R v Connors (No 3)
[2022] ACTSC 391
•8 December 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Connors (No 3) |
Citation: | [2022] ACTSC 391 |
Hearing Date: | 2 December 2022 |
Decision Date: | 8 December 2022 |
Before: | Refshauge AJ |
Decision: | (1) Stanley Shane Connors be convicted of dishonestly taking a motor vehicle without authority (CAN 2046/2022) and be sentenced to 11 months imprisonment to commence on 1 April 2022 and end on 28 February 2023. (2) Stanley Shane Connors be convicted of dishonestly riding in a motor vehicle without consent (CAN 9772/2022) and be sentenced to 8 months imprisonment to commence on 1 March 2023 and end on 31 October 2023. (3) Stanley Shane Connors be convicted of driving while disqualified (CAN 1766/2022) and be sentenced to 6 months imprisonment to commence on 1 August 2023 and end on 31 January 2024. (4) Stanley Shane Connors be convicted of possessing a drug of dependence (CAN 4695/2022) and be sentenced to 1 month imprisonment to commence on 1 February 2024 and end on 29 February 2024. (5) The Drug and Alcohol Treatment Order made on 15 February 2022 be cancelled. (6) Stanley Shane Connors’ conviction for attempted aggravated robbery (CAN 546/2021) be confirmed and the sentence of 31 months imprisonment be imposed to commence on 1 September 2022 and end on 31 March 2025. (7) Stanley Shane Connors’ conviction for riding in a motor vehicle without consent (CAN 2021/2213) be confirmed and the sentence of 8 months imprisonment be imposed to commence on 1 November 2024 and end on 30 June 2025. (8) Stanley Shane Connors’ conviction for driving a motor vehicle without consent (CAN 12168/2020) be confirmed and he be sentenced to 8 months imprisonment to commence on 1 March 2025 and end on 31 October 2025. (9) Stanley Shane Connors’ conviction for driving while disqualified (CAN 12167/2020) be confirmed and the sentence of 5 months imprisonment be imposed to commence on 1 July 2025 and end on 30 November 2025. (10) Stanley Shane Connors’ conviction for riding in a motor vehicle without consent (CAN 12169/2020) be confirmed and the sentence of 8 months imprisonment be imposed to commence on 1 August 2025 and end on 31 March 2026. (11) Stanley Shane Connors’ conviction for driving a motor vehicle without consent (CAN 1123/2021) be confirmed and the sentence of 9 months imprisonment be imposed to commence on 1 October 2025 and end on 30 June 2026. (12) Stanley Shane Connors’ conviction for driving while disqualified (CAN 1126/2021) be confirmed and the sentence of 5 months imprisonment be imposed to commence on 1 March 2026 and end on 31 July 2026. (13) Stanley Shane Connors’ conviction for obtaining property by deception (CAN 1124/2021) be confirmed and the sentenced of 3 months imprisonment be imposed to commence on 1 June 2026 and end on 31 August 2026. (14) A non-parole period of 2 years, commencing on 1 April 2022 and ending on 31 March 2024, be set. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of Drug and Alcohol Treatment Order – conviction for further offences while subject to a treatment order – consideration of pre-sentence custody for other offences – where offender had a disadvantaged childhood – where significant steps taken toward rehabilitation – sentence of imprisonment imposed |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), ss 7, 10, 12A, 33(1), 33(3), 63, 80ZD, 80ZD(3), 80ZC(3) Criminal Code 2002 (ACT), s 318 Criminal Code Regulation 2005 (ACT), Sch 1 Pt 1.1 Drugs of Dependence Act 1989 (ACT), s 169 Magistrates Court Act 1930 (ACT), s 90B Road Transport (Driver Licensing) Act 1999 (ACT), s 32(1)(a) Road Transport (General) Act 1999 (ACT), s 72 Road Transport (Road Rules) Regulation 2012 (ACT) |
Cases Cited: | Ashdown v The Queen [2011] VSCA 408; 37 VR 341 Boney v The Queen [2015] NSWCCA 291 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Challis v The Queen [2008] NSWCCA 210; 188 A Crim R 154 Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Hawkins v Hawkins [2009] ACTSC 148; 3 ACTLR 210 Singh v The Queen [2017] ACTCA 17 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Parnell and Ellis v Rigby [2008] NTSC 40; 24 NTLR 1 Proud v Sladic [2014] ACTCA 26; 67 MVR 485 R v Antonovic (No 3) [2021] ACTSC 338 R v Bloomfield (1998) 44 NSWLR 734 R v Connors [2022] ACTSC 374 R v Connors (No 2) [2022] ACTSC 384 R v Crawford (No 1) [2020] ACTSC 245 R v Cuthbert [1967] 2 NSWR 329; 86 WN (Pt 1) (NSW) 272 R v Donnelly [2021] ACTSC 336 R v Forrest (No 2) [2017] ACTSC 83 R v Foster [2021] ACTSC 229 R v Girvan (No 2) [2013] ACTSC 138 R v Hancock [2021] ACTSC 52 R v Huynh [2005] NSWCCA 220 R v Kilic [2016] HCA 48; 259 CLR 256 R v Lovelock [2020] ACTSC 376 R v Massey (No 1) [2020] ACTSC 256 R v McMahon (No 2) [2017] ACTSC 299 R v Oliver (1980) 7 A Crim R 174 R v Po'oi [2021] ACTSC 151 R v Reid (No 1) [2021] ACTSC 334 R v Roux (No 2) [2015] ACTSC 361 R v Ruwhiu [2022] ACTSC 290 R v Slattery [2021] ACTSC 154 R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 R v Tuifua (No 3) [2021] ACTSC 149 R v Weldon [2021] ACTSC 348 R v Winters [2022] ACTSC 371 R v KN [2019] ACTSC 305 Saga v Reid [2010] ACTSC 59 Sladic v Proud [2013] ACTSC 232 Thorn v Laidlaw [2005] ACTCA 49 Wong v the Queen [2001] HCA 64; 207 CLR 584 |
Parties: | Director of Public Prosecutions ( Crown) Stanley Shane Connors ( Offender) |
Representation: | Counsel N Deakes ( DPP) C Duffy ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Numbers: | SCC 284 of 2021 SCC 285 of 2021 SCC 249 of 2022 SCC 250 of 2022 SCC 294 of 2022 |
REFSHAUGE J:
Introduction
1․As explained in R v Foster [2021] ACTSC 229 at [1]-[2], the causes of crime are many, and, while there is a relationship between drug use and crime, additional issues beyond abstinence from (or, at least, non-harmful use of) drugs need to be addressed to result in the rehabilitation of offenders.
