R v CR (No 3)
[2022] ACTSC 170
•12 July 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v CR (No 3) |
Citation: | [2022] ACTSC 170 |
Hearing Date: | 12 July 2022 |
DecisionDate: | 12 July 2022 |
Before: | Elkaim J |
Decision: | (i) The good behaviour orders imposed by Murrell CJ on 14 May 2021 are cancelled. (ii) The offender is re-sentenced as follows: (iii) For offence CC1116 of 2019, joint commission aggravated robbery, the offender is sentenced to 15 months’ imprisonment to commence today and end on 11 October 2023. (iv) For offence CC1121 of 2019, dishonestly ride or drive a motor vehicle without consent, the offender is sentenced to 4 months’ imprisonment to commence today and end on 11 November 2022. (v) The above terms of imprisonment are suspended with immediate effect on condition that the offender enter into a good behaviour order, on core conditions, for a period of 15 months commencing today. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – breach of good behaviour orders – where offending in breach of good behaviour orders dealt with in Magistrates Court – whether offender should be re-sentenced to a term of full-time custody or suspended sentence with a good behaviour order |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 29 |
Cases Cited: | R v CR [2021] ACTSC 93 R v CR (No 2) [2022] ACTSC 96 R v QH; R v CR [2020] ACTSC 178 |
Parties: | The Queen ( Crown) CR ( Offender) |
Representation: | Counsel ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) |
| Solicitors J Epstein ( Crown) B Rutzou ( Offender) | |
File Numbers: | SCC 94, 95 of 2020 |
Elkaim J:
On 7 July 2020 CR was sentenced by Murrell CJ to 18 months’ imprisonment, suspended after four months and two weeks (R v QH; R v CR [2020] ACTSC 178).
As can be seen from the case name he was sentenced together with another young person. The sentences arose from a disturbance generated by detainees at Bimberi Youth Justice Centre on 26 August 2019.
The specific offences and the sentences imposed are set out at [109] of the above reasons for sentence:
109. I impose the following sentences:
(a) Count 1: joint commission of aggravated robbery—14 months’ imprisonment (reduced from 18 months’ imprisonment), from 11 August 2020 to 10 October 2021, suspended from 24 August 2020 on entering into a good behaviour order until 24 February 2022.
(b) Count 2: damage property—$300 fine.
(c) Count 3: aid attempt to escape—three months’ imprisonment (reduced from four months’ imprisonment) from 11 April 2020 to 10 July 2020.
(d) Count 4: dishonestly ride in motor vehicle—three months’ imprisonment (reduced from four months’ imprisonment) from 11 June 2020 to 10 September 2020, suspended from 24 August 2020 on entering into a good behaviour order until 24 February 2021.
(e) Count 5: common assault—six-month good behaviour order.
(f) Count 6: common assault—12-month good behaviour order.
(g) Count 7: common assault—12-month good behaviour order.
(h) Count 8: unlawful possession of stolen property—$100 fine.
(i) Count 9: interfere with fire extinguisher—$300 fine.
110. This is a total sentence of 18 months’ imprisonment, suspended after four months and
two weeks on good behaviour orders.
CR breached the good behaviour orders included in the above sentences, so that he was brought back before Murrell CJ on 14 May 2021 (R v CR [2021] ACTSC 93).
The breaches arose from driving offences that had occurred on 17 November 2020. He was sentenced for these offences in the Childrens Court on 22 April 2021. After noting that “the sentences that were imposed for the breach offences were substantial”, Murrell CJ cancelled the previous good behaviour orders and re-sentenced the offender as follows:
22.The good behaviour orders associated with Counts 1 and 4 are cancelled, and I resentence the young person as follows.
(a) Count 1—12 months’ imprisonment, from 14 May 2021 to 13 May 2022.
(b) Count 4—three months’ imprisonment, from 14 May 2021 to 13 August 2021.
23. Both sentences are fully suspended on the young person entering 12-month good behaviour orders, which are subject to the following additional conditions:
(a) accept the supervision of the Director-General of Child and Youth Protection Services for a period of at least six months and for such further period (within the period of the good behaviour orders), as is deemed appropriate by the Director-General; and
(b) report to Child and Youth Protection Services by 4 PM on 14 May 2021.
