R v Curtis (No 4)
[2018] ACTSC 166
•4 April 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Curtis (No 4) |
Citation: | [2018] ACTSC 166 |
Hearing Date: | 4 April 2018 |
DecisionDate: | 4 April 2018 |
Before: | Mossop J |
Decision: | See [30] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – breach of good behaviour order – specific deterrence – good behaviour order cancelled – re‑sentenced – sentenced to imprisonment |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), ss 65, 66 Crimes (Sentence Administration) Act 2005 (ACT), ss 110, 116 |
Cases Cited: | Director of Public Prosecutions v Cooke [2007] NSWCA 2; 168 A Crim R 379 R v Curtis [2013] ACTSC 291 R v MB [2014] ACTSC 370 |
Parties: | The Queen (Crown) Matthew Curtis (Offender) |
Representation: | Counsel T Hickey (Crown) B Shelton (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Offender) | |
File Number: | SCC 92 of 2013 |
MOSSOP J:
Introduction
Under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT), I am dealing with a breach, or breaches, of a good behaviour order imposed as part of a partially suspended sentence.
Sentencing history
In June 2013, the offender assaulted his then partner by punching her a number of times, causing her bruising. He was charged with assault occasioning actual bodily harm. He pleaded guilty. On 16 December 2013, Refshauge J sentenced him to 12 months imprisonment, suspended immediately after backdating it to take into account six months and 11 days of pre-sentence custody: see R v Curtis [2013] ACTSC 291.
In April 2015, within the period of the good behaviour order, the offender was found in possession of a number of electronic and other items suspected of being stolen. He pleaded guilty to that offence and was sentenced in the Magistrates Court. The conviction placed him in breach of the original sentence. On 26 February 2016, Refshauge J re-sentenced the offender in the same terms, namely, to 12 months imprisonment, suspended immediately, with a good behaviour order for 18 months and a community service condition requiring performance of 40 hours of community service work: see R v Curtis (No 2) [2016] ACTSC 34.
Between March and October 2016, the offender failed to comply with his obligation to attend a community service work induction. As a result, breach proceedings were initiated. On 27 April 2017, Refshauge J found the breach proved and re-sentenced the offender to a term of 12 months imprisonment, suspended, with a 12 month good behaviour order which was to operate from 27 April 2017 until 26 April 2018, except with the community service condition that he do 30 hours of community service work. That amendment was made because he completed 10 hours of the previous sentence: see R v Curtis (No 3) [2017] ACTSC 101.
New breaches of good behaviour order
On 10 July 2016, within the period of the good behaviour order imposed as a result of the decision in R v Curtis (No 2), the offender and a co‑offender stole two shopping baskets full of groceries and two shopping bags containing groceries from a Coles supermarket. Later, on 14 and 15 July 2016, he stole shopping baskets full of groceries from the supermarket. He was charged, pleaded guilty to those offences and was sentenced on 24 August 2017.
On 28 July 2016 and 31 July 2016, the offender and a co‑offender again stole two shopping baskets full of groceries from a Coles supermarket. He was charged and pleaded guilty to those offences. He was sentenced by the Magistrates Court on 24 August 2017 for the five minor thefts. He was sentenced to four months imprisonment, suspended after two, on entering a good behaviour order for a period of 12 months.
Those convictions would have put him in breach of the good behaviour order imposed by Refshauge J in R v Curtis (No 2) except for the fact that it was cancelled by the decision in R v Curtis (No 3). It is not necessary for the purposes of this case to work out the question of whether it is possible, in light of s 116 of the Crimes (Sentence Administration) Act, for a person to be dealt with for a breach of a good behaviour order which has previously been cancelled. This is a matter which will require some attention in a case where it is fully argued, and may well require attention from the legislature to work out the meaning of the words in s 116.
Following those events, on 26 March 2017 the offender, despite having been served with a protection order prohibiting him from attending his ex-partner's address, went to her home address and sat in his car parked on the bridge of the entrance driveway. His ex‑partner saw him in the car. That would have put him in breach of the good behaviour order imposed in R v Curtis (No 2) except for the fact that it had been cancelled as a result of the decision in R v Curtis (No 3).