2․Often, the appropriate management of rehabilitation is very difficult, and, as noted in Saga v Reid and Collett [2010] ACTSC 59 at [89], it can take a number of failed attempts to achieve that rehabilitation. It is, however, worthy as an objective, for as French CJ said in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 537; [32], “Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.” These principles lie behind the work of the drug court, which in this Territory is conducted by the Drug and Alcohol Sentencing List (the List) of this Court, as explained in R v Antonovic (No 3) [2021] ACTSC 338 at [1]-[6].
3․Stanley Shane Connors, who appears now for sentence, had been admitted to the List, but before he could progress too far, committed the further offences for which he must now be sentenced. In doing so, the Drug and Alcohol Treatment Order (Treatment Order) made under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) (see R v Connors [2022] ACTSC 374) for Mr Connors will have to be reviewed.
4․It is appropriate to deal first with the sentence for the further offences. Mr Connors has pleaded guilty to offences of dishonestly taking a motor vehicle without the owner's consent; dishonestly riding in a motor vehicle without the owner's consent; driving a motor vehicle while disqualified from holding or obtaining a driver licence; and possessing a drug of dependence, namely methylamphetamine.
5․On the sentence, the prosecution tendered without objection the Prosecution Tender Bundle. It included the prescribed and helpful cover sheet, the committal documents and the transfer documents for the related charges transferred to this Court under s 90B of the Magistrates Court Act 1930 (ACT), the Agreed Statement of Facts, Mr Connors' criminal history, a bundle of photographs of relevant items accessed by police, and a Latent Fingerprint Examination Report dated 26 May 2022.
6․In that bundle, the prosecution also foreshadowed obtaining a certificate under s 72 of the Road Transport (General) Act 1999 (ACT) which was evidence of the status of any driver licence held by Mr Connors. When obtained, that certificate was also tendered without objection. It showed that he had never held a licence, but had been disqualified from holding or obtaining a licence from 15 February 2022 to 13 June 2026.
7․The prosecution also tendered without objection a letter from ACT Corrective Services in response to a subpoena dated 17 November 2022. In the letter, it was stated that Mr Connors had been exempted from urinalysis reporting upon his admission to custody following his arrest due to COVID-19 restrictions and had not been subject to urinalysis screening “for the remainder of the time period requested”. That reference appears to refer to the schedule of documents sought in the subpoena, namely “Urinalysis results of Stanley Shane Connors […] from 31 March 2022 to the present.”
8․While the letter was dated 21 November 2022, the reference to “the present” was ambiguous regarding whether it meant the date of the subpoena, namely 17 November 2022, or the date of the letter.
9․When the letter was shown to him, Mr Connors affirmed that he had been subject to urinalysis. He suggested that it was “two weeks ago” in relation to a visit, which would have been some time around 18 November 2022. He also explained that the visit was “an intra jail visit” at which he saw his stepmother, who is also currently incarcerated, and that it was a requirement of such visits where, when women detainees meet men who are also detainees, it is the requirement that the detainees are tested. There was no evidence regarding whether there is such a requirement, but he was not challenged on that assertion. He was challenged, however, on whether he had been tested at all. There was some vagueness about the date.
10․In the circumstances, it does not appear that he is lying, but, in any event, the evidence only goes to the last few weeks of his incarceration when he clearly wanted to see his stepmother and so would be motivated to be drug free. In any event, it was not put to Mr Connors that he was lying when he said that he had not used drugs while in custody and that may be accepted, especially given the other achievements he has managed to make in custody.
11․Ms C Duffy, counsel for Mr Connors, tendered a number of documents without objection. These included a letter from Mr Connors expressing his remorse, and showing insight into and acceptance of responsibility for his conduct along with a commitment to reform. They also included an email advising that Mr Connors would be able to return to Canberra Recovery Services following his release from custody; a certificate of completion by Mr Connors of training in peer monitoring for assisting and supporting vulnerable persons at the Alexander Maconochie Centre; a letter dated 27 October 2022 about that program and his participation; a letter from Winnunga Nimmityjah Aboriginal Health and Community Services Ltd concerning his engagement with that service since 27 May 2022; and a letter from Yeddung Mura Aboriginal Corporation dated 15 November 2022 about his participation in an anger management program with that organisation.
12․There was no objection to the contents of any of the tendered documents. In addition, Mr Connors gave oral evidence to the Court and was cross-examined, though that cross-examination, while eliciting helpful further information, did not challenge his evidence-in-chief. The Court also had helpful and focused written submissions prepared by Mr N Deakes, counsel for the prosecution, and both he and Ms Duffy made oral submissions and answered questions from the Court. These were of great assistance in formulating and addressing the issues. From this material, the following findings are made.
The Facts
13․Early in the morning of 20 February 2022, Mr Connors went to a house in Melba, ACT, entering it apparently without objection. When the owner, the mother of one of his close friends, went to sleep after speaking to him, he took the keys of a motor vehicle, a Toyota Corolla – which had been the motor vehicle of the deceased grandmother of his friend – and drove it from the residence.
