R v Cuthel
[2016] ACTSC 91
•26 February 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Cuthel |
Citation: | [2016] ACTSC 91 |
Hearing Date: | 25 February 2016 |
DecisionDate: | 26 February 2016 |
Before: | Penfold J |
Decision: | See [19] – [24]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – proceedings for breach of good behaviour order – three separate good behaviour orders for different periods made in court – order implemented by single good behaviour order for longest period specified – breach occurred after first two good behaviour orders would have expired – re-sentencing necessary to ensure offender gets benefit of compliance with first two good behaviour orders as specified by court – breach offence did not indicate return to serious offending – offender otherwise making good progress with rehabilitation – offender re-sentenced – outstanding sentences again suspended subject to new good behaviour order. |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), s 86(1) |
Parties: | The Queen (Crown) Dylan Roger Angus Cuthel (Offender) |
Representation: | Counsel Ms M Moss (Crown) Mr A Doig (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Offender) | |
File Numbers: | SCC 270 of 2011; SCC 304 of 2011; SCC 170 of 2013 |
Introduction
On 7 January 2014, I sentenced Dylan Cuthel for a burglary and associated theft, and re-sentenced him for 18 earlier offences for which the original sentences had been suspended subject to good behaviour orders. All but two of those earlier offences were also burglaries or thefts, the other two being for damaging property and obtaining property by deception.
The outcome of that sentencing process was that Mr Cuthel was to remain in custody until 2 June 2014, after which sentences relating to a total of 13 offences, with a total outstanding period of 19 months imprisonment, were suspended subject to three different good behaviour orders for different periods. Those periods were to expire:
(a)in respect of the first five of the outstanding sentences, on 2 December 2014;
(b)in respect of the next four of the outstanding sentences, on 2 June 2015; and
(c)in respect of the last four of the outstanding sentences, on 2 January this year.
However, despite the orders being made and recorded by the Court in clear terms, they were not implemented by the preparation of three separate good behaviour orders, and instead Mr Cuthel was required to sign a single good behaviour order for 19 months applying to all 13 offences.
Breach of good behaviour orders
Mr Cuthel has since re-offended on two separate occasions:
(a)on 6 April 2015, in New South Wales, he committed an offence of driving with an illicit drug, specifically methamphetamine, in his system; and
(b)on 3 July 2015, in Queensland, he committed three traffic offences, curiously described as "drive uninsured vehicle, vehicles used on road must be registered, and did drive over general alcohol limit, but not over middle alcohol limit".
In each State, he was convicted of the relevant offences, fined and subjected to a licence disqualification.
Under s 86(1) of the Crimes (Sentence Administration) Act 2005 (ACT), core condition (a) of a good behaviour order is that the offender must not commit an offence against, relevantly, a law of a State that is punishable by imprisonment. The only one of Mr Cuthel's new offences that carried an imprisonment penalty was the Queensland drink-driving offence.
Accordingly, the only one of those offences that amounted to a breach of the good behaviour order was the Queensland drink-driving offence committed on 3 July 2015. By that point, only the last of the three good behaviour orders that I made would still have been operative.
By successfully completing the first two good behaviour orders, which were to expire on 2 December 2014 and 2 June 2015, Mr Cuthel would have completed his sentences on 9 of the 13 offences I mentioned earlier, and would be liable now to have only the last four outstanding sentences dealt with on breach of that last good behaviour order.
These facts will require some carefully structured orders aimed at ensuring that, although my orders were not properly implemented in 2014, Mr Cuthel is given the benefit that he was intended to receive from those orders if he complied with his good behaviour obligations for the first 12 months of the suspension period, which is what he did.
The re-offending
The facts of the two recent incidents of offending should be mentioned. Mr Cuthel explained in a letter to the Court, and also to the CADAS reporter, that in April 2015, after some months during which he had been "really good", he had “had a lapse”; that is, he had put himself into an environment where drugs were present and had used ice. He had immediately decided to leave Canberra to ensure that this lapse was not repeated, which he did after receiving approval from his Corrections supervisor. Despite then spending two days in a camping ground attempting to clear the drug from his system, the drug was still present when he was picked up by police in Goulburn several days later. The pre-sentence report prepared by Queensland authorities supports Mr Cuthel's claim that he has been free of illicit substances since that occasion, and notes that drug tests in August and September 2015 have come back clean.
