R v Connors
[2022] ACTSC 374
•15 February 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Connors |
Citation: | [2022] ACTSC 374 |
Hearing Date: | 11 February 2022 |
DecisionDate: | 15 February 2022 |
Before: | Refshauge AJ |
Decision: | (1) Stanley Shane Connors be convicted of attempted aggravated robbery and sentenced to 31 months imprisonment to commence on 29 November 2021 and to end on 28 June 2024. (2) Stanley Shane Connors be convicted of riding a motor vehicle without the owner's consent on 6 January 2021 and sentenced to eight months imprisonment to commence on 29 January 2024 and end on 28 September 2024. (3) Stanley Shane Connors be convicted of driving a motor vehicle without the owner's consent on 5 October 2020 and sentenced to eight months imprisonment to commence on 30 May 2024 and end on 29 January 2025. (4) Stanley Shane Connors be convicted of driving whilst disqualified as a repeat offender and sentenced to five months imprisonment to commence on 1 October 2024 and end on 28 February 2025. On the drive whilst disqualified, there is an automatic disqualification of your licence for 24 months. (5) Stanley Shane Connors be convicted of riding in a motor vehicle without consent on 6 October 2020 and sentenced to eight months imprisonment to commence on 29 October 2024 and end on 28 June 2025. (6) Stanley Shane Connors be convicted of driving a motor vehicle without the owner's consent on 3 January 2021 and sentenced to nine months imprisonment to commence on 29 December 2024 and expire on 28 September 2025. (7) Stanley Shane Connors be convicted of driving whilst disqualified as a repeat offender and sentenced to five months imprisonment to commence on 29 May 2025 and expire on 28 October 2025. This offence also entails an automatic disqualification for 24 months, which the Court orders to be concurrent with the above disqualification for driving while disqualified as a repeat offender under s 69 of the Road Transport (General) Act 1999 (ACT). (8) Stanley Shane Connors be convicted of obtaining property by deception and sentenced to three months imprisonment commencing on 29 August 2025 and expiring on 28 November 2025. (9) Stanley Shane Connors be convicted of trespass and required to sign an undertaking to comply with the Good Behaviour Order obligations under the Crimes (Sentencing Administration) Act 2005 (ACT) for a period of three months from today. (10) The Court directs that a Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Stanley Shane Connors for two years from today, ending on 14 February 2024, in respect of the primary offence of attempted aggravated robbery of which he has been convicted and for which he has been sentenced to two years and seven months imprisonment. (11) That order be extended to the offences of dishonestly riding in a motor vehicle without the owner’s consent, dishonestly driving a motor vehicle without the owner’s consent, driving whilst disqualified as a repeat offender, dishonestly riding in a motor vehicle without the owner’s consent, dishonestly driving a motor vehicle without the owner’s consent, driving whilst disqualified as a repeat offender and obtaining property by deception of which he has been convicted and for which he has been sentenced and which are associated offences of the primary offence. (12) The convictions for the primary offence and the associated offences have been recorded and sentences have been imposed for each of them, which convictions and sentences are hereby incorporated into the Drug and Alcohol Treatment Order in the custodial part of the Order. (13) The custodial part of the Drug and Alcohol Treatment Order for the primary and associated offences be hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from 15 February 2022 to 28 November 2025. (14) Under s 80ZA of the Crimes (Sentencing) Act 2005, Stanley Shane Connors is required to sign an undertaking to comply with the offender’s Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Drug and Alcohol Treatment Order, 15 February 2024, until the end of the sentence, 28 November 2025, with a probation condition that he accept supervision by the Commissioner of ACT Corrective Services or his delegate, for the period of the undertaking or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him, including as to urinalysis, counselling and treatment. (15) For the treatment and supervision part of the Drug and Alcohol Treatment Order: a. the core conditions of the order set out in s 80Y of the Crimes (Sentencing) Act 2005 are hereby imposed; b. Stanley Shane Connors be released directly from the Alexander Maconochie Centre no later than 2:00 pm today, 15 February 2022, into the company of employees of Canberra Recovery Services to travel directly to its facility at Fyshwick and admit himself to the residential drug rehabilitation program at that facility; c. Stanley Shane Connors be directed to complete the residential drug rehabilitation program at Canberra Recovery Services, not to leave the facility until he has completed the program and to comply with all the directions of the person in charge of the program and all the rules of the program and the facility; d. Should Stanley Shane Connors leave or be discharged from the program before completing it, he is to report to ACT Corrective Services by 4:00 pm on the next business day with a view to having his Drug and Alcohol Treatment Order reviewed; e. Stanley Shane Connors is to further undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions about where he resides, with whom he associates and his attendance from time to time; and f. Stanley Shane Connors be directed to comply with any directions of the Court from time to time about attendance at Court in person or by electronic means. (16) Stanley Shane Connors be directed to appear by electronic means in Court on Friday 25 February 2022 at 12:30 pm. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Attempted aggravated robbery – Riding in a motor vehicle without the owner’s consent – Driving a motor vehicle without the owner’s consent – Driving while disqualified – Obtaining property by deception – Trespass – Subjective circumstances – Childhood disadvantage – Drug addiction – Sentence of imprisonment – Drug and Alcohol Treatment Order |
Legislation Cited: | Crimes (Sentencing Administration) Act 2005 (ACT) s 85 Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 12A, 33, 46J, 46K, 80W, 80Y, 80ZA Road Transport (General) Act 1999 (ACT) s 69 |
| Cases Cited: | Barbaro v The Queen [2014] HCA 2; 253 CLR 58 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Saga v Reid and Collett [2020] ACTSC 59 |
Parties: | ACT Director of Public Prosecutions (Crown) Stanley Shane Connors (Offender) |
Representation: | Counsel C Wanigaratne (Crown) D Turner (11 February 2022), J Cooper (15 February 2022) (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service NSW/ACT (Offender) | |
File Number: | SCC 284 of 2021 SCC 285 of 2021 |
REFSHAUGE AJ:
Introduction
1․The ACT Supreme Court established the Drug and Alcohol Sentencing List as a specialist list to administer each Drug and Alcohol Treatment Order (Treatment Order) that may be made as a sentencing option under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). See the description of that list and its genesis as set out in R v Antonovic (No 3) [2021] ACTSC 338 at [1]–[8]. See also R v Crawford (No 4) [2021] ACTSC 209 at [1]–[4] and R v Coleman (No 3) [2021] ACTSC 357 at [1]–[3].
2․Despite the research that shows that mandated treatment can work, a Treatment Order requires the offender to consent to the making of such an order: s 12A(2)(c) of the Sentencing Act.
3․That consent is often accompanied by expressions of a wish to reform by offenders and an expressed recognition of the need to do so. It is said, or appears, to be a turning point for the offenders who say how they want to move on from a life of drugs and crime. Offenders quite frequently point to the things, especially participation in family life, that this lifestyle has prevented them from enjoying and in which they have been unable to engage. They see the waste that the prison life has been.
4․These can, of course, be a very strong motivation for reform and the recognition of such loss is an important insight. Nevertheless, courts must be astute to appreciate that these are words and can be difficult to translate into action. Further, there is considerable motivation to participate in Treatment Order for it involves avoiding the immediate imprisonment, as the required imprisonment is a pre-condition for the making of a Treatment Order, but it is suspended: s 80W of the Sentencing Act. See R v Reid (No 1) [2021] ACTSC 334 at [1].
