R v Collins (No 2)
[2021] ACTSC 262
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Collins (No 2) |
Citation: | [2021] ACTSC 262 |
Hearing Date(s): | 7 May 2021 |
DecisionDate: | 10 May 2021 |
Before: | Refshauge AJ |
Decision: |
a. Comply with the core conditions of the order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) for the term of the Order and complete such case management and programs as may be required by the Treatment Order Team from time to time, or by Court, including as to counselling, urinalysis, medical treatment, or such other treatment or programs as may be required from time to time; b. Admit himself to the residential drug rehabilitation program at Arcadia House, Bruce, conducted by Directions Health Services by 12 noon today and not leave the program or the facility without the approval of the Court; c. Participate in the rehabilitation program of Arcadia House, obey all the rules of the program and obey all the reasonable directions of the officer in charge of the program and the facility; d. That, if he does leave the program at Arcadia House or are discharged from that program before you complete it, he reports to ACT Corrective Services by 4:00 pm on the next business day after his departure, with a view to having the Drug and Alcohol Treatment Order reviewed; and 22. Brent Douglas Collins be directed to comply with any directions that the Court may make from time to time about attendance at Court, in person or by electronic means 23. Brent Douglas Collins be directed to attend Court on 14 May 2021 at 12:30 pm. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sentence – dishonestly driving a vehicle without the owner’s consent – driving a motor vehicle without consent – driving while disqualified – failing to stop when requested by police – common assault – intimidating an ACT public official – Breach of Good Behaviour Order – Drug and Alcohol Treatment Order |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 12A, 33, 46J Crimes Act 1900 (ACT) ss 27, 29, 116 Supreme Court Act 1933 (ACT) Pt 8 |
Cases Cited: | Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 Dickson v Johnson [2015] ACTSC 94 R v Massey (No 1) [2020] ACTSC 256 R v Mathews [2020] ACTSC 364 R v Reid [2021] ACTSC 72 R v Spencer [2014] ACTSC 364 The Queen v NE [2015] ACTSC 352 |
Parties: | The Queen (Crown) Brent Douglas Collins (Accused) |
Representation: | Counsel M Howe (Crown) B Morrisroe (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Boxall Legal (Accused) | |
File Number(s): | SCC 167 of 2018 SCC 168 of 2018 SCC 44 of 2020 SCC 45 of 2020 |
REFSHAUGE AJ
Introduction
It is inevitable that chance, some call it fate, leads to a person's character and personality formation, especially those experiences that they have in their formative years, which can lead to behaviour that is motivated by these experiences.
Such experiences can explain subsequent behaviour and, depending on their cause, the consequences and their severity. They can be very relevant to an assessment of the moral culpability of an offender.
Of course, sentencing courts must pay careful attention to the extent of the childhood experiences of an offender, but must not assume that every vicissitude of life will justify a mitigation of criminality.
On the other hand, it cannot be doubted that such experiences can form behaviours and attitudes which continue to have a pervasive and negative effect without significant intervention.
Thus, where persons are motivated or pre-disposed to commit offences because of a dependency on illegal drugs or alcohol, it can be relevant to consider the circumstances in which this began and at what age, especially if earlier than what might be regarded as an age of mature consent: see R v Henry (1999) NSWCCA 111; 46 NSWLR 346 at 397-8; [273].
I must now sentence Brent Douglas Collins for seven offences to which he has pleaded guilty, namely two offences each of dishonestly driving a motor vehicle without the owner's consent and of driving whilst disqualified as a repeat offender and an offence each of damaging property, dangerous driving as a repeat offender, failing to stop when required by police, common assault and intimidating a public official.
The findings of guilt which I must make on Mr Collins' pleas of guilty will prove the commission of offences which constitute a breach of a Good Behaviour Order made in 2019 by Loukas-Karlsson J in R v Collins [2019] ACTSC 302 for somewhat similar but less serious offences.
While it is ‘logical and seems convenient’ that the judicial officer who imposed the Good Behaviour Order should deal with any breaches (R v Judge Leckie; Ex parte Felman (1977) 18 ALR 93 at 99), that is not an immutable principle and a Good Behaviour Order is an order of the Court and can be dealt with by any member of the Court: Robertson v Leferve [2012] ACTSC 22; 258 FLR 1 at 8; [32].
The parties invited me to deal with the breaches of the Good Behaviour Order and consented to me doing so. I will do so.
In addition to pleading guilty, Mr Collins has sought that I make a Drug and Alcohol Treatment Order (a Treatment Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). I must, however, first sentence Mr Collins and then consider whether such an Order can be made.
On the sentencing proceedings, the Crown tendered the Crown Sentencing Tender Bundle in two parts. The tender was not objected to, nor was there any challenge to any of its contents. It contained, in addition to the formal documents of committal and of the transfer of the summary offences under s 90B of the Magistrates Court Act 1930 (ACT) to be dealt with under Part 8 of the Supreme Court Act 1933 (ACT), the Agreed Statement of Facts, an up‑to‑date Criminal History of Mr Collins, the relevant documents for the breaches of the Good Behaviour Order by further offending, including a copy of R v Collins, the sentencing remarks when the Good Behaviour Order was made, the Crown Tender Bundle for those sentencing proceedings, the documentary evidence of the breaches of the Good Behaviour Order constituted by failure to comply with supervision and the Statement of Facts prepared by police relating to the breaches of the Good Behaviour Order, as constituted by offences dealt with in the ACT Magistrates Court.
In addition, the Crown Sentencing Tender Bundle included the Drug and Alcohol Sentencing List Suitability Assessment, dated 16 April 2021, of Canberra Health Services and the Drug and Alcohol Treatment Assessment, dated 14 April 2021, of ACT Corrective Services. These comprise the Drug and Alcohol Treatment Assessments (the Suitability Assessments) under s 46J of the Sentencing Act. The Crown Sentencing Tender Bundle also included the case plan proposed for Mr Collins, were he to be made subject to a Treatment Order.
Finally, for the Crown, a Pre-Sentence Report dated 30 April 2020 for the proceedings before Loukas-Karlsson J was tendered without objection and without challenge.
The defence filed a Tender Bundle, which was tendered without objection and without challenge to any of the documents comprised in it. These were: a psychological assessment report of Dr Danielle Clout dated 21 August 2018, certificates of completion by Mr Collins of a course in Introduction to Recovery dated 11 August 2020, Keeping Myself Well dated 8 September, Goalsetting also dated 8 September 2020, a letter of admission to the Wayback Limited Drug and Alcohol Rehabilitation Centre dated 26 June 2020 (as to which agency, see R v JM [2014] ACTSC 380 at [44]; Dickson v Johnston [2015] ACTSC 94 at [102]; and R v McHughes (No 2) [2021] ACTSC 168 at [6]) and letters of support from his father, mother and grandmother, though the latter was dated 22 May 2020. No oral evidence was given.
I was also greatly assisted by the thoughtful and targeted written submissions of Mr M Howe, for the Crown, and the helpful oral submissions made by both him and Ms B Morrisroe, counsel for Mr Collins. From the documents tendered, assisted by the submissions, I make the following findings of fact.
The Facts
At about 8:30 pm on 31 January 2020, Mr Collins and another man were spoken to by police at a property in Paddys River Road, ACT, when they said that they were looking for a waterhole. They then got in a Ford motor vehicle which had been stolen the previous day.