14․He drove the vehicle that morning to Coombs, ACT. Because he was observed driving it erratically, police were contacted. They found the vehicle parked in a street and, when they approached it, found Mr Connors asleep in the vehicle.
15․He was awoken by police and they observed that he seemed to be under the influence of an intoxicating substance. Mr Connors identified himself to police and admitted that he did not have a current driver licence. This led to him being charged with driving a motor vehicle when disqualified from holding or obtaining a driver licence.
16․The mother of his close friend had not given Mr Connors permission to take the motor vehicle, which led to him being charged with dishonestly taking the motor vehicle without the owner’s consent. The evidence for these offences was very strong.
17․When the police searched the motor vehicle, they located a knotted yellow balloon containing an unknown substance which, on analysis, was found to be 0.1 grams of methylamphetamine. He was charged with possession of a drug of dependence.
18․On 28 February 2022, police located another motor vehicle, a Ford Territory van, parked outside a residence in Melba. The motor vehicle had been reported as stolen from a residence in Young, New South Wales on 17 February 2022. A forensic examination identified a fingerprint of Mr Connors on the rear vision mirror inside the vehicle, which led to Mr Connors being charged with dishonestly riding in the motor vehicle without the owner's consent.
19․There was no evidence that Mr Connors had stolen the motor vehicle; indeed, he was at the Canberra Recovery Services residential drug rehabilitation facility on the day it was stolen. There was also no evidence of when or where he got into the vehicle, how long he was in it, or how far it was driven while he was in it. He did not have the owner's permission to ride in the vehicle.
20․As noted above, Mr Connors had never held a driver licence and he had been disqualified from holding or obtaining a licence from 15 February 2022 to 13 June 2026. This meant that at all relevant times he was a disqualified driver.
The Proceedings
21․Mr Connors was arrested on 20 February 2022 apparently for driving whilst disqualified but it appears that he was released on bail. It is not clear on what charge he was arrested, as he was charged later with the offences currently being heard. He had, however, admitted to police that he had discharged himself from Canberra Recovery Services, which he had been required to attend under a Treatment Order made on 15 February 2022 and the arrest may have been for that breach: s 802K of the Sentencing Act.
22․That Treatment Order contained a suspension of the sentence of imprisonment which had been imposed, and required him to admit himself to the residential drug rehabilitation program conducted by Canberra Recovery Services, which he did. He left the facility that day to visit his brother who had been admitted into hospital, but did not return: see R v Connors (No 2) [2022] ACTSC 384 at [14]-[16].
23․A warrant was issued on 18 February 2022, when he failed to return to Canberra Recovery Services or the Court. That warrant was executed on 21 February 2022 and he was refused police bail . On 22 February 2022, the suspension of the custodial part of the Treatment Order was provisionally cancelled and he was remanded in custody until the Treatment Order was reinstated on 7 March 2022. He was then released from custody.
24․Therefore, he could not have ridden in the Ford Territory motor vehicle on 28 February 2022, though this was the date on which the offence of dishonestly riding in the motor vehicle without the owner's consent was pleaded to have occurred on the information in the initial mention in the Magistrates Court. It was accepted that the offence can only have occurred between 17 and 22 February 2022. As a result, the information alleging that he rode in the motor vehicle on 28 February 2022 cannot be proved, as he was in custody on that day. It must have been between 17 and 22 February 2022.
25․In R v Hancock [2021] ACTSC 52 at [51]-[58], it was held that, when a criminal proceeding in the Supreme Court proceeds to sentence following a committal in the Magistrates Court where the defendant pleaded guilty, this Court has the same power to amend the information laid in the Magistrates Court and on which the sentencing would proceed in the Supreme Court as it would if it were an indictment. The date on which it is alleged that an offence has occurred is one which can be amended as a proper subject of such an amendment: R v Girvan (No 2) [2013] ACTSC 138. Accordingly, the court ordered that the information be amended to substitute “17 to 22” for “28” as the date of the offence.
26․Mr Connors appeared in the Magistrates Court on 16 March 2022, when he was charged with the offences of dishonestly taking the Toyota Corolla motor vehicle without the owner's consent and driving whilst disqualified from holding or obtaining a driver licence. He was released on bail, but, when he returned to Court on 1 April 2022, he was remanded in custody and has remained in custody since then. On 6 April 2022, he pleaded not guilty to these two offences.
27․On 18 May 2022, he was further charged with the offence of possessing a drug of dependence and on 18 July 2022 also pleaded not guilty to that offence. On that day, the charges of dishonestly taking the Toyota Corolla motor vehicle without the owner's consent, driving whilst disqualified from holding or obtaining a driver licence as a repeat offender and possessing a drug of dependence were listed to be heard on 29 and 30 September 2022, thus requiring the prosecution Brief of Evidence be prepared.
28․On the morning of the hearing, 29 September 2022, however, he changed his plea to guilty. The matter was adjourned to 10 October 2022. On 3 November 2022, Mr Connors also pleaded guilty in the Magistrates Court to the charge of dishonestly riding in the Ford Territory motor vehicle without the owner's consent which had then been preferred. The charges were all committed for sentence to this Court, to be heard together in the List. This appears to have been because the finalisation of the proceedings on the Treatment Order had not been completed.
29․The Treatment and Supervision part of the Treatment Order had been provisionally cancelled under s 80ZC of the Sentencing Act on 1 April 2022 when Mr Connors was remanded in custody in the ACT Magistrates Court. While there is generally a view that the one judicial officer should, so far as jurisdiction and other matters allow, deal with all charges against an offender, this is not a rule of law and that is no reason why different judicial officers cannot deal with unrelated offences. Of course, related offences are in a somewhat different category.
30․Where jurisdiction prevents a judge or magistrate dealing with offences against the one offender, even where they have some relationship, that is simply what has to be done. This can happen when, during the proceedings relating to certain offences, an offender breaches the bail granted pending the finalisation of the matters. Thus, for example, if the principal offences preferred against an offender are dealt with by the Supreme Court, the offence of failing to comply with a bail undertaking must, even for the bail granted for those offences, be dealt with in the Magistrates Court and not in the Supreme Court: R v McMahon (No 2) [2017] ACTSC 299 at [14]-[25].