Several weeks later, on 10 May 2017, he again drove his car into his ex‑partner's unit complex to the visitor car parking before turning around and leaving. The offender was charged and pleaded guilty to these offences. He was sentenced by the Magistrates Court on 24 August 2017, given a 12 month good behaviour order in relation to the events on 26 March 2017, and a 14 month good behaviour order in relation to the events on 10 May 2017. The events on 10 May 2017 put him in breach of the good behaviour order imposed as a result of the decision in R v Curtis (No 3).
Between May and June 2017, the offender ignored his obligation to do community service work under the good behaviour order imposed as part of R v Curtis (No 3) and failed to do any of his 30 hours of community service work. Breach proceedings were initiated. The proceedings were adjourned, including on the occasions following August 2017 that they were before me, so as to give the offender a chance to complete the 30 hours of community service work remaining. He has done that.
On 5 August 2017, within the period of the good behaviour order imposed as part of R v Curtis (No 3), following a domestic altercation, the offender ran out of his house and got into his car and deliberately drove it on the grass verge towards his partner's brother who was standing near a Colorbond fence. The brother jumped out of the way and the car collided with the fence. The offender then drove the car into the front yard and ran over some children's play equipment before driving away.
Police were called and early the next morning, pulled him over nearby. He was breath tested and had a reading of .095. His provisional licence was at that time suspended. He was charged and pleaded guilty to driving whilst suspended, dangerous driving, and a drink driving charge, all of which put him in breach of the good behaviour order imposed as part of R v Curtis (No 3).
In relation to the dangerous driving offence, he was given a sentence of four months imprisonment, suspended after one month on entering into a good behaviour order for a period of 18 months. The period he was required to serve ran from 19 March 2018 until 18 April 2018
Finally, on 17 January 2018, within the period of the R v Curtis (No 3) good behaviour order, the offender was found driving while his licence was suspended and in breach of his bail conditions. He pleaded guilty and on 19 January 2018 was sentenced in the Magistrates Court to three months imprisonment, fully suspended on entering into a good behaviour order for 12 months. That conviction placed him in breach of the good behaviour order imposed as part of R v Curtis (No 3).
Subjective circumstances
The offender's subjective circumstances have been described in some detail in each of Refshauge J's three previous decisions. I will not repeat them or the criminal history of the offender in any detail here. Counsel for the offender has drawn attention to the following matters as being particularly relevant to the exercise I am undertaking.
The offender is currently 22 years of age. His father passed away when he was nine years old. His mother's new partner was violent towards him. He started consuming alcohol at 12 years of age. He was consuming methylamphetamine prior to the assault occasioning actual bodily harm in June 2013. He has been able to rehabilitate himself to some extent and abstain from consuming methylamphetamine with the help of drug and financial counselling. Prior to his being sentenced to imprisonment on 19 March 2018, he was engaging with a psychologist. He is in a relationship and he and his partner have one child as a result of that relationship who is two years old.
His partner is not working and, as a consequence, was dependent on Mr Curtis for income prior to him being sentenced to full-time imprisonment. After his release from custody in October 2017, he was able to secure work as a kitchenhand at a restaurant in Canberra. After a period off work because of injury, he was terminated from that employment but was able to regain employment on a casual basis as a kitchenhand at a restaurant in Tuggeranong.
Consideration
Counsel for the accused submitted that although the offender has continuing criminal convictions, he has no offences of violence since June 2013 – so long as the aggravated dangerous driving charge is not put into that category. The submissions emphasise his youth and the prospects of rehabilitation, as well as the significance of him being able to remain out of custody and in employment so as to support his partner and young child.
The authorities recognise that the imposition of suspended sentences as a sentencing option will be brought into disrepute if courts fail to act upon clear breaches of the good behaviour order, imposed as a condition of the suspension of sentence, by imposing the suspended penalty of imprisonment: see, for example, Director of Public Prosecutions v Cooke [2007] NSWCA 2; 168 A Crim R 379 at [23]‑[24], and R v MB [2014] ACTSC 370 at [8]‑[9]. The alternatives provided by s 110 of the Crimes (Sentence Administration) Act are to cancel the good behaviour order and either, impose the suspended portion of the sentence of imprisonment, or to re-sentence the offender.