They drove to the Cotter Camping Grounds on Cotter Road and, about 20 minutes later, were again approached by police. At the time, the bonnet of the vehicle was open and the two men appeared to be working on the engine.
The two police officers parked their vehicle about three metres in front of the Ford vehicle, activated their emergency lights, got out of their police car and approached the Ford motor vehicle. As they did so, Mr Collins and the other man got into the Ford vehicle and, when the police officers were on either side of it, Mr Collins, who had got into the driver's seat and had started the motor vehicle, revved the motor to the maximum of the rev limiter. This constituted the offence of intimidating a public official.
Mr Collins then tried to put the vehicle into gear while the police officers gave both males clear directions to get out of the vehicle, but neither of them did so. One of the police officers opened the driver's side door and again told Mr Collins that he should get out of the vehicle. Instead, Mr Collins reached into the vehicle, causing the police officer to draw his firearm and direct Mr Collins to show his hands. Mr Collins reached up and took hold of the firearm, but the officer managed to remove Mr Collins' grip from the firearm and spray him with oleoresin (OC) spray. These facts form the basis of the charge of common assault.
Mr Collins managed to get the vehicle moving, accelerating forwards towards the police vehicle and one of the police officers. His clear failure to comply with the directions of the police amounted to the offence of failing to stop when requested by police.
As Mr Collins drove the motor vehicle forward, the police officer had to jump aside to avoid being struck by it. The motor vehicle then drove so close past the police vehicle that it struck the passenger side door, which was open. This damaged the door, also an offence.
As the bonnet of the vehicle was still up, it had completely restricted Mr Collins' vision.
Mr Collins was, at the time of the driving, disqualified from holding or obtaining a driver licence. He had been disqualified from holding or obtaining a driver licence on 5 June 2017, but, having driven while disqualified on 16 August 2017, 13 December 2017 and 24 January 2018, further cumulative disqualifications had been imposed on conviction for each offence, so that he was disqualified from holding or obtaining a driver licence until 27 November 2022. He was still under disqualification as at 31 January 2020, thus this driving constituted a further offence of driving whilst disqualified and also, because of a previous conviction for such an offence, as a repeat offender.
As the motor vehicle had been stolen, he had no consent from the owner to drive it. This was the offence of dishonestly driving a motor vehicle without the owner's consent.
Mr Collins then drove the Ford motor vehicle onto the Cotter Road. Police pursued it and caught up with it when it came to a stop, about 10 metres in front of the police vehicles. Mr Collins reversed the Ford vehicle towards the police vehicle, causing the police officer driving it to reverse away. Mr Collins then accelerated away from the police, travelling on the incorrect side of the road as he approached and crossed the bridge over the Murrumbidgee River. This constituted the offence of dangerous driving.
Police appear to have abandoned the pursuit.
A short time later, Mr Collins walked into a property at Stromlo, telling the occupant that he was cut, had injured his hand in an argument with his ex‑girlfriend and needed to go to hospital. As the occupant went to get her father, Mr Collins jumped into the swimming pool on the property, disclosing some scratches on his back.
Mr Collins then walked away from the swimming pool into the dark, around to the side of the house, got into a Nissan utility and, as the keys had been left in the ignition because of the bushfire emergency, drove away without the owner's permission. This was the second offence of dishonestly driving a motor vehicle without the owner's consent.
He then drove directly at police patrolling the area, but swerved, narrowly avoiding them. Mr Collins, however, soon abandoned the Nissan utility and police later found him injured and not moving nearby. He told police that he had hit his head on the steering wheel. He was arrested.
The Proceedings
As noted above (at [29]), Mr Collins was arrested on 31 January 2020 and is noted as having appeared in the ACT Magistrates Court on 2 February 2020, where he was charged with all the offences, save that of intimidating an ACT public official. That appearance is somewhat curious as 2 February 2020 appears in my calendar to be a Sunday.
In any event, he was remanded in custody and the proceedings were adjourned three times, for short periods, until 3 March 2020, when he entered pleas of guilty to all the charges and was committed for sentence to this Court on the indictable charges and the summary charges were transferred under s 90B of the Magistrates Court Act 1930 (ACT) to be dealt with under Part 8 of the Supreme Court Act 1933 (ACT).
He was also charged on that day, 3 March 2020, with the offence of intimidating an ACT public official, to which he pleaded guilty immediately and which charge was also transferred to this Court.
The proceedings were, however, complex and it is necessary to have some understanding of related proceedings to fully comprehend this matter, including matters that directly impact the sentence that must be imposed on Mr Collins.
It is convenient to start on 13 December 2017, when Mr Collins committed offences of dishonestly taking a motor vehicle without the owner's consent, driving whilst disqualified as a repeat offender, minor theft, obtaining property by deception and damaging property. On 14 March 2018, he committed further offences of dishonestly driving a motor vehicle without the owner's consent, driving whilst disqualified, and aggravated dangerous driving.
He pleaded guilty to all these offences on 28 June 2018 and was committed for sentence to this Court. The matters came before Loukas‑Karlsson J on 28 August 2019 and, on that day, her Honour sentenced him to a total sentence of two years imprisonment to commence on 1 December 2018, but released him that day and made a Good Behaviour Order with a probation condition for two years from that day. Her Honour also made various reparation orders and disqualified him from obtaining or holding a driver licence for 36 months from that day.
Meanwhile, Mr Collins appeared before Magistrate Morrison for sentencing for offences committed on 16 January 2018 and 24 January 2018, those being a breach of a bail undertaking, unlawful possession of stolen property, minor theft, driving whilst disqualified, driving a motor vehicle with number plates issued for another vehicle and two counts of obtaining property by deception. As these offences were committed prior to the date on which Loukas-Karlsson J imposed the Good Behaviour Order, they did not breach that Order.
Magistrate Morrison sentenced Mr Collins to a total sentence of 9 months imprisonment on 4 November 2019, but suspended that sentence and made a Good Behaviour Order for a period that was concurrent with the Supreme Court Order, with the same conditions as her Honour had imposed. He also imposed fines for two of the offences.
Mr Collins then committed further offences between 22 January 2019 and 25 January 2019, on 29 December 2019 and between 25 January 2020 and 25 July 2020. These offences were damaging property, minor theft, driving a motor vehicle with number plates issued for another vehicle and two counts of obtaining property by deception. These offences were committed prior to the offences for which I have to sentence Mr Collins. They did, however, breach both the Good Behaviour Orders made by this Court and that of the Magistrates Court.
On 17 September 2020, Magistrate Morrison sentenced Mr Collins for the offences before him and imposed a fine (which was the only penalty imposed for these offences). Because of those offences, the convictions for which constituted breaching offences which were committed while he was subject to a Good Behaviour Order, his Honour cancelled the Good Behaviour Order he had made. Having been referred to the Pre-Sentence Report prepared for the sentencing proceedings, his Honour also took into account some of the breaches of supervision that Mr Collins had committed while also subject to the Order. His Honour imposed a total sentence of one year, three months and one day imprisonment from 11 November 2020 to 28 February 2021 on re-sentencing for the offences for which the cancelled Good Behaviour Order had been made.
This complicated scenario affects the sentencing process for the offences before this Court for sentence today.