31․In this case, while this Court has jurisdiction to deal with the current offences, it is a concurrent jurisdiction with that of the Magistrates Court and there is no reason requiring this Court to have to deal with all of them. There was no direct relationship between the offences being dealt with in this Court and those that were originally before the Magistrates Court. There is no further sentence to be imposed in this Court, though if the sentence for the current offences were to be a sentence of imprisonment, as seems likely, then this Court will be required to cancel the Treatment Order: s 80ZD(3) of the Sentencing Act. Of course, if, on the imposition of the sentence which was suspended which must follow that cancellation, this Court would, were Mr Connors to have been sentenced in the Magistrates Court for these offences, have to give consideration to the principle of totality.
32․Mr Connors has now been in custody for these offences for 268 days. That must be taken into account by virtue of s 80ZC(3) of the Sentencing Act. It constitutes service of the custodial part of the Treatment Order. To that extent, the principle that pre-sentence custody does not include periods of custody while serving a sentence of imprisonment and so cannot be counted under s 63(2) for the purpose of backdating the commencement of a sentence, as decided in R v Po’oi [2021] ACTSC 151 at [44] must otherwise apply. This creates a difficult issue which is further explained below.
The Offences
33․Having set out the facts which founded the charges preferred against Mr Connors and to which he has pleaded guilty, the task of sentencing requires the Court to synthesise the various factors to be considered in order to come to a just and adequate sentence: Wong v The Queen [2001] HCA 64; 207 CLR 584 at 612, [75]; Singh v The Queen [2017] ACTCA 17 at [93].
34․This is assisted by the legislature which has, in s 33 of the Sentencing Act, set out the factors that must be considered. In addition, human nature and activity being so diverse, it is accepted that the court sentencing an offender is not limited in the matters it may consider: s 33(3) of the Sentencing Act. Those other matters must, of course, be relevant.
35․The first matter that must be considered is the nature and circumstances of the offence: s 33(1)(a) of the Sentencing Act. There are principally three matters relevant to this factor. The first is the actual factual basis from which the offences arise and this has already been found.
36․Next, the Court must have regard to the maximum penalty for the offences. This is, of course, the legislative directive concerning the offence and is “of great relevance”: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 372, [31]. It invites comparison between the worst possible category of case and the case before the court for sentence; and, taken and balanced with all the other relevant factors, it provides a yardstick.
37․The Court must therefore identify the relevant matters that will help to assist that comparison with the worst possible category of case, namely those factors that aggravate or mitigate the seriousness of the offences already committed: R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 at 108, [24].This is helped by having regard to what matters Courts have previously found to be such relevant factors of aggravation and mitigation.
38․Dishonestly taking a motor vehicle without the owner's consent is made an offence by s 318(1) of the Criminal Code 2002 (ACT) (Criminal Code), which legislates a maximum penalty of 5 years imprisonment or a fine of $80,000 or both.
39․This offence is effectively the stealing of a motor vehicle, and as such, matters relating to theft are relevant to the assessment, such as the value of the property: R v Huynh [2005] NSWCCA 220 at [27]. While there is often, as here, no direct evidence of the value of the stolen motor vehicle, the Court can draw on its general knowledge. For example, the Courts have accepted that a motor vehicle is often, after a home, the most expensive purchase of the owner: R v Forrest (No 2) [2017] ACTSC 83 at [75]. It is also, especially in Canberra, an important part of the owner's life, for they are often quite dependent on it to negotiate their daily life: R v Roux (No 2) [2015] ACTSC 361 at [78].
40․An aggravating circumstance is the subsequent use of the motor vehicle in the commission of another offence: R v Lovelock [2020] ACTSC 376 at [25]. This was, however, not the case here, other than, perhaps, the use of it to transport the drugs that were found in it; however, there was no evidence this was any part of the purpose of the theft of the motor vehicle.
41․In addition, the period of time during which the offender has driven the motor vehicle and the distance travelled are relevant: R v Po’oi at [69]. In this case, as is often the case, the evidence is not entirely clear. It appears that Mr Connors had the vehicle for about 9 to 10 hours and drove between the suburbs of Melba and Coombs, a distance of between 16 and 20 kilometres. Given the time between the taking and the recovery of the vehicle, it may have been driven much more than this.
42․It is also relevant that the motor vehicle was recovered, could be restored to the owner and, so far as the evidence goes, was undamaged – all factors that indicate a less serious offence than similar cases where the vehicle is damaged, especially beyond repair, or even not recovered: R v Po’oi at [70].
43․If known, the manner of driving can be relevant: R v Donnelly [2021] ACTSC 336 at [70]. Here, there was limited evidence regarding the manner of driving, although it was suggested that the driving had been somewhat erratic. No further evidence was given on this issue. It is also relevant as to whether there were any passengers in the vehicle, which was not the case here.
44․In light of the above factors, this was by no means the most serious version of the offence, but was not the least serious. The factors here identified must be taken into account.
45․The similar offence of dishonestly riding in a motor vehicle without the owner's consent is an offence contrary to s 318(2) of the Criminal Code, which renders Mr Connors liable to a maximum penalty of five years' imprisonment or a fine of $80,000, or both.
46․The penalty is, of course, the same as that for the offence of dishonestly taking a motor vehicle without the owner's consent. Perhaps this is, in part, because while the taker of the motor vehicle is the thief, the offender who drives it is like the receiver of the stolen vehicle: R v Reid (No 1) [2021] ACTSC 334 at [26].
