R v DD
[2014] ACTSC 348
•6 November 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v DD |
Citation: | [2014] ACTSC 348 |
Hearing Date: | 29 October 2014 |
DecisionDate: | 6 November 2014 |
Before: | Penfold J |
Decision: | See [14] and [15] below |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – 19-year-old man in breach of good behaviour order made when sentence of 27 months imprisonment for aggravated robbery was suspended after being partly served in custody – breaches involved further offending and breach of some supervision conditions of order – offender’s disadvantaged background including lack of father-figure – significance of alcohol and drug abuse in offender’s offending – offender now engaging with drug rehabilitation and about to enter residential rehabilitation program under Magistrates Court sentencing process – offender re-sentenced to 27 months imprisonment, backdated to take account of total of 15 months already spent in custody in respect of aggravated robbery offence – sentence again suspended subject to 12‑month good behaviour order. |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) |
Parties: | The Queen (Crown) DD (Offender) |
Representation: | Counsel Mr S McLaughlin (Crown) Mr J Sabharwal (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (NSW/ACT) Ltd (Offender) | |
File Numbers: | SCC 19 of 2012; SCC 20 of 2012; SCC 175 of 2013 |
Publication Restriction: | Offender’s name and identifying features |
Introduction
DD is before me to be dealt with for breaches of the good behaviour order that I made in November 2013, in conjunction with suspending the outstanding period of a sentence of two years and three months for an aggravated robbery committed in 2011. The sentence was originally handed down in June 2012 and was suspended on 29 November 2012 with 15 months left to serve, subject to a two-year good behaviour order.
Background
On 12 November 2013, I sentenced DD for two aggravated burglaries and associated thefts. Those offences were committed before the 2011 aggravated robbery, and were not in breach of the 2012 good behaviour order, but DD had in fact breached that earlier good behaviour order by non-compliance with its residence and curfew conditions, as well as by committing several further offences that were dealt with in the Magistrates Court.
Because of those other breaches, I cancelled the 2012 good behaviour order and re-sentenced DD for the aggravated robbery. The end result of that sentencing was that only the aggravated robbery sentence remained outstanding, and it was re-imposed and again suspended, still with 15 months left to serve, and this time subject to an 18-month good behaviour order.
Since then, DD has breached that most recent good behaviour order by further offending, the first offence having been committed less than a week after he was released on the good behaviour order.
In the Magistrates Court, DD has been dealt with for the following offences:
(a)an affray committed on 17 November 2013;
(b)an attempted take motor vehicle without consent committed on 27 November 2013;
(c)a minor theft committed on 31 January this year;
(d)a fail to appear after bail undertaking committed on 25 February this year; and
(e)a burglary and theft committed on 6 March this year.
He has been sentenced to a total of six months imprisonment for the motor vehicle, minor theft and fail to appear offence, which has been finalised by time served.
A deferred sentence order has been made in the Magistrates Court in respect of the affray, burglary and theft offences. DD is to enter rehabilitation at Karralika later this month, and must appear before the Chief Magistrate late next year for those sentences to be finalised. DD has been in custody since 18 March this year.
Offender’s circumstances
DD has a shocking criminal history, especially for such a young man. The most recent version of his ACT criminal history covers 11 pages and identifies 58 different matters dealt with by the courts, many of which are burglaries, thefts, including motor vehicle thefts, assaults and a variety of other offences, most of which involved some form of dishonesty.
DD is an Aboriginal man now aged 19. At the last sentencing hearing I outlined his troubled childhood and adolescence, the fact that he has never had contact with his father and has a somewhat difficult relationship with his mother (who has struggled to provide adequate care for him over the years), his educational difficulties, and his history of alcohol and drug abuse since the age of about 13. I note that in 2012 he was assessed by a psychologist as suffering mild mental retardation, with particular difficulties in verbal reasoning.
At the 2013 sentencing hearing there was evidence of DD's participation in an Indigenous Athlete Talent Program which identified his significant natural sporting talent, with particular reference to football of various kinds and basketball. It is not clear, however, that that assessment opened up any particular opportunities for DD, or it may be that he did not take advantage of such opportunities.
There is no doubt that alcohol and drug abuse have been central to DD's offending behaviour, and he has in the past been ambivalent at best by alcohol and drug rehabilitation options. There has been a series of less than comforting Pre‑Sentence Reports provided this year in relation to DD's behaviour and attitudes. However, the most recent Pre‑Sentence Report indicates that he has begun to engage with a drug and rehabilitation program and, as mentioned, he is shortly to enter residential rehabilitation.
This is particularly important since the Pre‑Sentence Report author assesses DD's drug dependence as a specific and significant factor in his current high risk of re-offending. Since it appears that DD may now be at the point where he has a real chance of achieving rehabilitation, I do not propose to cut across the Chief Magistrate's deferred sentence order.
Sentence
DD, please stand. I note the breach of the good behaviour order I imposed last year constituted by your conviction for several offences in the Magistrates Court recently.
I cancel that good behaviour order, and I re-sentence you to the same sentence of two years and three months imprisonment for the 2011 aggravated robbery, this time backdated to 6 August 2013 to take account of 12 months originally served in custody, and a further three months to recognise some of the time you have spent in custody since March this year. That leaves 12 months still to serve, which I suspend with immediate effect.
I now order you, DD, to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 12 months. The good behaviour order is subject to the conditions:
(a)that you accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director‑General or delegate (that will be your Corrective Services supervisor); and
(b)that you undertake such counselling, courses, programs or treatments as directed by your supervising officer.
You will be given a written copy of the good behaviour order, and it will be read to you by the court officials but, in short, what it means is that for the next 12 months you need to keep out of trouble, keep in close contact with Corrective Services, and do as they tell you. If you commit another offence during the next 12 months, you may find yourself back before this Court to be re-sentenced yet again for the robbery in 2011. Depending what you have done this time, you could easily be back in custody for some or all of that remaining 12 months.
Please have a talk to Mr Sabharwal about the significance of the orders that I have just made, and I know Mr Sabharwal will be happy to talk to you about this, but I just want to emphasise to you, DD, that what I have done is on top of what the Chief Magistrate did yesterday. You have to comply with the deferred sentence order that was made yesterday, and you have to comply with the good behaviour order that I have just made now.
Basically, complying with both of those orders will amount to the same thing. Do not re-offend, do not get drunk, do not use drugs, and work hard at your drug rehabilitation. If you can do that for the next 12 months, then you will have finally finished at least with the sentence for the 2011 aggravated robbery.
You may sit down.
| I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Date: |
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