The proceedings in this Court have also been a little tortuous for various reasons. After the committal, the matters came before the Court on 16 March 2020 and were referred to the Registrar's List, as is customary. When the matter came before the Registrar, a request was made for the matter to be considered for inclusion in the Drug and Alcohol Sentencing List (the List) and Mr Collins appeared in that List before Walker AJ on 24 March 2020, when he was found ‘prima facie’ not suitable for a Treatment Order and so was referred back to the Registrar for listing for sentence.
Since then, the restrictions imposed by the government to deal with the COVID‑19 pandemic, serious illness in the family of one of Mr Collin's legal representatives, other proceedings involving Mr Collins in various courts and other complications meant that it was not until 8 December 2020 that the proceedings were allocated a hearing, with the intention of seeking referral to this List for consideration of Mr Collins’ suitability for a Treatment Order, and an Eligibility Assessment (as to which, see R v McHughes [2021] ACTSC 92 at [7]) was ordered.
The matter came before me on 19 February 2021 and I received Eligibility Assessments showing Mr Collins was eligible for a Suitability Assessment. I set a date for sentence, making appropriate directions, including ordering the Suitability Assessments, to prepare for the hearing.
Mr Collins has been in custody since 31 January 2020. Most of that time, however, he has been a sentenced prisoner. Nevertheless, it is not irrelevant to the sentence. He completed all terms of imprisonment on 30 April 2021, so that he has been in custody, solely on these charges, for 10 days.
The Offences
Section 33 of the Sentencing Act sets out matters which a court, in deciding how an offender is to be sentenced, must consider. The first of these considerations in s 33(1)(a) are the nature and circumstances of the offences. The circumstances of the offences are explained in the facts and I have described them above (at [15]-[27]).
So far as the nature of the offences are concerned, the principal consideration in this regard is the maximum penalty. Thus, the High Court has, in a number of cases such as Gilson v The Queen (1991) 172 CLR 353 at 364, Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 372, [30]–[31] and, more recently, Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 133, [31], emphasised the importance of the maximum penalty provided for in the legislation establishing the statutory crime. This is because it is mandated so by the legislature, it invites comparison with the worst possible case and the case before the Court and it provides, in balance with all other factors, a yardstick, also providing an indication of the relative seriousness of the particular offence as committed.
Most offences, however, can be committed in a variety of ways and the seriousness of the actual offence committed, the circumstances, is determined by factors identified by sentencing judges and Courts of Appeal, from time to time, as to the aggravating features or mitigating features. This is part of the process which is also a matter for the Court sentencing an offender to consider under s 33(1)(za) of the Sentencing Act, namely current sentencing practice.
Dishonestly driving a motor vehicle without the owner's consent is an offence against s 318(2) of the Criminal Code 2002 (ACT), which prescribes a maximum penalty of 5 years imprisonment, or a fine of $80,000, or both. It is, therefore, an offence of moderate significant seriousness.
Part of the seriousness of the offence is the fact that a car is, after a house, probably the most significant purchase made by its owners and, especially in Canberra, an important means of transport of which this illegal use deprives the owner: see R v Forrest (No 2) [2017] ACTSC 83 at [75].
As indicated in R v Massey (No 1) [2020] ACTSC 256 at [56], the subsection encompasses both driving and riding in a motor vehicle in such circumstances and provides for the same penalty for both forms of the offence, but the driving of the vehicle appears to be a more serious offence than merely riding in it as a passenger.
In addition, as pointed out in R v Fry [2021] ACTSC 138 at [49], other factors relevant to the sentence for this offence include: the length of time during which the car was driven, whether it was used for the commission of another offence or offences, whether the vehicle was damaged during its use, whether it was returned to the owner and the manner of driving. Of course, some of these factors can constitute a separate offence and, if charged, they must not be taken to punish an offender twice for the same criminality.
In the first of these offences, Mr Collins did drive the motor vehicle from at least Paddy’s River Road to the bridge of the Murrumbidgee River and then to at least around Stromlo, which appears to be somewhat less than 20 kilometres, not a very long distance, and for a relatively short duration.
There is, however, no indication in the facts before me that the vehicle was not recovered by the owner, nor that it was damaged, other than the slight damage that may have been occasioned by the collision with the door of the police vehicle.
In this case, the driving was dangerous and the motor vehicle was used in the course of committing a number of offences and, indeed, was used to effect the offences of driving whilst disqualified as a repeat offender, failing to stop, damaging property and intimidating an ACT public official. Care must be taken in sentencing the offence of dishonestly driving a motor vehicle without the owner's consent, as all of these matters are also charged as separate offences.
Relevant also is the repetition of such offences by Mr Collins, which is a relevant factor, although it may not be regarded strictly as increasing the seriousness of the offence, rather than simply aggravating the sentence to be imposed.
The second offence, although it involved Mr Collins actually taking the Nissan utility, was charged as dishonestly driving it without the owner's consent. The two offences have, however, the same maximum penalty, so it may not matter very much which is actually charged, though taking is usually regarded as somewhat more serious than driving. In this case, the motor vehicle was driven for quite a short period, but was driven in a dangerous way, which was not separately charged. He abandoned the vehicle, which appears to have been recovered and of which there is no evidence of damage.
Driving whilst disqualified is prohibited by s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) and attracts a maximum penalty of one year imprisonment, or a fine of $16,000, or both, where the offender is a repeat offender, as is Mr Collins.
I have considered this offence in some detail in Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 at 306-308; [33]-[38]. In summary, relevant factors are the purpose for which the offender was driving, whether the driving was associated with other offences, but with the caveat that double punishment must be avoided.
Whether the driving was contumacious is also relevant. This can be assessed by matters such as the recency of the disqualification, the purpose of the driving, the manner of driving and the commission of similar offences previously.
All of these factors were present in the first of these offences. Mr Collins drove the motor vehicle relatively soon after his most recent disqualification, namely on 4 November 2019, he drove it, at least in part, to commit other offences, it was driven dangerously and he had committed many prior such offences. This was a serious example of contumacious offending.
In addition, the length of driving is relevant here. The driving was of a moderate, but not long, period for the second offence of this character. Apart from the dangerous driving, which was not charged, it was not really driven to commit other offences and was only briefly driven, so far as the evidence shows, though dangerously. It was a less serious version of the offence, though still contumacious.
The offence also carries a mandatory disqualification from holding or obtaining a driver licence for 24 months, or such longer period as the Court determines. Such disqualifications are required to be cumulative on any current disqualification. The Court may, under s 69 of the Road Transport (General) Act 1999 (ACT), however, direct that the whole or part of the disqualification can be served concurrently with any current disqualification.
Damaging property is made an offence by s 116(3) of the Crimes Act 1900 (ACT), which specifies a maximum penalty of 2 years imprisonment, or a fine of $8,000, or both. The critical factor is the value of the damage. Unfortunately, as so often occurs, there was no indication of the seriousness of the damage or its value in the evidence.
It is clear that factors of aggravation must be satisfied beyond reasonable doubt: R v Carney [2013] ACTSC 266 at [149]. Nevertheless, the Court can take notice of matters that are common sense and it would appear that the damage was not trivial, but I could not find that it was significant. It was also not clear whether it could be said to be deliberately caused. The Statement of Facts does not assist with this, though Mr Collins was more culpable as he was driving at that stage with the bonnet up, which he knew was restricting his view of the road ahead. The Crown properly conceded that the damage was inflicted recklessly, not intentionally.