24. In relation to Counts 5 to 7, I note the breaches, but take no further action.
On 21 April 2022 CR appeared before McCallum CJ for breaches of good behaviour orders that had originally been imposed by Murrell CJ on 7 July 2020. Her Honour gave her decision on 2 May 2022 (R v CR (No 2) [2022] ACTSC 96).
The breaches had been the subject of separate sentences which, like Murrell CJ, McCallum CJ described as “substantial”.
After noting that the good behaviour orders which had been breached had since expired and having regard to the sentences imposed for the breach offences, her Honour concluded that she was “satisfied in the best interests of this young person and the appropriate response to the breach to take no further action”.
On 24 June 2022 CR appeared in the Magistrates Court where he was dealt with, by Magistrate Lawton, following his plea of guilty to five offences that had occurred on 28 December 2021. It appears from the reasons for sentence that CR had also appeared before Magistrate Campbell at an earlier date.
Magistrate Lawton imposed the following sentences:
(i)Using a carriage service to threaten to cause somebody to fear for their safety: one months’ imprisonment commencing on 28 December 2021.
(ii)Being an unlicensed driver: two months’ imprisonment commencing on 28 December 2021.
(iii)Riding or driving in a motor vehicle without consent: five months’ imprisonment commencing on 28 December 2021.
(iv)Assault: one month’s imprisonment commencing on 25 May 2022.
(v)Intentionally wounding: two years’ imprisonment commencing on 24 June 2022, but to be served by way of an Intensive Corrections Order (an ICO).
The result of the above sentences was that all of the sentences, other than for intentional wounding, had been served prior to 24 June 2022, and that the sentence for intentional wounding, which commenced on 24 June 2022, was to be served by way of an ICO.
CR has appeared before me today because the offences dealt with by Magistrate Lawton amounted to breaches of the good behaviour orders imposed by Murrell CJ on 14 May 2021.
The breaches have been admitted, giving me two options: I can either revoke the suspended sentences and impose the terms of imprisonment on a full-time custody basis. Alternatively, I can resentence the offender to terms of imprisonment but suspend those terms on condition he enter a further good behaviour order.
The Crown, in describing the options available to me, said that s 29 of the Crimes (Sentencing) Act 2005 (ACT) did not prevent the use of the second option notwithstanding that the offender is currently subject to an ICO.
As seen by Magistrate Lawton’s orders, the offender is currently serving an ICO. This means that he is under the supervision of Corrective Services. This is probably the best form of supervision that can be imposed on a young person, recently reaching adulthood, and who obviously needs a good deal of oversight and guidance.
It was pointed out that Magistrate Lawton had not taken into account, in his sentencing, that the offender had been on conditional liberty when he committed the offences that were before the magistrate. Nevertheless it was accepted that he was dealt with appropriately by the magistrate having regard to the seriousness of the offences.
I was told there had been no breaches of the ICO since its imposition.
In relation to the original offences their detail and objective seriousness are aptly described in the judgments of Murrell CJ.
The Crown, and this was accepted on behalf of the offender, said that on re-sentencing there should be some reflection of the breach going beyond the original sentences. The Crown, at the same time, recognised the offender’s prospects of rehabilitation and did not urge a return to full-time custody.
Although a good behaviour order operating during the term of the ICO might be seen as requiring a lesser degree of supervision, it is to be remembered that any breach will place the offender in jeopardy of returning to prison.
I make the following orders:
(i)The good behaviour orders imposed by Murrell CJ on 14 May 2021 are cancelled.
(ii)The offender is re-sentenced as follows:
(iii)For offence CC1116 of 2019, joint commission aggravated robbery, the offender is sentenced to 15 months’ imprisonment to commence today and end on 11 October 2023.
(iv)For offence CC1121 of 2019, dishonestly ride or drive a motor vehicle without consent, the offender is sentenced to 4 months’ imprisonment to commence today and end on 11 November 2022.
(v)The above terms of imprisonment are suspended with immediate effect on condition that the offender enter into a good behaviour order, on core conditions, for a period of 15 months commencing today.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: |
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