5․It is, therefore, necessary to be mindful of the caution well expressed by the New South Wales Court of Criminal Appeal in R v Govinden [1999] NSWCCA 118; 106 A Crim R 314 at 319; [35]:
Sentencing judges must be vigilant to ensure that they do not accept uncritically at face value all submissions to the effect that the person standing for sentence is “at the crossroads”, “has seen the error of his ways”, “is at a turning point in his life”, or “has excellent prospects of rehabilitation”. Often such submissions have no justification in fact and are based on no more than wishful thinking, but there are exceptional cases where such submissions do have validity and the court should be astute to recognise them.
6․See also R v Osenkowski (1982) 30 SASR 212 at 212–13. These principles have been accepted in this Territory: R v Avis [2013] ACTSC 294 at [10] and R v Murphy [2021] ACTSC 94 at [50]–[52].
7․This requires the Court to make a careful assessment of the offender's claims and assess whether there is a rational basis for such a claim. See Saga v Reid and Collett [2020] ACTSC 59 at [89]. Of course, such assessments, involving as they do a prediction, can be wrong. Thus, for example, see R v Kristiansen [2015] ACTSC 159; R v Kristiansen [2017] ACTSC 37 and R v Kristiansen [2017] ACTSC 292.
8․Stanley Shane Connors must now be sentenced for an offence of attempted aggravated robbery, two offences of dishonestly driving a motor vehicle without the owner's consent, two offences of dishonestly riding in a motor vehicle without the owner's consent, an offence of obtaining property by deception, two offences of driving a motor vehicle whilst disqualified, both as a repeat offender, and an offence of trespass, to all of which he has pleaded guilty. He sought that a Treatment Order be made.
9․On sentence, the Crown tendered without objection the Crown Tender Bundle. It contained the documents of committal and of transfer to this Court, as well as the Statement of Facts and the Criminal History of Mr Connors. In addition, it contained a table of 14 sentencing decisions said to be comparable. It also contained three Drug and Alcohol Treatment Assessments (Suitability Assessments) under s 46J of the Sentencing Act. These were the Drug and Alcohol Sentencing List Suitability Assessment dated 24 January 2022 of the Alcohol and Drug Service, together with a Case Plan, a Drug and Alcohol Treatment Assessment dated 31 January 2022 of ACT Corrective Services and a Drug and Alcohol Sentencing List Cultural Assessment dated 10 February 2022.
10․Mr D Turner, counsel for Mr Connors, tendered five documents. There was no objection to the admission of any of them. They were a detailed letter to the Court written by Mr Connors, a letter from Yeddung Mura dated 9 February 2022 and three certificates of achievement of courses completed by Mr Connors, namely: Harm Minimisation, Alcohol Drug Awareness (harm) Prevention Training and the Readiness Program, each one completed while Mr Connors was in custody on these charges.
11․There was no challenge to the contents of any of the documents tendered by the Crown or for Mr Connors.
12․Mr Turner also provided written submissions and both he and Mr C Wanigaratne, counsel for the Crown, made helpful oral submissions.
13․On the basis of this material, the Court makes the following findings.
The facts
14․On 5 October 2020, Mr Connors drove a Subaru Forester motor vehicle into the Coles Express service station at Dickson, ACT, at about 11:20 pm. He got out of the driver's seat and put fuel into the vehicle before returning to the driver's seat and driving away.
15․The motor vehicle had been stolen from a residence in Ainslie on 27 September 2020. Police had been notified.
16․At the time, also, Mr Connors was disqualified from holding or obtaining a driver licence as his had been disqualified for two years from 4 March 2020 when he had been convicted of dishonestly riding in a motor vehicle without the owner's consent. On 25 November 2021, he had been convicted of driving whilst disqualified.
17․The staff at the Dickson service station had, on 5 October 2020, called police to complain that Mr Connors was acting suspiciously and aggressively, though the evidence did not give details of this behaviour.
18․Police examined CCTV footage that had been taken at the time and identified Mr Connors and noted what he was wearing.
19․These facts were the basis for the first count of dishonestly driving a motor vehicle without the owner's consent and driving whilst disqualified as a repeat offender.
20․Early the next day, at 4:25 am on 6 October 2020, police in an unmarked police vehicle saw the stolen Subaru vehicle driving along Quick Street, Ainslie, ACT. Mr Connors was a passenger in the vehicle.
21․The vehicle drove into Ainslie Village and then made a U-turn and drove towards the police vehicle, forcing it to take evasive action. The police then activated the emergency lights and sirens of the vehicle to direct the Subaru vehicle to stop.
22․It did not do so and continued to drive into and down Limestone Avenue, Ainslie. Police did not pursue it.
23․Shortly afterwards, the Subaru vehicle was driven at speed on the incorrect side of a road when it was seen by a police officer in a fully marked vehicle at the intersection of Constitution Avenue and Anzac Parade in Campbell. Police activated the emergency lights and sirens of the vehicle and pursued the Subaru. It turned into Parkes Way. The Statement of Facts describes the driving as follows:
the silver Subaru driver's behaviour was very dangerous to other road users. The driver reached speeds of about 160km/ph, and the driver continually drove on the wrong side of the road and on greenbelts and between houses. The driver also operated the motor vehicle in an unsafe way by driving across median strips at speed, as well as driving through concrete barriers and through pedestrian footpaths.
24․The police pursued the vehicle, but lost sight of it in Kambah, ACT, and later it was found abandoned in that suburb. It had suffered significant damage.
25․Mr Connors left the vehicle and jumped over the fences of various residences, entering the back yards of them. In particular, one resident saw him entering her back yard. Mr Connors left identifying property in her back yard.
26․These were the facts used to found the first count of riding in a motor vehicle without consent and of trespass. The Statement of Facts is silent, but it appears that Mr Connors was, on 31 October 2020, arrested for the four offences committed in that month.
27․On 3 January 2021 at about midnight, a black Mercedes sedan was stolen from a residence in Conder, ACT. At about 1:55 am that morning, Mr Connors drove that vehicle into a service station in Kambah, his arrival and activities there being captured on the business’s CCTV. He had a female with him, who got out of the vehicle and refuelled it.
28․Mr Connors then purchased some cigarettes and a can of soft drink and together paid for that and the fuel with a debit card that had been stolen from the residence from which the motor vehicle was taken.
29․These were the facts upon which the police relied to charge him with the second count of dishonestly driving a motor vehicle without the owner's consent, the count of obtaining property by deception and the second of driving whilst disqualified as a repeat offender.
30․Two days later, on 5 January 2021, a Holden Commodore motor vehicle was stolen from an unspecified place in New South Wales.
31․The next day, at about 5:40 am, Mr Connors was a passenger in the Holden Commodore vehicle as it was driven into the Caltex service station at Calwell, ACT. At the same time, two acquaintances were in the service station in a white Mercedes motor vehicle owned by the driver of that vehicle.
32․Mr Connors noticed the acquaintances and went over to the Mercedes vehicle. He got into the vacant front passenger seat and began to speak in a friendly manner to the driver, who drove the vehicle around the corner. He then dropped Mr Connors off and went to drive to the driver's home.
33․Mr Connors followed them in the Holden Commodore motor vehicle, though there was no evidence that he was driving it. They drove “aimlessly around” to make sure that Mr Connors was, in fact, following them and then pulled over on Pennington Circuit, Calwell. Mr Connors stopped the Holden motor vehicle next to the Mercedes vehicle and got out. He got into the front passenger seat. He was holding in his hand a taser (as to which item, see R v Hancock [2021] ACTSC 52 at [17]).