Dangerous driving is an offence contrary to s 7 of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) for which the section establishes a maximum penalty of 2 years imprisonment, or a fine of $32,000, or both. Obviously, such an offence must be taken seriously as such offences risk the safety of many others, including passengers in the car, other road users, pedestrians, and even others going about their ordinary activities who, when a car drives dangerously and may leave the road, could be harmed or worse.
I have considered some of the relevant factors in R v Pelecky(No 2) [2020] ACTSC 320 at [45]-[46] and R v Lyons (No 1) [2020] ACTSC 358 at [16]-[17]. Thus, it is important to have regard to, if there is evidence of, the number of people put at risk. Certainly, the police officers who had spoken to Mr Collins were put at risk and one had to jump aside. There was no evidence, however, of any other traffic on the road, which was effectively a country road, and there would unlikely be any pedestrians on it as it is not a suburban built-up area.
The conviction of the offence also attracts a mandatory driver licence disqualification, which also is subject to s 69 of the Road Transport (General) Act.
Section 5C of the Road Transport (Safety and Traffic Management) Act makes failing to stop when requested by police an offence and sets a maximum penalty, for a repeat offender, of 3 years imprisonment, or a fine of $48,000, or both. It is thus to be regarded more seriously than dangerous driving.
In this case, there were repeated demands made by police for Mr Collins to stop the vehicle and, as it turned out, his driving away, in contravention of the request made of him, led to him causing danger to the police there and, in fact, damage. At the time, he had been sprayed with OC spray, likely to have impaired his driving, and he drove with the bonnet still raised, creating a very dangerous situation. That offence also attracts a mandatory licence disqualification and I will deal with that in the sentence.
Finally, Mr Collins, by revving his vehicle’s engine, constituted an intimidation of police officers who were ACT public officials, which he knew. This is an offence contrary to s 361(1) of the Criminal Code and attracts a maximum penalty of 2 years imprisonment, or a fine of $32,000, or both.
The intimidation here was direct, in the sense that the police officers were to the side of the vehicle. They were trying to get Mr Collins out of it. The vehicle was not facing them, which would have been much more threatening. The purpose, I consider I can accept, was that Mr Collins wished to escape and drive away as he ultimately did, thus avoiding arrest at that point. It was not a significantly serious version of the offence.
Subjective Circumstances
Mr Collins is 30 years old. He was born in Canberra, the only child of his parents. He was the youngest of a family which included three other half-siblings who were older than him in the blended family. He has a good relationship with them.
Although he reported a positive upbringing, there appears to be a number of issues in the various reports that are relevant to his childhood. It is reported that he had witnessed frequent parental arguments and alcohol misuse, which latter problem did not negatively impact directly on him, save as to normalising that behaviour.
He was generally good at sport, which he liked, but his involvement was brought to an end when he suffered a sporting injury while at high school, which precluded his further sporting participation. This led him into associations with antisocial peers due to boredom and, importantly, being unable to relate to his former prosocial peers because he was no longer participating in activities with them.
According to one report, his school time was marred by frequent fighting, smoking and truancy, which resulted in detentions and suspension.
Mr Collins completed Year 10 at school and then left. He worked for two years at a car yard, which appears to have been owned by his brother. He then worked at various businesses as a car salesman, including for his father. He started his own spray-painting business in 2015, which he ran for two years until his drug use and criminality made that impossible. He has mostly been unemployed since then, though he did have some ‘very short-term work’ until he relocated to Queensland in May 2018, where he got a job as a barista.
He was extradited to the ACT apparently in June 2018 to face charges for offences that had allegedly been committed in 2017.
He has had two serious relationships: the first from about the age of 14 that lasted for about three years, until he and his then partner decided to go their separate ways. The break-up was hard for him as he ‘did not cope very well’ after it. The more recent relationship, his second relationship, commenced when he was 21 years old and lasted for about a year, but ‘ended badly’ when his partner cheated on him. Both partners alleged that he committed domestic violence during the relationships, which he denies and no findings appear to have been made.
He has an ongoing relationship with his parents, though his drug use and criminality has put significant strains on them. Both parents wrote supportively of him and he is especially close with his mother. Both wrote of the family events he has missed due to his drug use, despite being close to his half-siblings and seven nieces.
What really affected him was the death of his grandfather while he was in custody, though he was granted day bail to attend the funeral. He could not, however, mourn with all the family.
He is also very close to his grandmother, who has visited him in the Alexander Maconochie Centre while visits were available.
All three (his parents and his grandmother) have expressed confidence that Mr Collins is now on the road to wanting to engage seriously with rehabilitation. The death of his grandfather may have been a trigger for him starting to concentrate on the future, described by his mother as ‘wanting to settle down and start a family of his own and needing to spend quality time with his nieces and other family members.’
His grandmother has also noticed a change in Mr Collins. Her letter was not so recent, but he has not committed any further offences since it was written and has completed some courses while in custody.
Mr Collins appears to have no current significant physical health conditions, though he is still prescribed anti-inflammatory medication for the sports injury he suffered in his youth. He was diagnosed with Attention Deficit Hyperactivity Disorder when he was 23 years old and he was prescribed medication, though he wants to try and remain un-medicated because of the addictive nature of the medication. He has been using physical activity to assist. His impulsivity has been aggravated by his drug use.
I read the detailed and thorough report of Dr Clout. She reported some experiences Mr Collins had of significant anxiety throughout his life, beginning in his early school years and including a major depressive episode when he was 17 years old. She reported in August 2018 that his current medical health was ‘mostly okay,’ and he seems to have largely maintained that position since then.
Unfortunately, Mr Collins is not a good historian and he gave different versions of his alcohol and other drug use at different times. Mr Collins said that he first used alcohol at a relatively early age. One report was at the age of 13 and the other at the age of 16. He drank regularly until he was about 17 or 18 years old and then, it appears, he drank on weekends until he was 24 years old, when he started using methamphetamine. He is not presently consuming much alcohol, perhaps only four standard drinks per month, but has not drunk any alcohol while in custody.
He first smoked cannabis at either age 14 or age 17 and by the age of 17 or 18 was smoking daily, usually about half a gram. He has had periods of abstinence, but his use decreased when he started using methamphetamines at age 24. He ceased in May 2018, when he stopped using drugs, though according to another report he has used in April or May of 2020.
His use of methamphetamines began when he was 19 or 24 years old, depending on the report. By age 25, however, both reports state that he was using regularly. He progressed from smoking to intravenous use, influenced by others who were using in the same way. He reported spending about $1,000 a week on drugs, which required him to resort to crime to fund his habit.
He says that, in May 2018, he managed just to stop using drugs, which is often called going ‘cold turkey’. As this report was made in August 2018, it appears that he may have reverted to using again, perhaps due to his legal issues and the stress that that might have caused.
As to other drugs, he has used amphetamines, MDMA, ecstasy, cocaine, LSD and other non-prescribed medication, but not to any significant degree. He smoked heroin once, but did not like it. He has been diagnosed with a stimulant use disorder and says that when he committed his current offences he was not ‘in a good state of mind’ and was ‘very under the influence’.