47․Thus, it also deprives the owner of the use of the vehicle: R v Crawford (No 1) [2020] ACTSC 245 at [38]. The above factors, relevant to the taking of the motor vehicle, are relevant to this offence as well. Mr Connors drove at least from Melba to Coombs, he did not appear to have any passengers, he did not use the motor vehicle for the commission of any other offences, and the motor vehicle was recovered, apparently undamaged. There was no evidence to suggest that Mr Connors drove it in an unacceptable manner or contrary to the Australian Road Rules: see Road Transport (Road Rules) Regulations 2012 (ACT). The evidence about the time during which Mr Connors had the vehicle is also unclear.
48․Driving a motor vehicle while disqualified from holding or obtaining a driver licence is made an offence by s 32(1)(a) of the Road Transport (Driver Licensing) Act1999 (ACT) for which the maximum penalty is six months imprisonment or a fine of $8,000.
49․The offence has been considered at some length in Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 at 307-308, [36]-42]. In summary, the number of prior similar offences aggravates the offence. Consideration must be given to whether the driving was contumacious. The reason for the driving, the time and distance of the driving and the manner of driving are all relevant.
50․Mr Connors has never held a licence and has been convicted of this offence five times previously, two of which were when he was sentenced on 15 February 2022, just a few days before committing these offences. He was also convicted of driving whilst unlicensed [redacted] once as an adult. No reason was given for the driving and it appears clear that driving in such a manner was clearly contumacious. As with the earlier offences, the time, distance travelled, and manner of driving were all somewhat unclear on the evidence, but, so far as is known, are set out above at [41]. This charge is only, of course, relevant to the driving of the Toyota Corolla motor vehicle.
51․Possessing a drug of dependence is contrary to s 169 of the Drugs of Dependence Act 1989 (ACT) which specifies a maximum penalty of two years' imprisonment or a fine of $8,000, or both.
52․While the weight and quantity of the drug will not be of chief importance in trafficking drug cases, as explained in Wong v The Queen at 609; [67]-[71], it is clearly of some significance in these cases. The amount was 0.1gms which is 1.67 per cent of the trafficable quantity of the drug: Criminal Code Regulation 2005 (ACT), Sch 1, Pt 1.1, item 44.
Subjective Circumstances
53․In addition to the characteristics of the offence, the common law also required a court sentencing an offender to take into account the characteristics of the offender: R v Kilic [2016] HCA 48; 259 CLR 256 at 266, [19]. A number of paragraphs in s 33(1) of the Sentencing Act also address this.
54․The subjective circumstances of Mr Connors have been set out extensively in R v Connors at [83]-[113] and it is not necessary to repeat them here, except to summarise them and to update any matter relevant since that decision was given.
55․Mr Connors is now 27 years old, of Ngunnawal and Tongan heritage. He has strong ties to his land and his culture. He had a somewhat disadvantaged childhood, suffering physical abuse and witnessing domestic violence and some drug use. He had problems at school but did manage to obtain some limited employment after leaving school in Year 7. He has a son, whom he has had difficulties accessing. He has experienced significant loss of close relatives recently, including that of his father with whom he reconnected as a child after his father left the family before his birth. As a result, he wishes to reconnect with his son.
56․While he has historical diagnoses of borderline personality disorder and depression, he has no other mental issues or physical illnesses or disabilities.
57․He first used alcohol and tobacco at an early age but no longer drinks. He first used methamphetamine at a very early age and it continues to be his drug of choice, though, as noted above at [7], he says that he has not used it since being returned to custody this year. He used cannabis also, but ceased using some four years ago, though with some occasional use since then. He has not used other drugs except very sporadically.
58․He has had some alcohol and other drug treatment, including pharmacotherapy. He did engage in some therapy while in custody in 2021.
59․He has 77 criminal offences on his record [redacted]. [Redacted] The majority of his adult offences are related to dishonestly driving or riding in a motor vehicle without the owner's consent, which, of course, are the primary current offences. His progress in custody prior to February this year has been a challenge, gaining for him 11 formal disciplinary actions. No evidence has been adduced of any such actions currently.
60․His childhood disadvantage justifies, as both counsel acknowledged, a degree of moderation in the effect of culpability on sentence, as recognised in Bugmy v The Queen [2013] HCA 37; 249 CLR 511.
61․While in custody this year, Mr Connors has made significant efforts to progress the rehabilitation which was cut short under the Treatment Order when he committed the current offences. This must be taken into account.
62․His evidence was that he has not used drugs while in custody, though there was some dispute about whether that had been confirmed by urinalysis (as dealt with above at [3]). He has sought to engage in the Solaris Therapeutic Community Program, a drug rehabilitation program conducted in the Alexander Maconochie Centre in accordance with therapeutic community principles. It appears it is not currently available to him as he is not a sentenced prisoner.
63․He has, however, completed a program of Peer Mentor Training for assisting and supporting vulnerable persons at the Alexander Maconochie Centre and his participation was described as “positive”. He was reported to “have actively engaged in the content of each training program session”.
64․As noted above, he has been a patient of Winnunga Nimmityjah Aboriginal Health and Community Services Limited, an Aboriginal community controlled primary healthcare service, and is described as follows:
Respectful towards nursing staff and doctors, complied with all medication regimes, listens to and responds appropriately to verbal instructions from medical staff. He's alert to his own medical needs and proactively seeks assistance when required.
65․He has also engaged with Yeddung Mura Aboriginal Corporation, described as “a grassroots organisation that works directly in the community to meet the needs of Aboriginal persons”. It has been delivering such services since 2008 and, in particular, to Aboriginal persons in custody since 2014. He has participated in two sessions of a program called “Circuit Breaker” conducted by Yeddung Mura, and is described as having “demonstrated strong leadership capacity and ability to engage well as a group member”. The program is described as:
An early intervention anger management program to help our community to respond to domestic and family violence in proactive ways rather than reactively. Circuit Breaker tackles complex issues of domestic abuse by building trust and providing participants with tried and tested tools for managing anger.
66․This is significant engagement in rehabilitation which must be taken into account on sentence.