In considering what course to adopt, it is relevant to take into account:
(a) the nature and seriousness of the conduct which constitutes the breach;
(b) whether there would be a marked disproportion between the seriousness of the conduct involving the breach and the length of the sentence to be activated; and
(c) whether the offender has been compliant with probation conditions and participated in programs while subject to the suspended sentence.
In the present case, in deciding which course to adopt, it is relevant to take into account not only those matters which clearly involve breaches of the good behaviour order imposed as a result of the decision in R v Curtis (No 3), but also those earlier acts where, because of the prior cancellation of the good behaviour order imposed as a result of R v Curtis (No 2), there is some uncertainty as to whether or not they amount to a breach which can be acted upon.
Taking into account the rather complicated history, and also the issue that would arise in relation to the operation of s 110 of the Crimes (Sentence Administration) Act if imposing the suspended sentence as to whether the whole of the sentence is imposed and backdated or whether only the suspended portion of it is then imposed, I consider it appropriate to re-sentence the offender in a manner which appropriately reflects his circumstances.
It is clear that Refshauge J expended considerable energy and granted the offender considerable leniency as a result of the three decisions which gave him the benefit of a suspended sentence order. Unfortunately, the offender has since 2013 demonstrated a pattern of offending conduct. As counsel for the offender has pointed out, this has not included offences of violence in the strict sense, such as those which had occurred prior to 2013, but the history is such that it demonstrates that the offender has not taken the opportunity given to him by Refshauge J under the suspended sentences that were imposed.
Although he remains a young man and rehabilitation remains an important consideration, given his history of offending since the original sentence, the emphasis must shift from rehabilitation to specific deterrence and punishment. I have taken into account the letter which was tendered at the hearing this morning. I understand the positives pointed out in that letter: the offender's motivation to support his partner, and his capacity to obtain employment as a kitchenhand when released into the community in order to do so. However, due to his disposition or attitude, he has in the past been unable to conduct himself lawfully. Thus in relation to the future, hope must be tempered by past experience.
I accept that a further period of incarceration will have an impact upon his partner and child. That is a common, but tragic, consequence of his offending conduct.
I will re-sentence the offender so that he is required to serve three more months of the outstanding five months and 19 days of the sentence. There will, because he is serving an existing sentence, be a small amount of concurrency with that sentence. The effect of the re-sentence will be that he will have served nine months and 11 days of the 12 month sentence which I will impose. That provides an appropriate balance between punishment and specific deterrence and, having regard to his youth and the hope, at least, that he can change his life to avoid further significant offending conduct, a degree of leniency.
There is an issue as to the operation of s 65 of the Crimes (Sentencing) Act 2005 (ACT) in circumstances where he is re-sentenced to a sentence of imprisonment and is serving an existing sentence. Section 66 of the Act requires s 65 to be applied as if the Court that imposes the new sentence "had sentenced the person to imprisonment for a term equal to the total terms of the existing sentence and the primary sentence." That involves the addition of the existing and new sentence, even when they are to be served concurrently, expanding the range of circumstances in which a non‑parole order must be set.
It is not clear that the legislature considered in the drafting of s 66 of the Crimes (Sentencing) Act its application in circumstances where existing and new sentences were concurrent, but the language is more consistent with a requirement that the terms be added together in order to determine whether the 12 month threshold for the imposition of a non-parole period is past. Given the limited argument on this point, I have adopted the approach more consistent with the language of the section, namely that the terms are to be added for the purposes of the section even if served concurrently.
I note however, that had the alternative interpretation been adopted, I would in any event have achieved the same substantive outcome by the use of a suspended sentence.
Orders
As a consequence, the orders of the Court are:
1.The good behaviour order imposed on 27 April 2017 is cancelled.
2.The offender is re-sentenced to 12 months imprisonment, commencing on 23 September 2017 and ending on 22 September 2018.
3.The non-parole period is from 23 September 2017 to 3 July 2018.
| I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Mossop. Associate: Date: 4 July 2018 |
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