R v Douglas James Weldon
[2013] ACTSC 287
•19 December 2013
R v DOUGLAS JAMES WELDON
[2013] ACTSC 287 (19 December 2013)CRIMINAL LAW – Judgment and punishment – Re-sentencing following breach of recognisance – Principles relating to activation of sentence upon breach of recognisance
CRIMINAL LAW – Judgment and punishment – Sentencing – Aboriginality – Bugmy principles
Crimes Act 1914 (Cth), s 20AC
Criminal Code Act 1995 (Cth)
Brown v Western Australia [2009] WASCA 74
Bugmy v R (2013) 87 ALJR 1022
Campbell v The Queen (1985) 4 FCR 137
DPP (Vic) v Terrick (2009) 24 VR 457
R v Buckman (1988) 47 SASR 303
R v Holcroft [1997] 2 Qd R 392
R v Kain (1985) 38 SASR 309
R v Weldon aka Williams (Unreported, Supreme Court of the ACT, Refshauge J, 9 December 2009)
R v Weldon (Unreported, Supreme Court of the ACT, Refshauge J, 6 July 2011)
R v Yougie (1989) 33 A Crim R 301
Stanitzki v Higgins (1994) 63 SASR 309
TM v Karapanos [2011] ACTSC 74
Wilson v Taylor (1997) 113 NTR 1EX TEMPORE JUDGMENT
No. SCC 321 of 2009
No. SCC 105 of 2011Judge: Refshauge J
Supreme Court of the ACTDate: 19 December 2013
IN THE SUPREME COURT OF THE )
) No. SCC 321/09/No. SCC 105/11
AUSTRALIAN CAPITAL TERRITORY )R
V
DOUGLAS JAMES WELDON
ORDER
Judge: Refshauge J
Date: 19 December 2013
Place: CanberraTHE COURT ORDERS THAT:
The order for periodic detention for the burglary conviction, made on 6 July 2011, be revoked and Douglas James Weldon be ordered to serve the balance of the term of imprisonment, namely six weeks, commencing on 19 March 2013.
The order suspending the sentence of imprisonment on 6 July 2011 be revoked and Douglas James Weldon be sentenced to two years and six months’ full-time imprisonment, commencing on 19 March 2013.
The order suspending the sentence of imprisonment for the theft conviction, made on 6 July 2011, be revoked and Douglas James Weldon be sentenced to six weeks’ full-time imprisonment, commencing on 19 March 2013.
The order suspending the sentence of imprisonment for the theft conviction be revoked and Douglas James Weldon be sentenced to nine months’ full-time imprisonment, commencing on 1 April 2013.
The good behaviour order made for the theft and burglary convictions, made on 6 July 2011, be revoked and Douglas James Weldon be sentenced to eighteen months’ full-time imprisonment, commencing on 19 March 2013.
No non-parole period to be set.
1. Douglas James Weldon is a 33-year-old Aboriginal man. He has a long history of offending. Most of his offences are relatively low‑level crimes, including minor thefts, goods in custody, using offensive language, possessing offensive weapons, common assault and bail offences. He has, however, committed a not insignificant number of more serious offences, including twelve offences of burglary or breaking and entering with intent to steal, as well as a number of theft offences.
2. On 9 December 2009 I made a deferred sentence order in respect of offences of aggravated burglary, theft, and driving a car dishonestly without consent. The first two charges were Commonwealth offences charged under the Criminal Code Act 1995 (Cth). On 8 December 2010 Mr Weldon appeared again for sentence. He had taken the opportunities I gave him to address a number of the issues that had contributed to his offending behaviour. There were supportive letters and support from reliable sources. As a result, I sentenced him to a total period of four years and six months’ imprisonment of which about three and a half months had been served in pre-sentence custody, and released him then on a recognisance release order and a good behaviour order for twelve months.
3. Unfortunately, Mr Weldon appeared before me again on 6 May 2011, charged with burglary and theft when he entered the offices of a teacher of a local school and stole a mobile phone and a wallet containing $60 cash and various credit and identification cards, including a driver licence. I convicted him of the offences and this, of course, constituted a breach of the recognisance release order as well as of the good behaviour order.