67․Mr Connors has also expressed remorse for his offending, both early on in his letter to the Court and again in his oral evidence. He has sought to engage in the restorative justice process, though that does not appear to have commenced yet. Nonetheless, the intention to do so, which he has discussed with officials in custody, confirms his remorse, as does his plea of guilty.
Current Sentencing Practice
68․In addition to the other matters set out in s 33(1) of the Sentencing Act to which a Court sentencing an offender must have regard, current sentencing practice must also be considered, as set out in s 33(1)(za). This is important for the sentencing principle of consistency; further, it always assists a Court engaged in the difficult task of sentencing to have the benefit of the “collective wisdom of judges”: R v Oliver (1980) 7 A Crim R 174 at 177.
69․There are two ways in which this may be achieved: one is through access to the statistics recorded in the ACT Sentencing Database, and the other is through the consideration of cases considered comparable.
70․There are significant difficulties in making use of statistics: see R v Bloomfield (1998) 44 NSWLR 734 at 739. Nevertheless, as noted in Ashdown v The Queen [2011] VSCA 408;37 VR 341 at 347; [13], they can provide useful information. The limitations, however, must be acknowledged. Some of these, in respect of the ACT Sentencing Database, have been referred to by the Court in decisions such as R v Winters [2022] ACTSC 371 at [128]-[134] and R v Weldon [2021] ACTSC 348 at [82]-[83].
71․One of the issues in this area is the prevalence of the offence of dishonesty, taking a motor vehicle without the owner's consent. This is a matter into which some insight can be gained by accessing the database, as in R v Massey (No 1) [2020] ACTSC 256 at [58]. Ordinarily, some evidence is required to assess prevalence, though for very common offences, the court can rely on its own knowledge: Parnell and Ellis v Rigby [2008] NTSC 40; 24 NTLR 1 at [32]. In this regard, see Sladic v Proud [2013] ACTSC 232 at [102]-[105]. Although an appeal in that latter matter was upheld, the comments of the Court of Appeal did not seem to reject that submission (though they perhaps required further consideration when it was mentioned): Proud v Sladic [2014] ACTCA 26 at [21].
72․The statistics were summarised in R v Massey (No 1) at [58]-529] and set out in R v Connors at [120]. It is not necessary to repeat them here though they will be taken into account.
73․In R v Massey (No 1) at [80], the current sentencing practice in respect of the charge of driving a motor vehicle while disqualified from holding or obtaining a licence was also set out. This will also be taken into account.
74․The prosecution referred to three decisions said to have shown some comparability. In R v Slattery [2021] ACTSC 154, Mr Slattery was sentenced to five counts of driving a motor vehicle without the owner's consent. In each case he was sentenced to nine months imprisonment. He had earlier committed 10 offences of dishonestly driving a motor vehicle without the owner's consent. He had a disadvantaged upbringing. The offences were similar but there was no evidence of how far the cars had been driven, though it did not appear that there had been any passengers in them. Mr Slattery had a significant history of childhood disadvantage, a long criminal record and a serious drug dependency.
75․In R v Tuifua (No 3) [2021] ACTSC 149, Mr Tuifua was sentenced for an offence of dishonestly riding in a motor vehicle without the owner's consent. The details of the offending and Mr Tuifua's circumstances set out in the sentencing remarks were very limited, so it is difficult to compare the cases. Mr Tuifua, however, had made significant efforts towards rehabilitation. He was sentenced to six months imprisonment for the offence.
76․In R v KN [2019] ACTSC 305, the offender, KN, was then a young person which makes comparison difficult because of the separate considerations relating to the sentencing of young persons as explained in Thorn v Laidlaw [2005] ACTCA 49 at [28]-[32]. He was 15 years old at the time but the offence was described as “unremarkable” (at [4]) but KN had a disadvantaged childhood for various reasons. For the offence of dishonestly driving a motor vehicle without the owner's consent he was sentenced to a 12‑month good behaviour order.
Pre-sentence custody
77․Mr Connors has, as noted, been in custody since he was arrested on 21 February 2022. Ordinarily, pre-sentence custody is to be taken into account when activating suspended sentences: Hawkins v Hawkins [2009] ACTSC 148; 3 ACTLR 210 at 223-231, [61]-[102]. As there noted at [96], it would ordinarily “be inappropriate for the pre-sentence custody to be credited twice”. Thus, as noted in R v Po’oi at [44], periods of pre-sentence custody where an offender is serving another sentence should not be counted in sentencing for the other sentences as pre-sentence custody.
78․In this Territory, the almost invariable position is that periods of pre-sentence custody are taken into account by the backdating of sentences as permitted under s 63 of the Sentencing Act.
79․Thus, Mr Connors is entitled to have the sentence to be imposed for these offences to start on 1 April 2022 when he was remanded in custody for them and not serving a sentence.
80․Under s 80ZC(3) of the Sentencing Act, however, periods spent in custody when he is charged with other offences, whether in Australia or elsewhere, must be taken as service of the custodial part (the imprisonment) of the sentence for which a Treatment Order has been made. There is, therefore, some contradiction in practice, though not perhaps theoretically, between the two sections.
81․Where, as here, one Court is dealing with both sentences (for the new offences and for the imposition of the suspended sentence or resentencing), the principle in R v Po’oi can be applied because the period in custody is, in a real sense, serving the sentence that subsequently will be either imposed or subject to the resentencing. That is a theoretical possibility and, of course, ultimately, the sentence may not be a sentence of continuing imprisonment.
82․It is, however, more difficult where the offences are dealt with in separate Courts, as could have happened here if the current offences were dealt with in the ACT Magistrates Court. That Court would, however, be expected to know of the provisions of s 80ZC(3) of the Sentencing Act and take that into account, although if this were not drawn to the Court's attention it could apply pre-sentence custody by backdating the sentence that it imposed.
