R v Daquinta (No 2)
[2019] ACTSC 19
•29 January 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Daquinta (No 2) |
Citation: | [2019] ACTSC 19 |
Hearing Date: | 29 January 2019 |
DecisionDate: | 29 January 2019 |
Before: | Mossop J |
Decision: | See [12] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – trafficking in a controlled substance – breach of a good behaviour order – damaging property – negligent driving – breach of a protection order – offence committed at the end of a good behaviour order – good behaviour order and suspended sentence in the Magistrates Court – absence of further offending conduct – unavailability of periodic detention orders |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), s 110(2) Crimes (Sentencing) Act 2005 (ACT) |
Cases Cited: | R v Daquinta [2014] ACTSC 131 |
Parties: | The Queen (Crown) Daniel Daquinta (Offender) |
Representation: | Counsel P Dixon (Crown) J Ong (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 218 of 2013 |
MOSSOP J:
Daniel Daquinta was charged with trafficking in a controlled substance, namely, methylamphetamine (CC2013/4228). On 24 April 2014, he was sentenced by Refshauge J: see R v Daquinta [2014] ACTSC 131. He was sentenced to 30 months imprisonment. That sentence was suspended after he had served six months and three weeks by way of periodic detention. He was required to enter an undertaking to be of good behaviour for three years from the date of sentence.
Between 3 and 26 February 2017, Mr Daquinta breached the conditions of a protection order and hence committed an offence which put him in breach of the good behaviour order imposed by Refshauge J. For this offence (CC2017/3814), on 18 July 2017 he was given a 12 month good behaviour order by a magistrate. On 8 September 2017, I dealt with the breach of the good behaviour order imposed by Refshauge J by resentencing Mr Daquinta to a good behaviour order of two months. Although the reasons that I gave at the time were not before me today, it is clear that I had regard to the fact that the breach of the protection order offence occurred at the very end of the 36 month good behaviour order imposed by Refshauge J. The bench sheet records matters which indicate that I proceeded as I did because it was not open to reimpose the period of periodic detention because that was no longer a sentence which was available. It was for that reason and the fact that the period of periodic detention had already been served that I imposed on the resentence a sentence which, taken out of context, would have been manifestly too lenient.
Mr Daquinta was, however, unable to comply with that short good behaviour order, committing two offences on 26 October 2017. Those offences occurred at a time when he was affected by methylamphetamine. They involved reversing his vehicle into an exit gate of a self-storage facility so as to knock the gate off its rails and knocking it completely down. This was the offence of damaging property (CC2018/1701). He then reversed his vehicle onto the road in circumstances where his vision of oncoming traffic and pedestrians was obscured and hence there was a significant risk of injury to him and members of the public. That gave rise to the charge of negligent driving (CC2018/1704).
On 19 November 2018, that is more than a year after the offences in question, he was sentenced in the Magistrates Court. On the damage property charge, he was given a six‑month suspended sentence, a good behaviour order of two years and a reparation order which required him to pay $14,276 in relation to the damage to the gate. On the negligent driving charge, he was convicted and given a two-year good behaviour order. He forfeited the security given in relation to his good behaviour order imposed by the Magistrates Court on 18 July 2017.
I am required to either impose the suspended sentence or to resentence the offender. Having regard to the passage of time and the nature of the offending conduct, I consider it appropriate to resentence the offender. Counsel for the offender said that there was no explanation for the offender’s conduct at the self-storage facility other than that he was under the influence of methylamphetamine.
He has participated in residential rehabilitation programs in the past. Most recently, between June and August 2018 he completed the Karuna program at Karralika.
The pre-sentence report prepared in relation to the most recent Magistrates Court proceedings describes him as follows.
Mr Daquinta is a 32-year-old man who appeared to have turned to drug use after the separation from his partner and children. Mr Daquinta would appear to currently have a supportive relationship with his current partner, although reconciliation with his ex-partner in relation to access to his children would seem to be of high importance to him.
Mr Daquinta’s current risk of general reoffending is assessed as medium. His current offences clearly indicate his need to engage with appropriate targeted interventions to develop the strategies and resources to manage life’s stressors without resorting to illicit substance use and offending behaviour.
I was told that the relationship referred to in the pre-sentence report is no longer in existence. I was also told that he proposes to attempt to return to work in the construction industry with the assistance of a union-run program.
There is no evidence of him having committed further offences in the period since the October 2017 offending.
Having regard to:
(a)the fact that as at the time of February 2017 offending he was close to the end of the three-year good behaviour order;
(b)the completion of the residential rehabilitation between June and August 2018;
(c)the absence of further offending conduct since October 2017; and
(d)the existence of a suspended sentence and good behaviour orders imposed by the Magistrates Court,
I do not consider that the purposes of sentencing set out in the Crimes (Sentencing) Act 2005 (ACT) require that he serve further time in prison or that he be subject to a good behaviour order as a result of the 2013 offending.
The position is the same as existed in September 2017 insofar as it is not possible now to impose a backdated sentence of periodic detention because that is not a penalty presently available. I therefore will proceed in the manner that I did in September 2017 by resentencing the offender in the light of the service of the previous sentence but without reimposing the already served portion of the previous sentence. Further, because of the factors to which I have referred, it is appropriate to resentence him in a manner which imposes only limited further obligations on him. As a consequence I will impose a minimal further period during which he will be subject to a good behaviour order.
The orders of the Court are:
1. Pursuant to s 110(2) of the Crimes (Sentence Administration) Act 2005 (ACT), the good behaviour order entered into as a consequence of the orders of Mossop J on 8 September 2017 is cancelled.
2. The offender is resentenced as follows:
a. the offender is convicted of trafficking methylamphetamine (CC2013/4228) between 5 March 2013 and 20 May 2013,
b. the offender is required to enter into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act for a period of one month from today.
| I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 26 February 2019 |
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