4. On the further charges, I sentenced him to a total of eighteen months’ imprisonment to commence a little over four months earlier to take into account pre-sentence custody. I cancelled the good behaviour order and imposed a sentence of twelve
5. months’ imprisonment to be partly cumulatively on the earlier sentence. I made various orders, the effect of which was to sentence Mr Weldon to twelve months’ full-time custody, of which a little over four months had been spent in pre-sentence custody, and then fifteen months’ periodic detention, after which the sentence totalling four years and six months was to be suspended, with a recognisance release order and a good behaviour order for three years.
PERIODIC DETENTION
6. On 22 May 2013, an information was sworn that Mr Weldon had failed on eight occasions to comply with his periodic detention obligations by failing to perform periodic detention. Six of those applied to the periodic detention in respect of the Commonwealth offence of theft. He was summonsed to appear before me on 29 May 2013 and I remanded him in custody. Under Territory legislation, a failure to perform periodic detention on two occasions results in the offender automatically being required to serve the outstanding portion of the periodic detention in full‑time custody. That does not apply to the sentence for Commonwealth offences, where separate provisions have been in s 20AC of the Crimes Act 1914 (Cth).
7. Under s 20AC(6) I have, on being satisfied that the offender has, without reasonable cause or excuse, failed to comply with the sentence, three options. I can: (a) effectively continue the sentence and impose a monetary penalty of not more than $1700; (b) revoke the sentence and re-sentence the offender; or (c) take no action. It seems to me that only revocation and re-sentence is appropriate in this case. Given the number of detention periods he has failed to perform, I do not consider that he should have a further opportunity to complete the periodic detention.
BREACH OF RECOGNISANCE
8. On 7 May 2013 Mr Weldon assaulted his former partner. He was thus involved in some family violence, a serious matter. He was charged with two offences of common assault. As would be appropriate, they were dealt with in the Magistrates Court. Because of his Aboriginality, Mr Weldon was dealt with through the Galambany Circle Sentencing Court. See Magistrates Court Practice Direction No. 1 of 2012. Mr Weldon was ultimately dealt with by the Galambany Court Magistrate, who sentenced him on 20 November 2013 to six months and some days’ imprisonment to commence on 14 May 2013 and then made a good behaviour order for twelve months, with a condition that Mr Weldon attend rehabilitation.
9. These offences constituted a breach of the recognisance release order that applied from 17 February 2013, which I had imposed for the offence of aggravated burglary. The Crimes Act sets out the options that I have following a breach of a recognisance release order. They appear in s 20A(5)(c) of that Act. Relevantly, I can: (a) impose a monetary penalty of not more than $1000; (b) extend the period of the order; (c) revoke the order and make an order for periodic detention or a community service order; (d) revoke the order and order the unserved period of imprisonment be served; or (e) take no action. It seems to me that only the third or fourth options are realistic in the circumstances of the breach constituted by the further offending.
SUBJECTIVE CIRCUMSTANCES
10. I have set out the details of Mr Weldon’s personal circumstances in the sentencing remarks earlier made: R v Weldon aka Williams (Unreported, Supreme Court of the ACT, Refshauge J, 9 December 2009) and R v Weldon (Unreported, Supreme Court of the ACT, Refshauge J, 6 July 2011). I do not need to repeat them. They may be summarised as follows. Mr Weldon had a childhood experiencing alcoholism in his parents and family violence, including physical abuse of himself. He has also experienced sexual assault. He left school in Year 8 and has had some casual employment, mostly for a few months. He is an alcoholic and has used cannabis, heroin and ice. Despite a number of interventions, he appears to remain using these substances, although more recently he has entered the methadone program and has been illicit substance free while in custody. I have outlined his criminal history above. He has undertaken some alcohol and other drug rehabilitation and remained abstinent for some times but relapsed into using again from time to time. He has had support from various Aboriginal support agencies.
11. A helpful Pre-Sentence Report showed some hopeful signs. It was said by the author:
Mr Weldon is a 33-year‑old indigenous man with an extensive history of poly substance abuse and offending behaviour. However, he does appear to possess some insight into his behaviours and has expressed an apparently genuine desire to address them.
… Mr Weldon has expressed an ongoing desire to assist the youth of his community through his music and by using his abilities and connections to engage the others in a positive manner. It is considered that with sufficient support and effort by Mr Weldon he may be able to achieve his goals, however this would be contingent upon his ability to address his poly substance abuse and underlying issues. It is considered the Mr Weldon may benefit from a long‑term residential rehabilitation program if found suitable. Similarly, interventions to assist Mr Weldon to address his cognitive distortions may be beneficial.