83․That section, however, applies “worldwide”, including where knowledge of ACT legislation may not be known, or even likely to be known. Thus, such pre-sentence custody is likely to be recognised in those jurisdictions where it is usually recognised. When this Court then deals with the cancellation of Treatment Order, as required under s 80ZD of the Sentencing Act, the mandatory provisions of s 80ZC(3) of the Sentencing Act would require that period to be taken into account whether or not it had been taken into account elsewhere.
84․While the Court has not heard submissions on this issue, it seems that fairness would require the period of pre-sentence custody to be given full effect in the sentencing, because it would otherwise have unfair different effects on different persons. Therefore, in the current sentences these periods of re-sentence custody were taken into account (s 63 of the Sentencing Act) and in any imposition of the suspended sentence or resentencing under s 80ZC(3) of the Sentencing Act, these periods of pre-sentence custody must again be taken into account in the same way.
Conditional liberty.
85․Mr Connors was serving a sentence of four years' imprisonment subject to a Treatment Order which requires the imprisonment to be suspended: s 80W of the Sentencing Act. He was, thus, on conditional liberty when he committed these further offences. That is a serious matter which aggravates the offending: Challis v The Queen [2008] NSWCCA 210; 188 A Crim R 154 at 161; [36]. It does not, however, aggravate the objective seriousness of the offences: Boney v The Queen [2015] NSWCCA 291 at [20]. It is relevant only to aggravate the sentence.
86․This is because such offending is a breach of the privilege which the making of such an order gives the offender; he is trusted to be at liberty, rather than in custody, so long as he is of good behaviour. R v Ruwhiu [2022] ACTSC 290 at [91].
87․In this case, the fact that Mr Connors was subject to a Treatment Order and, therefore the term of imprisonment, after taking into account 78 days of pre-sentence custody for these offences (R v Connors at [48]), is relevant to make the sentence for these offences somewhat more serious.
Consideration
88․Mr Connors must now be sentenced. This is a difficult task which requires all the relevant matters to be considered, resulting in a single sentence for each offence. This task is considerably helped by the clear indications of the purposes of the sentence as now set out in s 7 of the Sentencing Act.
89․Given the seriousness of the offences, which caused distress and inconvenience to the victims, a level of imprisonment is appropriate. Similarly, the norms of civilised conduct that are established by the offences must be reinforced by a sentence that will denounce the conduct and, to the extent possible, deter others who may be inclined to commit similar offences.
90․It must also be made clear that the conduct is unacceptable and Mr Connors should, so far as possible, be deterred from committing such offences – or preferably, any other offences – again. This may be a vain hope given that the sentence will be, at least in large part, a repeat of what he has been sentenced to before without success: R v Antonovic (No 3) at [118].
91․Further, the harm done to the victims must be recognised in the sentence, not to provide them with some sort of revenge, but to be respectful, to acknowledge that they have suffered at least inconvenience and disruption, if not more, from the crime, and to indicate that this harm to them is taken seriously.
92․Finally, any chance of rehabilitation must also be considered. This will ultimately be more productive for the community and for Mr Connors. All of this will, ultimately, lead to the protection of the community, the ultimate purpose of criminal law: R v Cuthbert [1967] 2 NSWR 329; 86 WN (Pt 1) (NSW) 272 at 274.
93․Mr Connors pleaded guilty to the offences, though initially he pleaded not guilty to all offences except the offence of dishonestly riding in a motor vehicle without the owner's consent. For that offence, he pleaded guilty at the earliest opportunity which justifies a significant discount in the sentence to be imposed. For the others, he only pleaded guilty on the morning on which they had been listed for trial. This was, however, in the Magistrates Court, so there was still a substantial utilitarian value for the plea. Though less, a discount is still to be offered for these offences. It should not be a very substantial discount because the evidence was very strong, though not overwhelming.
94․In constructing the sentence, the Court will now take into account the nature and circumstances of the offences, especially their seriousness and the fact that they were committed while Mr Connors was on conditional liberty; the personal circumstances of Mr Connors, including his childhood disadvantage; his pleas of guilty; the remorse he has shown; and the rehabilitation with which he is currently engaging. Current sentencing practice will of course also inform the sentence.
95․Having considered all reasonable alternatives, it does seem that no sentence other than a sentence of imprisonment is appropriate: s 10 of the Sentencing Act.
96․In this case, there are four offences for which Mr Connors must be sentenced, all of them punishable by imprisonment. The Court must impose a just and adequate sentence on each of them. There is no power in this Territory to impose a general sentence. Each sentence must be just and adequate for the criminality of the offence in light of all the relevant matters, as noted in these remarks.
97․It is, however, also important to consider the total criminality of the offences committed by Mr Connors to ensure that he is not punished twice for the same criminal conduct or elements of criminal conduct. Thus, some sentences will need to be concurrent or partially concurrent. That applies in this case, for example, to the offences of dishonestly taking a motor vehicle without the owner's consent and driving while disqualified from holding or obtaining a driver licence.
98․The total length of the sentence must then be considered to ensure that totality, an important sentencing principle, is respected and that the total sentence adequately reflects the whole of the criminality of the offending, but no more than that, and that the total of the sentences is not excessive. It must leave open the realistic prospect of reform and maintain the hope that Mr Connors has to take an effective part in the community when he is released and to reconnect with his family.
99․This may result in what is seen as some leniency, in that some sentences are made concurrent. However, while the total criminality of the offences Mr Connors has committed is an important factor in sentencing, his growing awareness of the importance of rehabilitation and the steps, limited though they currently are, that he has taken towards rehabilitation are also important factors, as is his childhood disadvantage and the early stage at which he was introduced to drugs. This requires a sentence proportionate to his culpability for the crime, but also to his subjective circumstances and the value of reform to the community and to himself.
Orders
100․Mr Connors, please stand.