Mr Collins has engaged in some alcohol and other drug treatment. He had some counselling from Directions ACT for about six months when he was about 25 years old, but he did not find it helpful, perhaps because he was then using drugs heavily. He discontinued the sessions.
He did attend a residential drug rehabilitation program at One80TC, an alcohol and other drug rehabilitation agency established in 1977 and now located in the Blue Mountains area of New South Wales. He attended for nearly a year from 3 September 2018 to 30 August 2019. It is not clear from the reports what success he had there, though one report was that he relapsed shortly after graduation.
It is also reported that he declined an offer for participation in the Solaris Therapeutic Community program while in custody at the Alexander Maconochie Centre. For that program, see R v JM at [26].
Mr Collins has a relatively short criminal history, commencing in 2009. He has 37 offences on his record. Of these, nine are dishonesty offences, including five offences of obtaining property by deception, which property was clearly intended to fund his drug habit. Worryingly, his history includes two offences of dishonestly driving or taking a motor vehicle without the owner's consent. A further 15 offences are traffic offences, including four previous offences of driving whilst disqualified. An earlier offence of dangerous driving also appears in his record.
Mr Collins received his first sentence of imprisonment in August 2019, but it was immediately suspended so that the only period of imprisonment was of Pre-Sentence Custody on remand. That may have also applied to earlier legal matters. He was then imprisoned by Magistrate Morrison on 17 September 2020, as noted above (at [38]).
Mr Collins, were he to be released into the community, is able to live with a friend in Isaacs and the premises have been assessed through ACT Corrective Services as suitable and raising no concerns.
Mr Collins has been assessed as being at a medium to high general risk of re‑offending. The primary risk factors are his illicit substance use, unemployment, antisocial companions and his attitude to offending.
The evidence of his parents seems to moderate this latter concern. They suggest that he is showing a different attitude to them after the recent years of unacceptable behaviour. He is reported to understand that, without change, he will live a life of a vicious cycle of offending and incarceration. He is also reported to have understood, with the death of his grandfather, that he is being robbed of much of his family life. He has reconnected with a half‑sister with whom he had lost contact through his crime and by drug use.
His behaviour whilst under supervision has, however, been of concern. As well as re-offending, he did not attend for supervision on 10 and 16 October 2019, 22 November 2019, 17 December 2019, and 10 January 2020. He also failed to attend appointments that he had been directed to attend at Directions ACT.
Some of these failures are breaches of the Good Behaviour Order made by Magistrate Morrison, as the conditions of both his Honour's Good Behaviour Order and that of Loukas-Karlsson J were identical. His Honour, however, did not impose his Order until 4 November 2019, so the first of these two breaches of supervision at least pre-dated that time.
Sentencing Practice
As noted above (at [47]), a Court which is to sentence an offender must consider current sentencing practice (s 33(1)(za) of the Sentencing Act). Part of that obligation has been met through the assessment of the factors, which the collective wisdom of judges will determine.
The use of statistics, such as those contained in the ACT Sentencing Database, can inform a Court when it is to sentence an offender, but there are significant limitations to such information and it is critically important that it is not seen as setting boundaries for a definitive range of sentences that must or may be imposed. I will approach such statistics with the care that is required and not rely on them more than their information deserves: see R v Horne [2017] ACTSC 36 at [49]-[53].
For the offences under s 318 of the Criminal Code, a little over 30% of the sentences are recorded in the Database as being of a term of imprisonment of 12 months or longer. This percentage increased to 40% of those who had committed the same offence previously and were then imprisoned. Similarly, of those who were on conditional liberty at the time of the offending, 35% of those sentenced to a term of imprisonment were sentenced to a period of 12 months or more.
Another indication of current sentencing practice is the consideration of other decisions that have some similarity to the instant decisions. As pointed out in MLP v The Queen [2006] NSWCCA 271 by Kirby J at [33], with whom Grove and Hislop JJ agreed, that guidance may be provided by ‘the collective wisdom emerging from a range of sentences involving similar conduct’.
In DPP v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428, Gageler and Gordon JJ pointed out 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.
The Crown referred to three comparable decisions. The first, perhaps unsurprisingly, was R v Collins (2018), where, of course, the personal circumstances were relevantly identical, save that Mr Collins has committed two sets of further offences, one dealt with in the Magistrates Court and the instant offences before this Court. Included in the instant offences are two further offences of the very offences at issue in that earlier decision.
For the offence of dishonestly driving a motor vehicle without the owner's consent, he was sentenced to 9 months imprisonment. It was, of course, a somewhat more serious version of the offence under s 318 of the Criminal Code. It had been reduced from 12 months imprisonment for his plea of guilty.
A motor vehicle was taken from a residential complex. The car had not been recovered at the time of sentence. It had not been used in any other offending, other than him driving whilst disqualified. He had, at the time, no prior offences for the same offence. There was no evidence of any dangerous manner of driving. It was, therefore, a somewhat less serious version of the offence in comparison to the first offence, though more comparable, but still less serious than the second driving offence in this case.
In R v Longmore (No 2) [2019] ACTSC 265, Mr Longmore drove a stolen motor vehicle. He was requested by police to stop, but he drove erratically further until he crashed into a fence. He had methylamphetamine in his oral fluid. He was sentenced to 17 months imprisonment. He had a bad criminal record, but it is not clear whether these were similar offences to this one. For this offence, he was sentenced to 6 months imprisonment. This was not as serious as the instant offence, though there were some similar aspects.
In R v Williams [2017] ACTSC 298, the offender deliberately drove at police. He was charged with driving an offensive weapon to endanger life to prevent his lawful apprehension, an offence against s 27(4)(b) of the Crimes Act, with a maximum penalty of 15 years imprisonment. He was sentenced to 3 years imprisonment.
Later, he drove a motor vehicle at police, colliding with a police officer and injuring him and then, driving again, narrowly missing the police officer. He was charged with culpable driving causing grievous bodily harm, an offence contrary to s 29(4) of the Crimes Act, attracting a maximum penalty of 10 years imprisonment. He was sentenced to 4 years imprisonment.
Although there was the driving at or towards police officers, these were not really comparable cases, although there are some elements of similarity. The maximum penalties, however, showed that the offences were significantly more serious than those Mr Collins faces.
For driving whilst disqualified, I refer to what I said in R v Massey (No 1) at [76]:
In relation to the offence of dishonestly taking, driving or riding in a motor vehicle without the owner’s consent, the statistics show that as at February 2019 – unfortunately the statistics do not include any later results – 91.5 percent of offenders were sentenced to imprisonment in the Supreme Court, of which 74.5 percent were required to spend at least some of that in actual custody. Of these latter, 46.5 percent were sentenced to up to six months imprisonment and 32.5 percent were sentenced to 12 months imprisonment. The maximum sentence was of two years and eight months imprisonment.
In relation to the offence of dangerous driving, the ACT Sentencing Database shows that, in the Supreme Court, only 13 offences were recorded. This is a small number of offences to provide an insight into judicial sentencing practice. The sentences ranged from 12 months imprisonment through to periods of two, three, four, five and six months imprisonment and fines in four cases.
In the Magistrates Court, which deals with most of these offences, over 46% were dealt with by imprisonment, approximately 41% of which were fully or partially suspended sentences. The periods ranged from one month to 16 months, but only 7% of sentences of imprisonment were for more than eight months duration.