The Queensland offences were committed one night after Mr Cuthel had dinner with his uncle, with whom he had been living in Queensland. His uncle, in a written reference, confirmed that at the dinner they had had too much to drink and there had been an argument. Mr Cuthel, said his uncle, had gone to his uncle's home and driven away in his unregistered vehicle in order to avoid seeing his uncle again. Mr Cuthel's uncle, Mr Cuthel's current partner and Mr Cuthel's psychologist all suggest that Mr Cuthel is currently abstaining from alcohol.
In summary, although both examples of re-offending have concerning aspects to them, I am satisfied that neither of them indicates any loss of commitment by Mr Cuthel to his rehabilitation. If anything, each of them may have provided a positive impetus to that rehabilitation.
Rehabilitation progress
Also relevant to Mr Cuthel's rehabilitation prospects is the information before me in the pre-sentence and CADAS reports and in letters from Mr Cuthel, his mother, his partner and his uncle about his current circumstances. Mr Cuthel has been living in Queensland since going there in April last year. As well as receiving support from his uncle, he has formed a new relationship and now lives with his partner and her three young daughters. He has been in full-time employment in the meat industry since September 2015, and quickly found a new position in the industry when he left Warwick and moved in with his partner, who lived in a town some distance away.
Finally, in relation to rehabilitation, the CADAS author identified no immediate need for Mr Cuthel to receive treatment for alcohol or drug abuse, but recommended that he engage with a relapse prevention program.
Sentencing options
My options after finding a breach of a good behaviour order are to impose the suspended parts of the relevant sentences, thus requiring Mr Cuthel to serve those outstanding sentences in full-time custody, or to re-sentence him, which may involve setting either a non-parole period or a further date on which the still un-served part of the sentences would again be suspended.
I do not propose simply to impose the previously suspended sentences. Even if I considered that Mr Cuthel needed to serve further time in custody on any of the outstanding sentences, I would need to re-sentence him to make sure that he receives the benefit of his compliance with the first and second good behaviour orders that I made.
However, the real reason for not imposing the previously suspended sentences is because Mr Cuthel's new offence, the Queensland drink-driving offence, is not such as to justify requiring him to spend another extended period in prison. For that reason I must resile from the warning I gave Mr Cuthel in January last year when, as I have already mentioned, I sentenced him for a new burglary and theft, and also had to re-sentence him for 18 offences on which sentences had been previously imposed and previously suspended.
That warning was to the effect that if I had to re-sentence him again for those offences, I would be setting a non-parole period, and not necessarily a short one, rather than again suspending the outstanding sentences. Certainly that warning would have been implemented if Mr Cuthel had appeared before me having returned again to illicit drug use and having committed further burglaries or thefts. However, in the current circumstances, a further period of full-time custody in the ACT, when Mr Cuthel seems to be doing such a good job of rehabilitating himself in Queensland, would be inappropriate.
Finalising the orders in today's sentencing exercise is complicated by the fact that it is not clear to me, and I have not received any submissions about, whether the effective orders were those I articulated in the January 2014 sentencing process or the orders as entered by court registry staff.
If my orders were effective, then two of the good behaviour orders expired without being breached and the relevant sentences were thereby completed. In that situation, there would in my view be no need, and equally no power, to re-sentence Mr Cuthel for the offences concerned.
On the other hand, if the orders entered in the registry were effective (and certainly the only documentation signed by Mr Cuthel related to those orders) then all the sentences imposed in January 2014 were covered by a single good behaviour order and that order was breached before it expired.
For this reason, I shall deal with all the 13 sentences that were outstanding in June 2014 when Mr Cuthel's sentences were last suspended, but I shall deal with them in several separate stand-alone orders, so that there will be no unpicking needed if the view is taken that the nine sentences that I said were to be covered by shorter good behaviour orders have already expired.