(1)I convict you for taking a motor vehicle without the owner's consent (CC 2022/2046), and I sentence you to 11 months imprisonment to commence on 1 April 2022 and expire on 28 February 2023.
(2)I convict you for dishonestly riding in a motor vehicle without the owner's consent(CC 2022/9772), and I sentence you to eight months imprisonment to commence on 1 March 2023 and expiring on 31 October 2023. That is cumulative as to eight months on the sentence for dishonestly taking a motor vehicle without the owner's consent.
(3)I convict you of driving whilst disqualified from holding or obtaining a licence (CC 2022/1766), and I sentence you to six months imprisonment to commence on 1 August 2023 and expiring on 31 January 2024. That is to be cumulative as to three months on the sentence for dishonestly riding in a motor vehicle without consent.
(4)I convict you of possessing a drug of dependence (CC 2022/4695), and I sentence you to one month imprisonment from 1 February 2024 to 29 February 2024. That is wholly cumulative on the offence of driving whilst disqualified.
(5)Had you not pleaded guilty, I would have sentenced you to 12 months imprisonment for dishonestly taking a motor vehicle without consent, 10 months imprisonment for dishonestly riding in a motor vehicle without consent, six months and three weeks for driving whilst disqualified, and six weeks for possession of a drug of dependence.
101․You may be seated.
102․Despite the total sentence being more than 12 months, no non-parole period has been set at this stage as it is appropriate to first consider the appropriate course to take in respect of the Treatment Order. If that results in a term of actual imprisonment, any non-parole period set now would have to be revoked and a new non-parole period would have to be set. It does not seem that to do that in one step rather than two steps would be inappropriate.
103․As Mr Connors has now been sentenced to a term of imprisonment, s 80ZD(3) of the Sentencing Act requires that the Treatment Order made on 15 February 2022 be cancelled and the sentence of imprisonment which was suspended under the Treatment Order be imposed.
104․In these circumstances, it will be necessary to impose the sentence, though taking account of both the original presentence custody and the service of the term of imprisonment under s 80ZC(3) of the Sentencing Act, together with the term in custody when the suspension of the Treatment Order was provisionally cancelled and he was remanded in custody.
105․Mr Connors has taken some important steps towards rehabilitation, which should be taken into account in the setting of a non-parole period that will be shorter than otherwise would be set. A non-parole period will be set which hopefully will give Mr Connors a real prospect of the reform which he now seeks without becoming too settled in custody.
106․Totality also seems to play a part here, and accordingly, there will be some concurrency with the earlier sentence for this purpose, in addition to taking into account the other matters of presentence custody.
107․Mr Connors, please stand again.
(6)I cancel the Treatment Order made and I impose the sentences then imposed. Because time has passed, these sentences now need to be re‑imposed. I confirm the convictions for the offences.
(7)For attempted aggravated robbery (CC 2021/546), I sentence you to 31 months imprisonment commencing on 1 September 2022 and expiring on 31 March 2025.
(8)For dishonestly riding in a motor vehicle without consent (CC 2021/2213), I impose a sentence of eight months imprisonment commencing on 1 November 2024 and expiring on 30 June 2025.
(9)For dishonestly driving a motor vehicle without the owner's consent (CC 2021/12168), I impose a sentence of eight months imprisonment to commence on 1 March 2025 and expire on 31 October 2025.
(10)For driving whilst disqualified (CC 2021/12167), I impose a sentence of five months imprisonment commencing on 1 July 2025 and expiring on 30 November 2025.
(11)For dishonestly riding in a motor vehicle without consent (CC 2021/12169), I impose a sentence of eight months imprisonment to commence on 1 August 2025 and expiring on 31 March 2026.
(12)For dishonestly driving a motor vehicle without consent (CC 2021/1123), I impose a sentence of nine months imprisonment commencing on 1 October 2025 and expiring on 30 June 2026.
(13)For driving whilst disqualified from holding or obtaining a licence (CC 2021/1126), I sentence you to five months imprisonment commencing on 1 March 2026 and expiring on 31 July 2026
(14)For obtaining property by deception (CC 2021/1124), I impose a sentence of three months imprisonment commencing on 1 June 2026 and expiring on 31 August 2026.
(15)That is an overall sentence of four years to commence on 1 September 2022 and to end on 31 August 2026. I set a non-parole period to commence on 1 April 2022 and end on 31 March 2024.
[His Honour then spoke directly to Mr Connors]
108․Mr Connors, that is a lot of words. You have been around the Courts, so you probably know much of what I was saying. This is a very sad day for me, but I think there is some hope if you can see some way through this to some hope. It was very upsetting – I hope for you, but also for me – that just a few days after you were given a Treatment Order and committed yourself to rehabilitation, you went and committed further offences. No doubt seeing your brother in hospital had some effect on that, but it is inexcusable.
109․Unfortunately, because of the serious nature of your early offending, there is a lot of prison time there, but because you have served a good part of that time we have been able to make it less serious than it would otherwise be. I have determined that there is a degree of concurrency with these offences, as well as taking into account the time that you have spent in custody, and I think that, given the efforts that you have made, and as an encouragement to you, I have reduced the non-parole period quite considerably. It is slightly less than half of the total sentence, so you are able to apply for parole at the end of March the year after next.
110․I strongly encourage you to do Solaris, to continue to engage with Yeddung Mura. There are other courses and other support that you can have. This is an opportunity. It will be a long time before you are out of custody, but it is an opportunity for you to get yourself in the right space. It is hard in custody, I know that, but you are showing good signs at the moment and you just need to be strong.
111․I hope this will be the start of the new Stanley Shane Connors that will be a father to his son and be a useful member of the community so that you can promote the culture to which you are committed and the standing of your community and have a good life beyond that, but it will be hard in between and if you are not strong then you will be back in custody and there is nothing more to be said to that. You may be seated.
| I certify that the preceding one hundred and eleven [111] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge Associate: J Liu Date: |
0
41
8