordinary practice for a non-parole period to be set if the balance was imposed (T23.19-22).
Conclusion
I propose to deal with the offender’s breach by way of re-sentence, rather than imposing the balance of the suspended period. There is a recognition in the authorities that justice may require a different response than imposing the balance of a suspended sentence: The Queen v PM (No 2) at [20]; R v Goolagong (No 2) [2021] ACTSC 131 at [148].
I propose to re-sentence because of the following matters:
(a) The offender had made some initial attempts to communicate with ACT Corrective Services;
(b) The unfortunate history of homelessness that occurred thereafter; and
(c) The completion of the ‘Getting Equip’d’ program.
I also note that while I can take into account the relative seriousness of the offences that caused the breach, I am not ultimately sentencing the offender for those matters. It will be a matter for the Magistrates Court to proceed with the sentencing exercise concerning the further offences, taking into account the principles of totality.
In re-sentencing, I will nevertheless impose a significant portion of the original 12 month period. I will impose 10 months imprisonment. It is a significant period. I have accepted both the prosecution’s submissions and the submissions of counsel for the offender in the process of instinctive synthesis and re-sentence.
Orders
I make the following orders:
(a) The good behaviour order dated 19 December 2019 is cancelled.
(b) The offender is re-sentenced to 10 months imprisonment, commencing on 20 August 2020 and concluding on 19 June 2021.
| I certify that the preceding sixty-five [65] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson Associate: Rhiannon McGlinn Date: 5 August 2021 |
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