34․He said to the driver, “Give me your car,” and pushed the prongs of the taser into his left shoulder, causing him pain and to feel physically sick. While this was happening, a co-offender left the Holden vehicle and came to the driver's door of the Mercedes motor vehicle. He tried to strike the driver with a crowbar and tried unsuccessfully to take the keys of the vehicle.
35․The driver got out of the car, taking the car keys with him, except that in his haste he had snapped off the key in the ignition so that the shaft of it remained in the key hole. Mr Connors briefly chased the driver, but returned to the Mercedes vehicle where the passenger was still in the rear passenger seat. He had seen what had happened.
36․The passenger said, “You don't want to do this I know who you are,” but Mr Connors activated the taser into the passenger's left arm, causing him immediate pain. The passenger tried to grab the taser, but Mr Connors again activated it into the passenger's open palm, causing him further pain. Mr Connors then struck him several times in the head with a closed fist, causing him further pain.
37․Mr Connors then called to his co-offender, who walked over to the Mercedes vehicle and struck the passenger with a crowbar he had with him. The passenger then appears to have got out of the car.
38․Both the passenger and driver then ran away and, while they were doing so, saw the co-offender smash the front and back windows of the Mercedes vehicle. The vehicle suffered a completely smashed back window and five large impact points in the front windscreen.
39․Police were contacted shortly after 6:00 am when the incident was reported. The driver was seen to have a cut on his right index finger, blood on his right palm and a small cut on his left shoulder at the back. The passenger had a small, 4 cm long, cut underneath his right breast and a small dark red welt on his left shoulder just above his armpit. He also had a shallow 5 cm long scratch to his right upper arm close to his shoulder.
40․These facts underlay the second charge of dishonestly riding in a motor vehicle without the owner's consent and attempted aggravated robbery.
41․Mr Connors was arrested in Banks, ACT, on 7 January 2021 and was remanded in custody.
The proceedings
42․As noted above (at [26]), Mr Connors was arrested on Saturday 31 October 2020 for the offences committed on 5 and 6 October 2020, after a warrant was issued for his arrest on 20 October 2020.
43․He appeared in the ACT Magistrates Court on that day, charged with dishonestly driving the Subaru motor vehicle without the owner's consent and was remanded in custody to the following Monday, when he was charged with the other three offences and the proceedings adjourned. He was granted bail, having been in custody for three days.
44․As also noted above, Mr Connors was further arrested on 7 January 2021 for the offences committed on 3 and 6 January 2021. He appeared in the ACT Magistrates Court the next day on 8 January 2021, charged with the offence of attempted aggravated robbery. He was remanded in custody to 2 February 2021, when the offences committed on 3 January 2021 were preferred and he was charged with them.
45․He remained in custody and, on 16 March 2021, was charged with the offence of dishonestly riding in the Holden motor vehicle without the owner's consent.
46․On 13 July 2021 he pleaded guilty to all the offences with which he had been charged and, on 25 November 2021, was committed to this Court for sentence for the indictable offences and the summary offences were transferred under s 90B of the Magistrates Court Act 1930 (ACT). He was directed to appear in the Drug and Alcohol Sentencing List on 3 December 2021. He remained in custody.
47․He appeared in this Court on that day and an Eligibility Assessment was ordered. He having been found suitable, Suitability Assessments were directed to be prepared and the matter listed for sentence. The sentencing hearing was later adjourned until 11 February 2022.
48․Mr Connors has been in custody now on remand for a total of 78 days for these offences. He has, of course, been in custody for much longer than that, but he was dealt with in the Magistrates Court on 25 November 2021 and was sentenced to a period of imprisonment, much of which was backdated, but which expired on 3 December 2021, after which he remained on remand for these offences.
The offences
49․It now falls to the Court to impose a just and adequate sentence on Mr Connors for these nine offences to which he has pleaded guilty.
50․Section 33 of the Sentencing Act prescribes matters that a court sentencing an offender must consider. The first in s 33(1)(a) are the nature and circumstances of the offence. This consideration has been started in the facts of the offending as they have been found. The nature of the offences must now be considered, which requires consideration of the maximum penalty, a matter which the High Court notes is essential. Then the Court must consider the matters that courts have identified over the years that aggravate or mitigate the actual version of the offence which Mr Connors has committed, to identify how they contribute to the final sentence.
51․The first offence is that of attempted aggravated robbery. That is to say, it was not an actual robbery because Mr Connors and his co-offender were not able, finally, to take the Mercedes motor vehicle from its driver and permanently deprive him of the vehicle. Under s 44(9) of the Criminal Code 2002 (ACT), a person who commits the offence of attempting to commit an offence, however, is punishable as if the offence attempted had been committed.
52․Thus, attempting to commit an aggravated robbery is made a crime by s 44(1) of the Criminal Code and, because this is the maximum penalty under s 310 of the Criminal Code, the offence of attempted aggravated robbery is punishable by a maximum penalty of imprisonment for 25 years or a fine of $400,000 or both. It is, thus, a very serious offence, the only more serious offences being those punishable by life imprisonment.
53․The courts have identified for this offence, which is one of both dishonesty and violence, a number of relevant matters. Except in the rare circumstances of legal justification, violence is never acceptable in a civilised society and, of course, creates harm, even if not actually serious physical harm, then usually serious mental harm for the victim. The dishonesty of the offences means the property of people, which they have sometimes worked hard to obtain for themselves, is lost, together with any sentimental value of the item, or items, and this often causes great inconvenience and distress. More widely, such loss affects the community for where the item or items are insured, the making of a claim has an effect on the premiums for all insured persons.
54․Here, of the matters that statutorily aggravate the offence of robbery, two are relevant, namely, that he committed the offence in company and that he had an offensive weapon with him, being the taser, and his offender had a crowbar.
55․The ACT Court of Appeal in Hall v The Queen; Barker v The Queen [2017] ACTCA 16 at [49] held that the factors set out by the New South Wales Court of Criminal Appeal in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at 380; [162] for a similar offence in that jurisdiction are, in this jurisdiction, persuasive, though not binding. That NSW decision describes what it called the “sufficiently common” form of the offence having the following features:
(1) Young offender with little or no criminal history;
(2) Weapon like a knife capable of killing or inflicting serious injury;
(3) Limited degree of planning;
(4) Limited, if any, actual violence but a real threat of it;
(5) Victim in a vulnerable position such as a shopkeeper or taxi driver;
(6) Small amount taken; and
(7) Plea of guilty.
56․Of course, items (1) and (7) are not part of the objective seriousness of the offence. The New South Wales Court of Criminal Appeal set a sentence guideline. The sentences that the courts in this jurisdiction have considered appropriate are lesser than the guideline, by both the first instance Court and the Court of Appeal: R v NF [2018] ACTSC 165 at [25].
57․In this case, weapons were used though they were, ordinarily, less likely to cause serious injury or death than, for example, a knife or a gun. Vulnerable people, however, have been killed by the application of a taser electrical shock and a bashing with a crowbar, especially on the head, could cause catastrophic injury or death.
58․There seems very limited planning in this offence, though Mr Connors would have had to source the taser, which seems likely to be difficult to do, though there was no explicit evidence of this. While a crowbar is relatively easy to access, but not the kind of tool commonly carried in a motor vehicle, it was, no doubt, not difficult to obtain one. No attempt was made by the offenders to hide their identity. Indeed, Mr Connors was personally known to the victims. Nevertheless, there was absolutely no evidence to suggest that the victims were lured to the service station and, to that extent, the offence was opportunistic.