Conditional Liberty
Mr Collins was subject to a Good Behaviour Order, imposed by Loukas-Karlsson J in R v Collins (2018), when he committed these offences. He was also subject to the Good Behaviour Order made by Magistrate Morrison.
There are two aspects of this matter. In the first place, the breaching of conditional liberty by committing further offences constitutes an aggravating matter to be taken into account on sentence. It is a breach of the trust that the Court grants when sentencing an offender, allowing them to be in the community rather than in custody for the offences: see R v Mathews [2020] ACTSC 364 at [37]-[38].
It is important, however, that Mr Collins is not punished twice. This is relevant in this case, for Mr Collins has been subject to a further sentence by Magistrate Morrison, who also cancelled his Honour's earlier Good Behaviour Order and then imposed the sentence, which had been suspended.
That does not relieve me from imposing a more severe sentence because of the breach of these two Orders, but that must be moderated, so far as the Magistrates Court orders are concerned, for he has already been punished for that, though that does not entirely relieve me of marking the Court's disapproval that for the instant offences he has breached both Good Behaviour Orders.
There is also a second matter, namely that I must then cancel the Good Behaviour Order made by Loukas-Karlsson J. As said in R v Mathews at [40]:
I have a range of options set out in s 108 of the [Crimes (Sentencing Administration) Act 2005 (ACT)]. They include taking no further action; ordering payment of the security under the Order [although there was none in this case]; or amending the Order. If I order payment of the security, then I can cancel the Order on that payment. I can also cancel the Order and re-sentence Mr Mathews. In order to consider the appropriate option, it is necessary to have information about the offence for which the Good Behaviour Order was imposed. I was provided, without objection or challenge to its contents, a Statement of Facts for the offence.
I was provided with a full range of the sentencing materials admitted for the earlier sentencing before Loukas-Karlsson J, from which I can assess the seriousness of the offences. Perhaps even more importantly, I can rely on what her Honour said in R v Collins (2018) at [4]-[8]:
4. On 13 December2017, the offender damaged the window of a motor vehicle belonging to Mr Gibbs that was parked at Parkes Place West with a co-offender, Paulkam Phavong, the co‑offender. This act constitutes count 1. From inside the vehicle he took the following items:
(a) a set of house and car keys with a GPO box key on a key chain;
(b)one ‘Status Anxiety’ branded wallet;
(c)a rose gold Samsung 8 phone, its case, an attachment to the back, and a clear screen cover;
(d) one red iPod Nano, and its case;
(e) one pair of bud earphones and one pair of wireless earphones;
(f) a pair of sunglasses;
(g) one ACT driver licence;
(h) one transaction card and one credit card;
(i) various membership, frequent flyer, health fund and transport cards;
(j) $80 cash;
(k) four cosmetic makeup items;
(l) a small torch;
(m) a hand mirror;
(n) a staff pass for a federal government department;
(o) one black USB stick.
5. …
6. The transaction card, owned by Ms Armstrong, was used for one unsuccessful transaction, followed by a successful transaction of $77 at a Caltex Service Station. These acts constituted Count 2.
7. The offender then went to Ms Armstrong's residence and took her car out of the unit complex garage. At the time, the offender's licence was disqualified. These acts constituted counts 4 and 6 respectively.
8. On 14 March 2018, the offender drove a Mazda belonging to Ms McGarry in the areas of Deakin, Garran, and Mawson. At this time, his licence was disqualified. These acts constituted Counts 3 and 7 respectively. Police gave the offender verbal directions to stop and get out of the car and deployed tyre deflation devices. The offender drove away at high speed along a footpath, which caused a pedestrian to take evasive action. These acts constituted Count 5.
In relation to the Magistrates Court matter, the Good Behaviour Order which the instant offences have breached has already been cancelled. I am not aware of any authority which suggests that this can be cancelled twice. Indeed, principle would suggest otherwise.
Nevertheless, it is important for me to briefly understand what the offences were, so as to assess how serious a breach of trust they constituted. The offences were, first, an offence of damaging property, which occurred when Mr Collins smashed the left rear door window, quarter panel window, and window seals on a motor vehicle parked in a driveway of a residence at Florey. The value of the damage caused was $2039.
The second offence was a minor theft, when Mr Collins entered a store in Waramanga and placed an item on the counter, asked for two packets of cigarettes, and then asked for the retail sales assistant to get another item, which caused his attention to be diverted. Mr Collins then picked up the cigarettes, worth $61.20, and left the store without paying for them.
The third matter was a series of offences. Mr Collins used a credit card that had been stolen earlier and made two unauthorised transactions at a convenience store for $86 and $66, respectively, for food and drinks and then cigarettes and more food. These were the two offences of obtaining property by deception.
He then drove away in a motor vehicle with number plates attached that had earlier been stolen from another motor vehicle. This was an offence of driving a motor vehicle with number plates attached which were issued to another vehicle.
Consideration
The Court which sentences an offender must determine the purpose for which a sentence is to be imposed. The purposes for which a sentence in this jurisdiction is to be imposed are set out in s 7 of the Sentencing Act and I will have regard to them.
The seriousness of the offences, as I have described them, and, in particular, the damage which Mr Collins has caused other people and the loss of property means that an element of punishment is required, though the versions of the offences were by no means the worst seen in these courts. Such a sentence will also denounce the conduct of Mr Collins. Further, they are offences that do disturb the community and others should be shown that such behaviour is unacceptable, so an element of general deterrence is also required in the sentence as this will also protect the community.
The protection of the community will also be effected by the rehabilitation of Mr Collins, as explained in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 536; [32], thus, rehabilitation must play some role in the purpose of punishment as constructed in the sentence.
There were victims of the offences that Mr Collins committed. The harm done to them must be recognised and I will ensure that the sentences show that recognition. I did not have Victim Impact Statements from any of the victims. That, of course, does not mean that the Court cannot know, in general terms, what effect an offence is likely to have on the victim of the offence. It does, of course, preclude the Court from knowing any particular, severe, or special harm.
Mr Collins has pleaded guilty to all these offences. The plea was entered at quite an early stage in the proceeding, that is, despite some adjournments, just a little more than a month from when he was first in court. Indeed, for the offence of intimidating an ACT public official, he entered a guilty plea on the day it was preferred. I consider that this requires the Court to give a significant discount on the sentence that would otherwise have been imposed.
As it was before any Prosecution Brief of Evidence had been prepared, also, it has a high utilitarian value. The Crown case was, however, a strong one, perhaps almost approaching overwhelming, though I am not sure that it reaches quite that level.
The entry of the pleas in these circumstances was also evidence of some remorse: see Fusimalohi v The Queen [2012] ACTCA 49 at [27]-[37]. Mr Collins did not, however, show a great deal of empathy for or insight into the plight of the victims of his offences, so the relevance of remorse is somewhat moderated.
Nevertheless, the expressions of his wish to engage in rehabilitation, to turn from his criminal behaviour, to start living a lifestyle that will enable him to be drug and crime free, to start participating in the community in a prosocial way, reconnect sensibly with his family that his drug use and frequent repeated incarceration has disrupted and create his own family is a good sign of the suitability for rehabilitation as a significant element in sentence.
