R v DD (No 2)
[2016] ACTSC 178
•6 July 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v DD (No 2) |
Citation: | [2016] ACTSC 178 |
Hearing Date: | 6 July 2016 |
DecisionDate: | 6 July 2016 |
Before: | Penfold J |
Decision: | See [18] – [19] below. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – breaches of good behaviour order made when sentence of imprisonment was suspended after being partially served in custody – breaches involved further offending – young offender at time of initial offence – multiple breaches of original good behaviour order – significant criminal history – significance of drug and alcohol abuse in offending – offender re-sentenced – sentence of imprisonment backdated to account for time previously served and to allow some concurrency with other sentences. |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), s 110(2) Crimes (Sentencing) Act 2005 (ACT), ss 64(2), 133B |
Cases Cited: | R v DD [2013] ACTSC, Penfold J, 12 November 2013 R v DD [2014] ACTSC 348 |
Parties: | The Queen (Crown) DD (Offender) |
Representation: | Counsel Mr S McLaughlin (Crown) Mr J Moffett (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (NSW/ACT) Limited (Offender) | |
File Numbers: | SCC 175 of 2013; SCC 19 of 2012; SCC 20 of 2012 |
The offence
In June 2012 I sentenced DD for an aggravated robbery committed in 2011. That robbery involved four young offenders, armed with two rifles and a weapon resembling a meat cleaver, holding up a service station around midnight.
The sentence of 27 months was suspended in November 2012 with 15 months left to serve, subject to a good behaviour order. The good behaviour order was breached by non-compliance with its residence and curfew conditions,[1] and in November 2013 it was cancelled. At that time I re-sentenced DD, again suspending the sentence with 15 months left to serve, and making another good behaviour order. That good behaviour order was breached by a series of relatively minor offences dealt with in the Magistrates Court, for which DD was sentenced to a total of six months, represented by time served. In November 2014, I cancelled that good behaviour order and re-sentenced DD to the same 27 months imprisonment, backdated 15 months to recognise not just the 12 months originally served but also a further three months, representing some of his time in custody on the more minor offences, and thus leaving 12 months to serve. That was again suspended, subject to a 12-month good behaviour order.
Last year, DD was dealt with in the Magistrates Court for three more offences, committed on two occasions, all of which constituted breaches of that good behaviour order.
On 23 March 2015 he failed to appear in the Magistrates Court, in breach of a bail undertaking, for which he was sentenced to three months imprisonment expiring on 3 August this year.
On 4 April last year, he committed offences of going equipped for theft and unlawful possession of stolen property. For those offences he was sentenced to eight months imprisonment and two months imprisonment, to run concurrently and specified in his criminal history as expiring on 31 August this year (although there is some confusion about that because the term of the sentence, and the dates between which it is to be served as identified on the criminal history, did not align).
Proceedings to deal with those breaches were adjourned to await the outcome of DD's trial on a number of further offences also alleged to have been committed during the period of the good behaviour order that I made in 2014.
This morning that trial was concluded, with the trial judge finding DD guilty of one offence each of aggravated burglary and theft committed in March 2015, and recording convictions on each of those offences.
Thus, DD has breached the good behaviour order I made in November 2014 by the commission of five further offences during the term of the good behaviour order. It is accordingly necessary that I again cancel that order and deal with DD.
As indicated, the aggravated robbery sentence has now been suspended three times, and three times DD has been unable to complete the period of the good behaviour order without breaching that order. Furthermore, although the good behaviour order periods have been reduced at each re-sentence, the breaches have become more serious. The first breach was related to non-compliance with supervision conditions, the second breach was related to the commission of relatively minor offences, but the current breach has included the commission of relatively serious offences, although still not as serious as the original aggravated robbery.
For present purposes, it is unnecessary to go into any details about the circumstances of the new offences, and the information before me about the offences dealt with in the Magistrates Court is in any case scant. The aggravated burglary and theft dealt with by the trial judge (at [7] above) seemed to have been a relatively routine burglary of domestic premises and associated theft, although perhaps with more thorough searching of the house than sometimes occurs. The theft involved a box belonging to one of the victims, and valuables contained in it.
DD has been in custody since the first half of last year and is currently in custody in respect of sentences imposed in the Magistrates Court, which expire either on 3 or 31 August this year. He has served the non-parole period set for those sentences and, in theory, he could apply for parole at any time. I note that he is also due to appear in the Supreme Court on 9 September this year to be sentenced for the aggravated burglary and theft.
Evidence
The parties tendered a large volume of material relating to the history of this sentencing process.
I have already outlined a basic chronology and see no need to expand on most of the other material. I note, however, that when I re-sentenced DD most recently (R v DD [2014] ACTSC 348), my comments on his subjective circumstances included the following:
DD has a shocking criminal history, especially for such a young man. ...
DD is [a young] Aboriginal man ... 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.
...
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 [about] 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 alcohol rehabilitation program, and as mentioned, he is shortly to enter residential rehabilitation.
So that was 2014. It appears now that any residential rehabilitation undertaken by DD since that last re-sentence was not particularly successful.
In the light of DD's breaching of all three good behaviour orders so far made in relation to the 2011 armed robbery, and the fact that he is shortly to be sentenced for the more recent aggravated burglary and theft, which I imagine is also likely to result in some full-time custody, I cannot see any real option for dealing with the remaining 12 months of the aggravated robbery sentence this time other than to require DD to serve out the remainder of the sentence.
Setting a non-parole period for this sentence appears to be excluded by ss 64(2) and 133B of the Crimes (Sentencing) Act 2005 (ACT), which respectively:
(a)exclude the setting of a non-parole period for a sentence imposed on a young offender; and
(b)define a young offender as a person who has been convicted or found guilty of an offence committed as a young offender, a description which DD satisfies in relation to the offence I am still dealing with.
The simplest approach would be to impose the suspended aggravated robbery sentence. However, since I intend to require that most of the outstanding part of the sentence be set against time that DD is currently serving on the three earlier breach offences, I will need to re-sentence him so that I can specify the exact dates for which the sentence is now to run. The effect of this, while giving DD the benefit of considerable concurrency with other current sentences, will however be to deprive him of the opportunity to apply for release on parole until he has finally completed the aggravated robbery sentence.
Sentence
DD, please stand. I note the breach of the 12-month good behaviour order I made in November 2014 that is constituted by the three offences dealt with in the Magistrates Court last year, and by the aggravated burglary and theft on which you have been convicted this morning.
Under s 110(2) of the Crimes (Sentence Administration) Act 2005 (ACT), I cancel the good behaviour order and re-sentence you for the aggravated robbery committed on 30 November 2011, to 27 months imprisonment, backdated to 6 July 2014 to take account of 15 months previously served on that sentence, and 9 months concurrency with your current sentences, 9 months that has already been served on those current sentences, and therefore expiring on 5 October 2016. As already noted, there is no non-parole period to be set for that sentence, so that sentence will be served in full.
If you have any particular questions about the effect of the orders I have just made, please talk to Mr Moffett about it after I leave.
You may sit down.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: David Hoitink Date: 26 July 2016 |
[1] And by several further offences dealt with in the Childrens [sic] Court in August 2013.