59․The violence, however, was actual and caused pain. There is no evidence that the physical injuries were particularly serious or long-lasting and they do not seem to be so from the description. The described injuries were not particularly serious and did not, on the evidence, require any professional treatment. They were photographed by police, but those photographs were not in evidence. No specific evidence was given of the effect the incident had mentally on the victims, though it would have been a terrifying event.
60․As it was an attempted robbery only, the Mercedes vehicle was not taken. While this makes it less serious a version of the offence, account will be taken that the intended theft was of an expensive motor vehicle, a Mercedes, but with no evidence of how recent a model or the condition the car was in. It was damaged, but this is not an element of the offence and, indeed, is a separate offence not charged.
61․The victims were not in a particularly vulnerable position. They were not similar to those mentioned in R v Henry. All in all, subject to the two remaining matters, it was perhaps a less serious version of the offence, though with some serious factors that would modify that comparison.
62․The offences of dishonestly driving or riding in a motor vehicle without the owner's consent can be conveniently dealt with together, though each particular offence has its own circumstances which also affect its seriousness.
63․Such offences are both prohibited by s 318(2) of the Criminal Code and attract a maximum penalty of five years imprisonment or a fine of $80,000 or both. The serious nature of the offence is described in R v Crawford (No 1) [2020] ACTSC 245 at [38]. It is an offence that has attracted quite some consideration from the courts. The following factors have been identified:
(1)The offence of driving in the motor vehicle, as opposed to riding in it, is now generally agreed to be the more serious offence: R v Thompson [2017] ACTSC 141 at [18], R v Massey (No 1) [2020] ACTSC 256 at [56]. This is partly because the driver, unlike the passenger, has some control over the vehicle and so is a little like a receiver to the original taker who is a thief: R v Weldon [2021] ACTSC 348 at [48]–[50], R v Reid(No 1) at [25]–[26].
(2)For the driver, it is relevant whether the vehicle was recovered for the owner and whether it has been damaged: R v Lock [2016] ACTSC 319 at [13], [15]. If not recovered or if damaged, it is a more serious offence.
(3)Also for the driver, but to some extent for the passenger, the time the driver had the car and the distance travelled is relevant. The greater of either or both, the more serious: R v Massey (No 3) [2021] ACTSC 156 at [29], R v Po’oi [2021] ACTSC 151 at [69].
(4)The value of the vehicle is relevant: R v Po’oi at [69]. This, however, may be subject to a separate charge and, if so, questions of concurrency are relevant and, if not, the court must be mindful of the principles in R v De Simoni (1981) 147 CLR 383 at 389 (De Simoni principles) which permit the circumstances of aggravation to be taken into account unless it would have warranted a conviction for a more serious offence, and this may need to be considered.
(5)Again, for the driver, the manner of driving is relevant also subject to the De Simoni principles: Kelly v Ashby [2015] ACTSC 346; 73 MVR 360 at 370–1; [80]–[82].
(6)Whether the vehicle was used by the driver or passenger, or both, for the commission of another offence would make the offence more serious: R v Booth [2017] ACTSC 191 at [11].
(7)The value of the motor vehicle notably was relevant to the driver rather than the passenger: R v Weldon at [49].
64․The first case of driving was, on the evidence, not very brief. Unfortunately, there is not any further evidence, though, without apparently anyone else in the car, it is likely that Mr Connors had to travel some distance before, if he did, handing the vehicle over to anyone else.
65․He was seen, however, in the vehicle nearly five hours later, but in a nearby suburb. It is not clear how long he himself drove it.
66․For this offence, apart from the fact of driving whilst disqualified, there was no other offence committed. He did not, on this occasion, drive in an erratic manner or breach any road rules. The Court had no evidence of the value of the vehicle.
67․While the vehicle was later recovered, it was damaged, but that was after significant use when he was not driving.
68․This was not a very serious version of the offence.
69․The second offence was on 3 January 2021, when Mr Connors drove the stolen Mercedes into the service station. Again, there was no evidence of the distance of the driving, but, on this occasion, there was a passenger, so the length of driving by Mr Connors in distinction to the passenger is unclear. The motor vehicle was likely more valuable than the motor vehicle used for the other offence. It was used in connection with the second driving whilst disqualified offence and he paid for the fuel and other goods with a stolen credit card, but this did not aggravate the offence significantly. The offence was of a very similar seriousness to the first offence.
70․For the cases of dishonestly riding in the stolen motor vehicle, the first offence involved a fairly lengthy distance for the driving, from Ainslie to Kambah, though over a relatively short period of time.
71․As Mr Connors had driven the same motor vehicle a few hours prior to this occurrence, his culpability was perhaps a little greater than otherwise. The manner of driving was very bad, but he cannot be held responsible for that, without further evidence. The vehicle was not used in the commission of another offence.
72․In the second offence of him riding in a stolen vehicle, the length and time of the driving is quite uncertain, and the evidence before the Court was limited. The vehicle was used in the commission of the most serious offence and, to some extent, facilitated it, so this was a somewhat more serious offence.
73․Obtaining property by deception is an offence against s 326 of the Criminal Code, which prescribes a maximum penalty of 10 years imprisonment or a fine of $160,000 or both. Thus, it is a serious offence, but it can be committed in a very large variety of ways, which can properly attract from a very modest penalty to a very severe one.
74․The major factor that determines this is the value of the property involved. Here, it was fairly modest, less than $100 worth of petrol. The general circumstances are also relevant, but here, where there is no evidence of Mr Connors stealing the card and no other factors of aggravation in its use, it was a moderately serious offence. The risk of misuse of such cards, however, has increased significantly with the ubiquity of “tap and pay”, meaning that courts must use the tools they have to deter others from committing such offences.
75․Driving whilst disqualified is contrary to s 32(1)(a) of the Road Traffic (Driver Licensing) Act 1999 (ACT) for which, as a repeat offender, a maximum penalty of 12 months imprisonment or a fine of $16,000 is provided. There is also an automatic disqualification from holding or obtaining a driver licence for 24 months or such longer period as the Court may order. Such disqualifications are, under s 69 of the Road Transport (General) Act 1999 (ACT), cumulative unless the Court otherwise orders.
76․This offence is an important part of the regulation of Territory roads and does contribute to keeping them safe. The vehicles which drive on them can, if misused, be very dangerous and cause serious injury or death, as well as significant property damage.
77․In Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299, especially at 306–8; [33]–[42] the Court gave very careful consideration to the offence.
78․In the first place, Mr Connors has been found guilty of nine prior offences of this offence or cognate offences such as driving unlicensed.
79․The disqualification to which this relates was imposed on 4 March 2020. The offences were therefore committed neither reasonably soon after the disqualification was made or nearly at the end of that disqualification, though a further disqualification from driving was incurred for which he was sentenced in the Magistrates Court in November 2021.
80․Given this background, it has some elements that suggest it was contumacious. There was no justification for the driving. As noted above, the driving was not of a significant distance, nor did it have any special relevant poor driving. There were no other matters of aggravation.
81․Finally, trespass is an offence against s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth) which sets a maximum penalty of $1,600.
82․In this case, it appears that Mr Connors made a relatively limited intrusion into residential premises, none of which was inside and, while he left some items that could identify him, there was no evidence to suggest other than that he used it for transit. There did not seem to be any other purpose and, in particular, no inappropriate purpose other than the illegal entry which was apparent on the evidence.
Subjective circumstances
83․As well as the nature and circumstances of the offence, it is necessary to consider the situation of the offender (R v Kilic [2016] HCA 48; 259 CLR 256 at 266; [19]) which is a highly relevant factor to produce a just and adequate sentence.