It is necessary to be cautious about offenders who say that they are at a crossroads (R v Govinden [1999] NSWCCA 118 at [35]), but I do think that, in this case, it is more likely than not to be genuine and productive, though there are no guarantees. The confirmation by his parents and grandmother, who know him best, provide some support for this and lend confidence to that approach. I assess that he is presently genuine in his wish for reform.
I take into account the nature and circumstances of the offences, as I have described them, in setting out the facts and discussing the offences, the personal circumstances and antecedents of Mr Collins, as I have described them, and the harm done to the victims, as I can assess them.
I accept that he was under the influence of drugs at the time of his offending and that much of the motivation for his criminal behaviour, though perhaps not so much in these series of offences, was his need to fund his drug habit.
I take into account the fact that he was on conditional liberty at the time of his offending, though I note that he has been, in part, punished for that in the Magistrates Court; this was, however, also punishment for other offending which breached a separate order as well.
I note that there are multiple offences for which Mr Collins is to be sentenced. The Courts have addressed such issue by providing principles to be applied in this situation. They are summarised in O’Brien v The Queen [2015] ACTCA 47 at [26] and I will apply them.
Thus, I have carefully considered each sentence to ensure that it is separately imposed and is just, adequate and appropriate for the criminality represented by that offence.
Then, I have considered whether the sentences should be wholly or partly concurrent, or cumulative, because, for example, they contain common elements or address the same culpability. This is particularly so in this case as some of the aggravating features of some of the offences, such as the dishonestly driving of a motor vehicle without the owner's consent, which are also the subject of a separate offence and, thus, punishing Mr Collins twice needs to be avoided.
I have then reviewed the length of the total sentence to ensure that the principle of totality is respected and that the total sentence is adequate to reflect the total criminality of the offences committed, but not more than that, and that the total sentence is not excessive, but will leave open the realistic prospect of reform and hope for Mr Collins to achieve his stated goals when he returns to the community.
In order to do that, I have made some of the offences partly concurrent, but I must be careful to ensure that in doing so I leave no impression that there is a discount of impunity for multiple offending. Where the sentence for one offence cannot comprehend and reflect the criminality of another offence, the sentence must be at least partly cumulative.
This may result in a sentence that seems lenient, but it is important to have regard to all the principles to which I have referred.
In all the circumstances, however, I consider that nothing but a sentence of imprisonment must be made: s 10 of the Sentencing Act.
Sentence
His Honour then spoke directly to the accused.
Mr Collins, please stand.
I convict you of the first offence of dishonestly driving a motor vehicle without the owner's consent and sentence you to 13 months imprisonment, to commence on 1 May 2021. Had you not pleaded guilty, I would have sentenced you to 17 months imprisonment.
I convict you of the second offence of dishonestly driving a motor vehicle without the owner's consent and sentence you to 10 months imprisonment, to commence on 1 March 2022, that is to be cumulative as to seven months on the sentence for the first offence of dishonestly driving a motor vehicle without the owner's consent. Had you not pleaded guilty, I would have sentenced you to 13 months imprisonment.
I convict you of the first offence of driving whilst disqualified as a repeat offender and sentence you to 4 months and 15 days imprisonment, to commence on 14 October 2022, that is to be cumulative as to two months on the sentence for the second offence of dishonestly driving a motor vehicle without the consent of the owner. Had you not pleaded guilty, I would have sentenced you to six months imprisonment.
I note that there is an automatic licence disqualification of two years and I direct that is to commence on 1 January 2021, to be partially cumulative on the earlier disqualification that you are currently serving.
I convict you of the second offence of driving whilst disqualified as a repeat offender and sentence you to 4 months and 15 days imprisonment, to commence on 16 December 2022, that is to be cumulative as to two months on the first offence of driving whilst disqualified. Had you not pleaded guilty, I would have sentenced you to six months imprisonment.
I note further that there is an automatic licence disqualification of two years and I direct that is to commence on 1 January 2021, to be wholly concurrent on the earlier disqualification.
I convict you of damaging property and sentence you to two months imprisonment, to commence on 1 April 2023, that is to be cumulative as to one month on the sentence for the second offence of driving whilst disqualified. Had you not pleaded guilty, I would have sentenced you to three months imprisonment.
I convict you of driving dangerously as a repeat offender and sentence you to six months imprisonment, to commence on 31 March 2023, that is to be cumulative as to four months on the sentence for damaging property. Had you not pleaded guilty, I would have sentenced you to eight months imprisonment.
I direct that the automatic licence disqualification of 12 months to commence on 1 January 2022, that is to be wholly concurrent on the other disqualifications.
I convict you of failing to stop when requested by police and sentence you to two months' imprisonment, to commence on 1 September 2023, that is to be cumulative as to one month on the sentence for driving dangerously. Had you not pleaded guilty, I would have sentenced you to four months.
I note that attracts an automatic licence disqualification of three months and I direct that is to commence on 1 January 2020, that is to be wholly concurrent on the current disqualifications.
I convict you of common assault and sentence you to three months imprisonment, to commence on 1 September 2023, that is to be cumulative as to one month on the sentence for failing to stop. Had you not pleaded guilty, I would have sentenced you to four months imprisonment.
I convict you of intimidating an ACT public official and sentence you to one months imprisonment, to commence on 1 December 2023, that is to be cumulative as to one month on the sentence for common assault. Had you not pleaded guilty, I would have sentenced you to two months imprisonment.
I cancel the Good Behaviour Order made on 28 August 2018. I confirm the convictions for taking a motor vehicle without consent; obtaining property by deception; damaging property; driving whilst disqualified as a repeat offender; minor theft; driving a motor vehicle without consent; and aggravated dangerous driving.
I impose the sentence of 15 months and 3 days imprisonment, which was then suspended, to commence on 29 September 2023 and end on 31 December 2024, which is the end point of the sentences that I have imposed.
Mr Collins, you may be seated.
Having set out the terms of imprisonment that, in my view, are appropriate to the circumstances of the offences committed and Mr Collins' personal circumstances, I must now consider the request from Mr Collins that a Treatment Order be made. I note, in this regard, that both counsel supported, in their comprehensive and helpful submissions, that disposition. I must, nevertheless, consider myself whether it is appropriate.
I note that Mr Collins has been sentenced to imprisonment for 13 months for the offence of dishonestly driving a motor vehicle without the owner's consent and a total sentence of 44 months imprisonment for all the sentences I have imposed, which sentences are within the range of eligible sentences under s 12A of the Sentencing Act. I also note that he pleaded guilty to the offence of dishonestly driving a motor vehicle without the owner's consent and that he is not subject to any other sentencing order within the meaning of s 12A of the Sentencing Act.
I am satisfied that Mr Collins is likely to be resident in the ACT for at least the next four years, that he is dependent on illicit drugs, namely methamphetamine, and that his dependency substantially contributed to the commission of the offence of dishonestly driving a motor vehicle without the owner's consent.
I have had no information provided to me that suggests any victim has concerns about their safety or welfare and I have had regard to the matters set out in s 80O of the Sentencing Act.
Mr Collins has given consent to the making of a Treatment Order and I am satisfied that this was informed consent after the Treatment Order was explained to him and he had an opportunity to ask any questions about such an Order and those questions have been answered.
Accordingly, I am satisfied that Mr Collins is eligible to be subject to a Treatment Order.