Re-sentencing
Mr Cuthel, please stand. First, Mr Cuthel, I note that the conviction recorded on the Queensland drink-driving offence puts you in breach of a good behaviour order made on 7 January 2014 that expired on 2 January this year. Accordingly, I cancel that good behaviour order, and I shall re-sentence you for the offences to which that good behaviour order applied.
Next, I note the convictions previously recorded on the 13 offences covered by the good behaviour orders made in January 2014.
The sentences that I shall specify for these offences (this is not part of the sentencing order as such) will be for the following periods:
(a)for the first seven burglaries, imprisonment for 18 months, and for the last burglary, imprisonment for 20 months;
(b)for the first two thefts, imprisonment for six months, and for the last theft, imprisonment for eight months;
(c)for the damage property offence, three months imprisonment, and for obtaining property by deception, six months imprisonment.
Obviously there will be significant concurrency among these sentences, as there has been each previous time they have been imposed, and that concurrency will emerge from the specific dates that I shall set out next.
I now sentence you as follows:
(a)For the first five offences:
(i)CC11/7016, a theft, will run from 26 August 2014 to 25 February 2015;
(ii)CC11/3840, a burglary, will run from 26 October 2013 to 25 April 2015;
(iii)CC11/3842, another burglary, will run from 26 December 2013 to 25 June 2015;
(iv)CC11/7006, a theft, will run from 26 December 2014 to 25 June 2015;
(v)CC11/3844, a burglary, will run from 26 February 2014 to 25 August 2015.
That means that, given that backdating, all those sentences have now been completed.
(b)The next order relates to:
(i)CC11/6999, a burglary, the sentence for which will run from 26 April 2014 to 25 October 2015;
(ii)CC11/7001, another burglary, the sentence for which will run from 26 June 2014 to 25 December 2015;
(iii)CC11/7003, a burglary, the sentence for which will run from 26 August 2014 to 25 February 2016; and
(iv)CC13/8970, a theft, the sentence for which will run from 26 January 2015 to 25 September 2015.
So again, all those four sentences have been completed now.
(c)Finally, for the four outstanding offences, and these are the important ones:
(i)CC11/7005, a burglary, the sentence is to run from 26 October 2014 to 25 April 2016;
(ii)CC11/720, damage property, sentence to run from 26 February 2016 to 25 May 2016;
(iii)CC11/3470, obtain property by deception, sentence to run from 26 December 2015 to 25 June 2016; and
(iv)CC13/8969, a burglary, sentence to run from 26 January 2015 to 29 September 2016.
Those four outstanding sentences total 23 months, which I have backdated by 16 months to take account of some time in actual custody, and some time served concurrently with other sentences by compliance with my previous good behaviour orders. That leaves seven months still to be served on those sentences.
Those four sentences, 23 months imprisonment in total, backdated 16 months and leaving seven months to serve, will be suspended with effect from today, and I now order you, Mr Cuthel, to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act for seven months (so that is just covering the last seven months of those sentences). That good behaviour order, which I hope and expect, Mr Cuthel, will be the last one I need to make for you, will be subject only to the core conditions and, in particular, that means I'm not imposing any supervision conditions at this stage.
You will be given a written copy of that new good behaviour order, and it will be read to you by the court officials, but what it means this time, in short, is that for the next seven months you need to keep out of trouble. The other particular thing that you need to know about, one of the core conditions, is that you need to make sure that Corrections here have your up-to-date contact details, so I think you will need to check that the address on the documents you sign today is the right address, and if you change your address after that, in the next seven months, you need to let the court registry know.
But apart from that, the main thing, as you know, is no more offending. If you do commit another offence during that next seven months, as you well know, you will find yourself back here again to be re-sentenced or to be dealt with again for those last seven months and, depending on exactly how you breach the undertaking and, in particular, if you've gone back to your old re-offending ways, you could still find yourself serving some or all of that seven months in full-time custody. Now, as I said, I fully expect that you will make it through those seven months, but I really encourage you to do everything you can to do it. Make yourself a calendar and put it on the wall and tick off day by day, if that's what it takes, but just concentrate for seven months and then you should be home free.
| I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: David Hoitink Date: 10 May 2016 |
4
0
1