84․The factors in s 33(1) of the Sentencing Act include a number of relevant such factors, although the list is not exhaustive (s 33(3) of the Sentencing Act) and other relevant matters may be considered. The subjective circumstances of Mr Connors must now be considered.
85․Mr Connors was born 27 years ago in Yass, New South Wales, the second of his parents’ six children, though his biological father left the family before his birth.
86․The family moved to Canberra when he was an infant. His mother re-partnered before Mr Connors was born, but his step-father was physically abusive to Mr Connors’ mother and he witnessed much domestic violence. His brother and he were regularly “flogged” by his step-father.
87․Mr Connors is of Ngunnawal and Tongan heritage through his mother and he is proud of this. He has a strong, long-standing interest in his culture. Mr Connors has strong ties with his land and has contacts with a wide family network in Canberra. Thus, when, as he did, he frequently ran away from home to escape the violence, he would often stay with his aunt and his grandmother, which began when he was about 11 years old.
88․His stepfather also used cannabis, though he tried to hide it by smoking in the “back shed”.
89․Mr Connors was considered a bit of a troublesome child at school, but he says that it was “hard to be good during the day when there was all that going on at home,” namely the family violence. He often got into fights.
90․He was finally expelled, aged 12, in Year 7 and he did not return to school. He has, however, completed study to get his White Card and Asbestos Card.
91․When he was 10 years old, he reconnected with his father and developed a strong and valuable relationship with him. He even moved, at age 18, to Wagga Wagga to live closer to him.
92․He has, however, experienced significant loss in the last few years which has left him very troubled and feeling much grief. His cousin, with whom he was so close that he called him his brother, took his own life four years ago. Most traumatically, his father died in in terrible circumstances in 2020. This left him so upset that he was unable to cope and made two attempts on his own life in the months afterwards. His grief continues to impact him.
93․Then, last year, a best friend died after an accidental overdose, adding significantly to his grief.
94․He had a significant relationship, which resulted in the birth of a son who is now almost three years old. The relationship, however, broke down and he has experienced great difficulties in having access to his son. Access is currently managed through Court orders though, for a while, this was limited and this caused a serious escalation of his grieving and distress, pushing him further to the use of illicit drugs, further limiting the access.
95․Because of the absence of a relationship with his father for so long, he is determined to address his problem so that access is improved with his son. This is his “most important goal”. He has no current relationship and is not presently seeking one.
96․Mr Connors has had one job, building roof trusses, but the employment ended after three months when he was incarcerated.
97․Mr Connors has no physical ailments, though he experienced a broken ankle as a teenager. He has no current diagnosis of severe mental illness, though he has a historical diagnosis of borderline personality disorder and depression. He also has experienced drug-induced psychosis.
98․Mr Connors first drank alcohol when he was 14 years old and he has consumed alcohol many times since then, though he claims it is “not my thing” and has not touched it for over a year.
99․He first smoked tobacco when he was 13 years old and consumed a packet every five days. Though he has tried to give it up, he comes out in rashes when he does so, and so he is not planning to reduce his consumption.
100․Of the illicit drugs, he first used methamphetamine at the early age of 12 years old and by the age of 16 to 18, he was injecting an eight ball a day. An eight ball is an eighth of an ounce, that is 3.5 grams. He was using this amount prior to his offending and has used early in his incarceration, being detected by urinalysis showing positive to it and to other drugs, but none recently.
101․He first used cannabis when he was 13 years old, gradually increasing up to one ounce a day, but he ceased using it four years ago, though he admits he has still used it occasionally.
102․He has used MDMA/Ecstasy, but sporadically, some non-prescribed medications, and heroin about five times in his life; again, it is “not my thing,” he says.
103․He has, however, had a major problem with gambling and this is a significant risk factor. He has been gambling since he was about 16 years old.
104․He is currently prescribed Buvidal as pharmacotherapy.
105․Over the years he has engaged in treatment for alcohol and drug use, both residential rehabilitation and counselling.
106․At 14 years old he completed the Ted Noffs Foundation residential drug rehabilitation. Later, at age 23, he entered Oolong House (as to which agency, see R v Williams [2015] ACTSC 15 at [8]–[10]). He left, however, before completing the program. During 2021, while in custody, he engaged with Directions Health Services for both counselling and programs online, including the SMART Recovery program.
107․Mr Connors has a shocking criminal record, though not the worst to come through this Court. In all, he has 73 offences on his record, [redacted for legal reasons].
108․As an adult, the most common offence on his record is dishonestly riding or driving a motor vehicle without the owner's consent. He has also two convictions for dangerous driving, two for damaging property and three for obstructing a territory official, almost certainly police officers.
109․He has previously committed offences of the kind for which he has pleaded guilty and for which he must be sentenced. Many of the offences are generally of the same kind or less serious than the current offences, [redacted for legal reasons].
110․While in custody, he has been the subject of 11 formal disciplinary actions of which six are for unauthorised smoking. He has also been subject to Good Behaviour Orders, Parole Orders and numerous Bail Orders. He failed to complete two of the three Parole Orders without them being cancelled, though the most recent one was completed. He has, however, breached his two Good Behaviour Orders.
111․Mr Connors wrote me a detailed letter. It was written also to the elders which is likely to mean that the contents are most probably true and genuine.
112․He accepted responsibility for the choices he had made to use drugs and commit crimes, though he explained some of the motivation which can be understood, if not accepted. His use of drugs is central, though the grief and childhood experiences do loom large. He acknowledges that “my mother raised me better”. He expresses insight into his offending and pointed to the very strong motivation of greater involvement with his son for rehabilitation. He was especially conscious of his experience with his absent father and violent stepfather and wished to ensure that his son received better parenting.
113․Mr Connors was cooperative with the authors of the Suitability Assessments. He will, if released, live with his mother who has consented to this and that residence has been assessed as suitable for someone subject to a Treatment Order.
Current sentencing practice
114․Another factor required to be considered under s 33(1) of the Sentencing Act is current sentencing practice: s 33(1)(za). As noted above (at [49]–[82]), some of this has already been considered in the factors that identify the seriousness of the offences.
115․In addition, it is important to see how cases are usually being decided, thus comparable cases are relevant: Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at 73; [38].
116․Despite its significant limitations, the statistics in the ACT Sentencing Database can be of some assistance: R v Horne [2017] ACTSC 36 at [49]–[53].
117․In R v Lovelock [2014] ACTSC 229 at [13], Murrell CJ noted that the current practice in the ACT Supreme Court is that a common sentence for the offence of aggravated robbery is three years imprisonment. That is, of course, not a mandatory sentence, nor does it set bounds.
118․The Crown produced a table of 14 sentences for attempted aggravated robbery or aggravated robbery. This is like the Sentencing Database, but it does have a summary of more of the relevant factors than the Database and sets out the citations so that the sentencing remarks can be accessed. I regret that I was not able to read them all. The sentences ranged from seven years and two months to six months imprisonment. Two were for three years and one was for three years and four months.
119․In R v Lovelock [2020] ACTSC 376, the Court considered a number of relevant cases and they have been taken into account as has the discussion there for the purposes of these proceedings.
120․As to the offence of dishonestly driving a motor vehicle without the owner's consent, it was considered it in some depth in R v Massey (No 1) where the Court said:
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 per cent of offenders were sentenced to imprisonment in the Supreme Court, of which 74.5 per cent were required to spend at least some of that in actual custody. Of these latter, 46.5 per cent were sentenced to up to six months' imprisonment and 32.5 per cent were sentenced to seven to 12 months' imprisonment. The maximum sentence was of two years and eight months' imprisonment.