I have carefully read the expertly and comprehensively prepared Suitability Assessments, described above (at [12]), and the Pre-Sentence Reports, variously tendered. They have been very helpful in assessing whether Mr Collins is suitable for a Treatment Order, whether he is ready to proceed to such intensive rehabilitation and what program is available and appropriate.
I note that both Suitability Assessments recommended that he is suitable for the making of a Treatment Order.
I have not identified any indicators of unsuitability for a Treatment Order as set out in Table 46K of the Sentencing Act.
I have received a comprehensive case plan prepared by Canberra Health Services which appears to be suitable for Mr Collins.
I note that he has been accepted into the Arcadia House Rehabilitation Centre program: as to which program see R v Spencer [2014] ACTSC 364 at [24]-[28] and R v Wilkins [2015] ACTSC 145 at [40]-[41].
Accordingly, I am satisfied that Mr Collins is suitable for a Treatment Order and that it is appropriate that one be made.
Finally, I note that although I have commenced the sentence of imprisonment on 1 May 2021, which period from that date to today has been served, and so the sentence of imprisonment will have to now be suspended, namely the sentence is partially suspended. This does not prevent Mr Collins from being subject to a Treatment Order for the reasons set out in R v Crawford (No 1) [2020] ACTSC 245 at [91]-[111].
Drug and Alcohol Treatment Order
His Honour then spoke directly to the accused again:
Mr Collins, please stand again.
I make a Drug and Alcohol Treatment Order under section 12A of the Crimes (Sentencing) Act 2005 (ACT) for you for 24 months from today in respect of the primary offence of dishonestly driving a motor vehicle without the owner's consent for which I have convicted and sentenced you.
I extend that Order to the offences of dishonestly driving a motor vehicle without the owner's consent, driving whilst disqualified on two occasions, damaging property, dangerous driving as a repeat offender, failing to stop, common assault and intimidating a public official, for which I have convicted and sentenced you, all of which are associated offences.
I note that I have recorded convictions for the primary offence and associated offences and imposed sentences, which convictions and sentences are hereby incorporated into the Drug and Alcohol Treatment Order as the custodial part of the Order.
I suspend the total sentence of three years and eight months imprisonment, being the total of the sentences for the primary offence and associated offences, under s 80W of the Crimes (Sentencing) Act2005 from today to 31 December 2024.
I require you 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 19 months and 13 days from 10 May 2023, with a probation condition that you accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the Good Behaviour Order, or such lesser period as the person supervising you considers appropriate, and obey all reasonable directions of that person as to counselling, treatment, and urinalysis.
For the treatment and supervision part of the Drug and Alcohol Treatment Order, you are required to:
(a)Comply with the core conditions of the order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) for the term of the Order and complete such case management and programs as may be required by the Treatment Order Team from time to time, or by the Court, including as to counselling, urinalysis, medical treatment, or such other treatment or programs as may be required from time to time;
(b)Admit yourself to the residential drug rehabilitation program at Arcadia House, Bruce, conducted by Directions Health Services by 12 noon today and not leave the program or the facility without the approval of the Court;
(c)Participate in the rehabilitation program of Arcadia House, obey all the rules of the program and obey all the reasonable directions of the officer in charge of the program and the facility;
(d)That, if you leave the program at Arcadia House or are discharged from that program before you complete it, you are to report to ACT Corrective Services by 4:00 pm on the next business day after your departure, with a view to having the Drug and Alcohol Treatment Order reviewed; and
I direct you to comply with any directions that the Court may make from time to time about attendance at Court, in person or by electronic means
I direct you to attend Court on 14 May 2021 at 12:30 pm.
Mr Collins, that is a long description of where we are at and where we are going. I have described the offences that you have committed, particularly in your circumstances where there has been continual offending, but only for a relatively short time, and breaches of Good Behaviour Orders and of supervision under those Good Behaviour Orders, as justifying a sentence of 44 months imprisonment effectively.
However, I have accepted, I hope not foolishly, that you are intent on putting all of this drug use and criminality behind you and, therefore, I have made a Treatment Order. That Treatment Order will be tough. It will require you to apply yourself. You have had some experience at One80TC, which did not seem to work very well, but in this case you will have, in addition, judicial supervision. You will have to come back and see me on Friday and then every Friday for some months down the track and tell me how things are going and, if things are not going well:
(a)we can try and fix them; and
(b)if they are able to be fixed, then we can fix them.
Given that I have assessed that you need residential rehabilitation, I have to warn you, and this is not a threat, this is just so that you understand the situation, if Arcadia House is not suitable for you there are probably few other alternatives available. There may be some, but there are probably few. Therefore, it may well be that there is no alternative but back to prison. So, you have really got to put your effort into this.
It will be hard from time to time. This is a relative longstanding dependency that you have got, and to manage that, get on top of it so that you are abstinent will take some time, but you will be subject to that dependency for a long time to come. As time passes, it will fade. It will be easier, but it will still be there and you have got to be careful about that.
It is going to be difficult because you will need to engage with prosocial peers, but you have got an extended family with whom you are close and with whom you need to reconnect. You are suitable for employment. You have got the capacity to do it. You have got some record for it. You can get into that and that will give you, later down the program, some prosocial contacts and hopefully you will get away from the drug using crowd and the offenders, the crime committers, that you have been dealing with.
It will be difficult because you do not have a driver licence, but it is possible. You may be able to get assistance. You can certainly use public transport and public transport is getting better and better in Canberra so you can use that. Your family might be able to help you from time to time. But these challenges, you need to overcome and overcoming them will make you stronger. That is really important.
The second thing that is really important is that you must be honest. First of all, you have got to be honest with yourself. Do not pretend that there were excused and explanations for what you did. You committed crimes. They are unacceptable in our community and there is no excuse for the. You have got to put that stuff behind you.
You have also got to accept that you are dependent on drugs. You have got to start interrogating your feelings so that you can get to understand them and use those positively so that you can deal with this matter. Honesty is really important, but not just with yourself, also with your counsellors and those who are assisting you.
The next important thing is not just to run away. When things get hard, there might be people there that you do not particularly like, a program might confront you and challenge you and you might find that difficult. If you run away then you will be in great strife.
If you leave or if you are discharged because you breached the rules - and learn what the rules are so you know when you are breaching them - if you are discharged when you breach the rules or if you run away, you have got to report to Corrective Services.
And if you do, that will be to your credit and will be taken into account. If you do not, then it is almost inevitable that you will have to then serve out the sentence that I have originally imposed.
If you are genuine about your rehabilitation, this is the place to come. This court will assist you. There are expert professionals who will assist you. We will try and make it as possible for you as can be, but most of it will of course depend on you. You will see me every week for a while, as I have said, and if there are problems, raise them with me. Do not hide them, do not let them stew, because that way disaster can happen.
I hope that you will take this with both hands and run with it.
You used to be good at sport. You may be able to overcome your disability which stopped that, I do not know what the physical disability is, but you could get back to that and that would be good. But there are plenty of things you can do in life and hopefully raising a family, being a useful member of the community, contributing through employment, will be one of those.
I wish you luck. I hope it works. And we will see more of you in future days. You may be seated.
| I certify that the preceding one-hundred and ninety-nine [199] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge. Associate: Date: 14 December 2021 |
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