77. There seems to have been a reduction in the length of sentences more recently. Thus, in R v Taylor [2015] ACTSC 122 at [26], the offence was described as:
… a typical offence of its nature and, in itself, is of no great objective seriousness, particularly as the vehicle was recovered undamaged shortly afterwards.
Mr Taylor, however, was sentenced to 15 months' imprisonment, reduced from 18 months for his plea of guilty.
78. More recently, however, the general approach seems to have been to impose a sentence of six months' imprisonment. The analysis is complicated because many of the sentences are associated with much more serious offences, such as aggravated robbery, or burglary, or aggravated burglary.
79. In the suggested comparable sentence, to which I was referred, R v Norton [2019] ACTSC 111, however, the only offences for which Mr Norton was to be sentenced were those of dishonestly driving a motor vehicle without consent and driving whilst unlicensed, for the former of which he was sentenced to six months' imprisonment, reduced from eight months for his plea of guilty. He had a prior criminal record, including many traffic offences which were described at [6] as 'technical driving offences'. To fully understand the term, I sought a copy of Mr Norton's criminal history, and neither party objected to me receiving it. A perusal of that shows that the offences which were, with respect, properly so described, being offences such as using an unregistered vehicle, using an uninsured vehicle, being an unlicensed driver, driving an unsafely maintained vehicle, and the like.
121․The other offence which requires comment is driving whilst disqualified. On that offence, it was said in R v Massey (No 1):
80. As to the offence of driving while disqualified from holding or obtaining a license, an offence much more commonly dealt with in the Magistrates Court where the database does not unfortunately link to any sentencing remarks, I only have the raw statistics. These show that approximately a quarter of offenders are sentenced each to a fine, to a partially or wholly suspended term of imprisonment, to a term of imprisonment to be fully served by custody or to a good behaviour order. The majority of terms of imprisonment are for 3 months, ranging up to two sentences of 11 months.
Consideration
122․The task of the sentencing judge is to determine the just and adequate sentence to be imposed on the offender, which instinctively synthesises all the relevant factors that must be taken into account. To do that properly, it is important to have a clear view of the purpose or purposes for which the sentence is to be imposed.
123․This is made much easier in this Territory, for the legislature has set out the purposes of punishment over which there has, in the past, been intense philosophical debate. Thus, s 7 of the Sentencing Act sets out those purposes and the Court has regard to them.
124․Aggravated robbery is a very serious offence which, as noted above (at [53]), has both elements of violence and dishonesty. Thus, punishment, which is the consequence of the breach of the norms of civilised society, must be adequate as a measure of the need to show the importance of that response to that offence and so be shown in the sentence. This will also denounce the conduct of the crime committed.
125․Similarly, others who might be motivated to behave in such a way need to be discouraged by the sentence that awaits them and so prevention by deterring others is also important.
126․Mr Connors himself needs to be deterred by showing that he cannot continue to breach the criminal laws of the community as he has done. If he can be rehabilitated, also a proper purpose, that will further protect the community and deliver other benefits.
127․Nevertheless, he must still be held accountable for his actions and the victims must be shown that the harm they have suffered is clearly recognised.
128․All this is intended to protect the community, especially from Mr Connors.
129․Accordingly, in order to address these purposes, the Court takes into account all the matters that have been earlier addressed in these reasons: the nature and circumstances of the offences, the situation of Mr Connors personally and current sentencing practice. The Court will also take into account the following matters.
130․Mr Connors pleaded guilty. While it was on the 17th mention, it is relevant that the last charge preferred was only before the Court first on 16 March 2021, that is on the occasion of the ninth mention. It was also on that date that the prosecution's Brief of Evidence was produced. That encouraged the lawyers for Mr Connors to make representations. The material before me does not show the result, if any, of those representations, although the Court numbers suggest that there may be some other offences that have not progressed.
131․Nevertheless, there were then four mentions before the pleas of guilty were actually entered. While the defendant has a right to a delivery of a Brief of Evidence to see what evidence he or she is facing, that does not mean that the utilitarian value of the plea has not been diluted by that. Clearly, a plea before then will save much.
132․Nevertheless, it is fair to say that the raw numbers of mentions do not tell the whole story. Mr Connors would have to be committed to this Court for sentence. In that sense, it was a reasonably early plea. The case against him was quite strong given the evidence that was available, but nevertheless, it is satisfactorily shown that the plea still attracts a significant discount.
133․It needs also to be noted that Mr Connors had a very disadvantaged upbringing. He experienced family violence being perpetrated against his mother. He experienced physical abuse himself. He was exposed to drug use by a stepfather at an early age. All this led to a seriously disrupted school life and a degree of instability in his home life where he left home frequently.
134․As noted in cases such as R v Fernando (1992) 76 A Crim R 58 and Director of Public Prosecutions (Vic) v Terrick [2009] VSCA 220; 24 VR 457 at 468–9; [46], these matters are identified as needing proper consideration when the Court considers the circumstances of disadvantage or deprivation of the kind suffered by Mr Connors.
135․These principles have been crystalised in the seminal decision of the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 592–5; [37]–[45] where the Court accepted that a deprived childhood may mitigate a sentence for the offender, but also made it clear that the effect of such disadvantage does not diminish over time. In this case, the Court is satisfied from the evidence received that the childhood disadvantage suffered by Mr Connors should ameliorate the sentence to be imposed on him. Neither counsel made any contrary submissions.
136․Nevertheless, Mr Connors bears responsibility for his own conduct and for his poorly made decisions, but he has partly done that, as he expressed in his letter, in which he clearly accepted responsibility and earnestly seeks help to address his problems.
137․Rather similarly, the early introduction by Mr Connors to drug use, which easily leads to dependency, was at a time before Mr Connors could make an informed choice. This will also mitigate sentence: see Douglas v The Queen (1995) 56 FCR 465 at 470 and R v Henry at 397–8; [273].
138․Mr Connors has expressed genuine remorse and, though the apology to the victims is perhaps not as ample as it should be, it is genuine and Mr Connors shows insight, and the circumstances gives some comfort to that.
139․Mr Connors has been in rehabilitation before. It has not prevented relapse. That is not an unusual phenomenon. See Saga v Reid and Collett at [89]. He has taken steps since being remanded in custody and the motivation he expresses is based on the need to parent his son, which is likely to be a strong one. This is likely to be a time when he is ready for rehabilitation.
140․It is important that he will continue with his connection to his cultural heritage. In this context he is presently supported by Yeddung Mura Aboriginal Corporation. It is a “grassroots organisation” that works directly in the community to meet the needs of Aboriginal people with wide-ranging programs from Throughcare, crisis support, a drop-in centre, a Yarning Circle and career support. Continuing contact with this organisation is highly desirable for the recovery and rehabilitation of Mr Connors. The proposal is that he have the opportunity, once he has completed the program at Canberra Recovery Services which has been recommended in his Case Plan, to participate in the Ngunnawal Bush Healing Farm conducted by ACT Health Directorate as a therapeutic community for Aboriginal and Torres Strait Islander people using traditional healing concepts, cultural programs and life skills training and which is quite likely to help them tackle underlying social and emotional issues.
141․Nevertheless, taking all these matters into account and having considered all the relevant alternatives, no other sentence than a sentence of imprisonment is appropriate and should be imposed: s 10 of the Sentencing Act.
142․There are, of course, nine offences. The Court must impose a sentence on each and the length of each sentence has been carefully considered to ensure that it is just and adequate and also to ensure that Mr Connors is not punished twice.
143․The Court has also considered whether the sentences should be partly or wholly concurrent because, for example, they are part of the same course of conduct or contain common elements. This is relevant here for the second charge of riding in a motor vehicle without consent and the attempted aggravated robbery were committed while Mr Connors was in the same stolen car. It was all part of the same course of conduct.
144․The Court has then considered the length of the total term of the sentence arrived at to ensure that the principle of totality is respected. This is also particularly relevant here, for Mr Connors has now been in custody continuously for a very lengthy term, though some of it was serving other sentences.
145․The total sentence must adequately reflect the criminality of the offences committed, but no more than that, and the total sentence must not be excessive but leave open the realistic prospect of reform and maintain for Mr Connors the hope for him to take an effective part in the community, to celebrate his son being properly parented and to realise his aims when he is released.
146․This may result in what is seen as some leniency, in that some sentences are made concurrent but, while the total criminality of Mr Connors is an important factor, his successful rehabilitation is also important as is the circumstances of his introduction to drug use. Thus, it requires a sentence proportionate to his culpability for the crimes and the effect on the community, but also Mr Connors’ subjective circumstances, including especially his childhood disadvantage and the value of reform to both the community and to himself.
Sentence
[His Honour then spoke directly to the offender]
147․Mr Connors, please stand.
148․The Court orders as follows:
(1)You are convicted of attempted aggravated robbery and sentenced to 31 months imprisonment to commence on 29 November 2021 and to end on 28 June 2024. Had you not pleaded guilty, you would have been sentenced to 37 months imprisonment.
(2)You are convicted of riding a motor vehicle without the owner's consent on 6 January 2021 and sentenced to eight months imprisonment to commence on 29 January 2024 and end on 28 September 2024. That is to be cumulative as to three months on the offence of attempted aggravated robbery. Had you not pleaded guilty, you would have been sentenced to nine months imprisonment.
(3)You are convicted of driving a motor vehicle without the owner's consent on 5 October 2020 and sentenced to eight months imprisonment to commence on 30 May 2024 and end on 29 January 2025. That is cumulative as to four months and one day on the sentence for riding in a motor vehicle without consent.
(4)You are convicted of driving whilst disqualified as a repeat offender and sentenced to five months imprisonment to commence on 1 October 2024 and end on 28 February 2025. That is cumulative as to 30 days on the driving a motor vehicle without consent on 5 October 2020. Had you not pleaded guilty, you would have been sentenced to six months imprisonment. On the drive whilst disqualified, there is an automatic disqualification of your licence for 24 months.
(5)You are convicted of riding in a motor vehicle without consent on 6 October 2020 and sentenced to eight months imprisonment to commence on 29 October 2024 and end on 28 June 2025. That is to be cumulative as to four months on the sentence for driving whilst disqualified. Had you not pleaded guilty, you would have been sentenced to nine months imprisonment.
(6)You are convicted of driving a motor vehicle without the owner's consent on 3 January 2021 and sentenced to nine months imprisonment to commence on 29 December 2024 and expire on 28 September 2025. That is to be cumulative as to three months on the sentence for the offence of ride in a motor vehicle without consent. Had you not pleaded guilty, you would have been sentenced to 10 months imprisonment.
(7)You are convicted of driving whilst disqualified as a repeat offender and sentenced to five months imprisonment to commence on 29 May 2025 and expire on 28 October 2025. That is to be cumulative as to one month on the sentence for driving a motor vehicle without consent on 3 January 2021. Had you not pleaded guilty, you would have been sentenced to six months imprisonment. This offence also entails an automatic disqualification for 24 months, which the Court orders to be concurrent with the above disqualification for driving while disqualified as a repeat offender under s 69 of the Road Transport (General) Act 1999 (ACT).
(8)You are convicted of obtaining property by deception and sentenced to three months imprisonment commencing on 29 August 2025 and expiring on 28 November 2025. That is to be cumulative as to one month on the sentence of driving whilst disqualified. Had you not pleaded guilty, you would have been sentenced to four months imprisonment.
(9)You are convicted of trespass and required to sign an undertaking to comply with the Good Behaviour Order obligations under the Crimes (Sentencing Administration) Act 2005 (ACT) for a period of three months from today.
149․Mr Connors, please be seated.
Drug and Alcohol Treatment Order application
150․Mr Connors has made a request that he be able to address the issues that have facilitated his offending, especially his long-standing drug use, to which the Court now turns.
151․Thus, consideration will now be given as to whether a Treatment Order should be made. In the first place, the Court must consider whether Mr Connors is eligible. That requires consideration of the requirements set out in s 12A of the Sentencing Act.
152․On his pleas of guilty, Mr Connors has been sentenced to two years and seven months imprisonment for the offence of attempted aggravated burglary, though all the offences for which he has been sentenced to a term of imprisonment amount to a sentence of a total of four years imprisonment. These terms meet the first requirement for eligibility, being a term for the primary offence, the offence of attempted aggravated robbery, of more than 12 months imprisonment and a total term, including that for all offences, of four years or less. The offences for which he has been sentenced to imprisonment are eligible offences.
153․Mr Connors is not subject to any other sentencing order within the meaning of s 12A of the Sentencing Act.
154․The unchallenged Suitability Assessments described his long and serious drug dependency. That of the Alcohol and Drug Service assessed him as being likely to have a severe substance dependency, especially on methamphetamine at the time of his offending. Assessed as honest when being assessed, as well as compliant and engaged, he reported that his use exacerbated his offending. This is consistent with the other Suitability Assessments. None were challenged, from which it can readily be found on the balance of probabilities that he is dependent on illicit drugs, especially methamphetamine, which contributed substantially to his offending.
155․Mr Connors is now based in Canberra, especially since his father died, and has support from his mother and his wide family network. It is his mother's residence where he proposes to live and it has been assessed as suitable for one subject to a Treatment Order, though the recommendation is that he first undertake residential drug rehabilitation. There is a place available for his admission at a facility for such rehabilitation in Canberra. It is satisfactorily shown that he will remain in Canberra for the next four years at least.
156․Mr Connors has given the required informed consent to the making of a Treatment Order. He has signed the relevant consent form which shows that he has had such an Order explained to him in clear terms and that he has had a chance to make a balanced judgment about whether to consent or not. He has also had the opportunity to ask any questions about the Order and his obligations under it and has had any questions answered.
157․Mr Connors is, accordingly, eligible for a Treatment Order to be made. The next question is whether he is suitable for such an order.
158․For that purpose, the comprehensive and expertly prepared Suitability Assessments have been carefully considered. All of them recommend that he is suitable and set out in detail the facts on which this recommendation is based.
159․Neither counsel opposed the making of the Order. Further, the Court is not aware of any indications of unsuitability set out in Table 46K of the Sentencing Act that need to be addressed.
160․The Court has also received a comprehensive Case Plan prepared by the Alcohol and Drug Service, which is consistent with that recommended by ACT Corrective Services. It is an appropriate and adequate Case Plan to address his issues, although it will be necessary to address issues not merely in relation to drugs.
161․The sentence imposed on Mr Connors commenced prior to today and the Court must fully suspend any sentence of imprisonment for a Treatment Order, which can only commence from today. For the reasons set out in R v Crawford (No 1) at [91]–[111], this does not prevent a Treatment Order being made.
Drug and Alcohol Treatment Order
[His Honour then spoke directly to the offender]
162․Mr Connors, please stand again.
163․The Court orders as follows:
(10)The Court directs that a Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for you for two years from today, ending on 14 February 2024, in respect of the primary offence of attempted aggravated robbery of which you have been convicted and for which you have been sentenced to two years and seven months imprisonment.
(11)That order be extended to the offences of dishonestly riding in a motor vehicle without the owner’s consent, dishonestly driving a motor vehicle without the owner’s consent, driving whilst disqualified as a repeat offender, dishonestly riding in a motor vehicle without the owner’s consent, dishonestly driving a motor vehicle without the owner’s consent, driving whilst disqualified as a repeat offender and obtaining property by deception of which you have been convicted and for which you have been sentenced and which are associated offences of the primary offence.
(12)The convictions for the primary offence and the associated offences have been recorded and sentences have been imposed for each of them, which convictions and sentences are hereby incorporated into the Drug and Alcohol Treatment Order in the custodial part of the Order.
(13)The custodial part of the Drug and Alcohol Treatment Order for the primary and associated offences be hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from 15 February 2022 to 28 November 2025.
(14)Under s 80ZA of the Crimes (Sentencing) Act 2005 you are required to sign an undertaking to comply with the offenders Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Drug and Alcohol Treatment Order, 15 February 2024, until the end of the sentence, 28 November 2025, with a probation condition that you accept supervision by the Commissioner of ACT Corrective Services, or his delegate, for the period of the undertaking or such lesser period as the person supervising you considers appropriate and obey all reasonable directions of the person supervising you, including as to urinalysis, counselling and treatment.
(15)For the treatment and supervision part of the Drug and Alcohol Treatment Order:
(a) the core conditions of the order set out in s 80Y of the Crimes (Sentencing) Act 2005 are hereby imposed;
(b) You are to be released directly from the Alexander Maconochie Centre no later than 2:00 pm today, 15 February 2022, into the company of employees of Canberra Recovery Services to travel directly to its facility at Fyshwick and admit yourself to the residential drug rehabilitation program at that facility;
(c) You are directed to complete the residential drug rehabilitation program at Canberra Recovery Services, not to leave the facility until you have completed the program and to comply with all the directions of the person in charge of the program and all the rules of the program and the facility;
(d) Should you leave or be discharged from the program before completing it, you are to report to ACT Corrective Services by 4:00 pm on the next business day with a view to having your Drug and Alcohol Treatment Order reviewed;
(e) You are to further undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where you reside, with whom you associate and your attendance from time to time; and
(f) You are directed to comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.
(16)You are directed to appear by electronic means in Court on Friday 25 February 2022 at 12:30 pm.
164․Mr Connors, I have sentenced you, in effect, to four years imprisonment for what was a pretty bad spree of offending, but over a long period of time. I have then made a Drug and Alcohol Treatment Order. That has been explained to you.
165․That includes periods of intense therapeutic treatment, in effect, but also speaking to case managers, doing urinalysis and attending other programs including group programs and so on. It also sets out some conditions that you must abide by, such as not committing further offences, staying within the ACT unless you have got permission not to, obeying any directions of the Court, obeying any direction of the Treatment Order Team and so on.
166․You are also to undergo that treatment at Canberra Recovery Services and that treatment will require your attendance there and participation in it, but also attendance in Court to see how you are going. You can raise any things that you want to in Court. If you leave the program, and I am not suggesting you should at any time before it is complete, you must report to Corrective Services prior to 4:00 pm the next day after you have left. You can report on the same day, but it must be before 4:00 pm the next day.
167․You have also got to comply with any directions that the Treatment Order Team give you about programs or treatment, counselling, urinalysis or case management.
168․I require you to appear in Court on Friday next week by 12:30 pm and Canberra Recovery Services will facilitate that.
169․You have got to give an undertaking that you understand and will comply with, that is obey, that order. Do you give me that undertaking now?
THE PARTICIPANT: Yes, I understand, your Honour.
170․Do you give the undertaking that you will comply?
THE PARTICIPANT: Yes, I give that undertaking.
171․I have noted the oral undertaking to comply with the Order and any obligations under the Crimes (Sentencing) Act 2005.
172․Mr Connors, I have explained most of the obligations and the order to you now, but I just need to add a few things. I have given you a Treatment Order, so if you are telling me the truth, and people sometimes do not in this Court, unfortunately, but if you are telling me the truth and you have got over this lifestyle, you really want to move into a drug and crime free life and, in particular, so that you can be the father to your son that you did not really have, then you have come to the right place. We will support you in this.
173․At the end of the day, however, you are the one who has to do it. We will encourage you. We will give you ideas about how to do it. You have had some experience at Ted Noffs and a little time at Oolong, so you have some idea of what you are going into. Some of the counselling and directions you have had before, so you understand them, but it can be tough. You have got to commit yourself and you have got to persist. If you can overcome some of those obstacles, then you will be stronger.
174․The first thing is that you need to be honest. It is very important that you are honest with your counsellors. There is no shame in that. There is no shame in what you have done. There are bad things. You have paid for them and you need to pay more. They are bad things and they need to be called out as such, but you need to be honest about what you have done. Most importantly, you need to be honest to yourself. It is very easy to try and live with yourself and the bad things you have done by minimising what they were. You tell yourself “They weren't that bad, after all”, and so on. Be honest about that. They were bad, and they were things that you would not like done to yourself. You seem to have a fetish about pinching other people's cars. Well, when you finally are able to drive after all these disqualifications, get your own car, and then you will understand that it is not nice for someone else to pinch your car and deprive you of that. Be honest with yourself as well.
175․The second thing is to commit yourself to this and, if it gets tough, there are people you can talk to. You can talk to your counsellors. You will have case managers. You can talk to them.
176․You will come before me very regularly every Friday for a while, and if there are problems, let me know. I will certainly try to help you. That is what I am about and there is a capacity for me to sometimes do things that will make some of the tough problems go away, or be easier. I cannot solve everything and sometimes you will have to take it on yourself and solve it. Certainly, however, sharing it and working through it with others will help you. If you do find that it just is not working, then raise it with me on one of the Fridays when you come and see me, and we will see what can be done to change that.
177․Sometimes people do silly things. So, if you do something silly and leave or if you do something silly and they kick you out, come back. Do not just say, “This is terrible. I'm going to run away and hide.” We find everyone who runs away. They come back and then it is worse, because at the end of the day you have still got most of a four year sentence hanging over your head. I do not want to terrify you about that. I am not saying that because you need to be frightened, but that is the reality and you need to understand the consequences.
178․You will not have Mr Turner acting for you in the future, Legal Aid will act for you, but you will be introduced to Legal Aid lawyers and they will be able to assist you if there are problems that you need to address.
179․This is a good opportunity. You seem, from your letter, not only to be genuine but to have a good understanding of where you have been and where you want to go. The motivation to be with your son is a really strong one and a lot of people have found that that has kept them to this program and they have come through and done very well. It is really so lovely to see in this Court so many people recovering their children or recovering access to them in a way that they really had no chance of doing beforehand.
180․The only thing that is left for me to say is good luck. I hope this works. You work hard. Your counsellors and case managers will also work hard and I will work hard to try and make this work.
181․Mr Connors, there is also an automatic cancellation of licence. Ordinarily, that is cumulative, but I have made it concurrent. I think there is still some left over from your current disqualifications, so it is not just going to be two years. It is going to be a bit more than that.
| I certify that the preceding one hundred and eighty-one [181] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge Associate: Date: 10 January 2023 |
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