Until he addresses his substance abuse, Mr Weldon is considered to be at high risk of recidivism. During the preparation of this report Mr Weldon was remanded at the AMC and was open and co-operative.
12. Mr Weldon sought admission to the Karralika program and was assessed on 17 July 2013. Admission, however, was not possible because it was understood at the time that Karralika would not admit persons who are admitted directly from custody or who are on the methadone program. The latter certainly may no longer be relevant. Since then, he has sought to be admitted to Benelong’s Haven and has been assessed as suitable. He remains on twenty-five milligrams of methadone. A bed, however, has not been made available at Benelong’s Haven since he made the inquiry.
CONSIDERATION
13. Mr M Lalor, who initially appeared for Mr Weldon, submitted that I should not impose a period of full‑time custody. He pointed to the important cultural factors that were a source of disadvantage to Mr Weldon, indeed, he submitted, leading to extended disadvantage. He submitted that the social problems faced by people such as Mr Weldon needed creative and innovative solutions. He referred to what I had said on this issue in TM v Karapanos [2011] ACTSC 74. I set out there what had been established by the Court of Appeal in Victoria, in DPP (Vic) v Terrick (2009) 24 VR 457, as the comprehensive sentencing principles for Aboriginal and Torres Strait Islander offenders. In Terrick, it was emphasised that there must be no more lenient sentencing for Aboriginal offenders because of their race, and that paternalism, sexism or collective guilt had no place in the sentencing process.
14. The Court did point out, however, that where it is shown that “mitigating factors in the background of the offender or [in the] circumstances of the offence occurred or had an impact peculiarly so because of the Aboriginality of the offender”, a different outcome may result. It also pointed out that prior considerations may mean that specific or general deterrence or community protection may reduce the significance of such personal factors. The Court there did acknowledge, however, that these factors were as complex as they were prevalent, thus the Court said (at 469; [50]):
The prevalence of disadvantage within indigenous communities does not diminish its significance for the individual offender. On the contrary, membership of a community where disadvantage is widespread might compound the difficulties suffered by a particular individual. The social and economic disadvantages often found in indigenous communities are powerful considerations. The fact that disadvantage amongst members of an indigenous community is widespread must not be allowed to reduce the impact of disadvantage as a sentencing factor in a particular case.
15. The court also cited with approval what Derrington J had said in R v Yougie (1989) 33 A Crim R 301 at 304:
Of highest importance is the deterrent effect for the protection of potential victims and the turning of the court’s face against violence as a general proposition is justifiable. At the same time it would be wrong to fail to acknowledge the social difficulties faced by Aboriginals in this context where poor self‑image and other demoralising factors have placed heavy stresses on them leading to alcohol abuse and consequential violence. Its endemic presence in these communities, despite heavy prison sentences, is proof of the serious problem and, to some extent, the limited nature of deterrence in this social context.
16. More recently, in Bugmy v R (2013) 87 ALJR 1022 at [43]-[44], the High Court has said:
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision. However, this is not to suggest … that an offender’s deprived background has the same [mitigatory] relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
17. Another significant issue is that the activation of the suspended sentence under s 20A(5)(c)(ci) of the Crimes Act is, unlike the Territory’s situation, the activation of the full period of unserved imprisonment. There is no discretion to activate only part of the sentence, nor, so I am informed, the capacity to set a non‑parole period or make a recognisance release order. That, unfortunately, risks the requirement of a court to impose a sentence that might be regarded as too severe and without the rehabilitative advantage of post-release supervision.
18. This raises an issue about whether the offence which breaches the recognisance or the circumstances of the offender are such that the activation of the whole of the period of imprisonment is a disproportionate response to the breach. In a number of jurisdictions – South Australia, Queensland, Victoria and Western Australia – the activation of a suspended sentence is subject to a limitation that it should be activated unless it would be unjust to do so. While those words are not present in the Commonwealth legislation nor, indeed, in the Territory legislation, it is inconceivable that the legislature would require the imposition of an unjust sentence. Thus, in my view, the principles laid down in those jurisdictions may be helpful for understanding what would amount to such injustice.
19. This is also in the context where the courts have referred to “a clear legislative policy that in general a breach of a condition of a recognisance upon which a sentence has been suspended, should result in the offender serving the sentence which was suspended”. See R v Buckman (1988) 47 SASR 303 at 304. That may not directly apply, since the options statutorily available may indicate a somewhat different policy.
20. Nevertheless, the approach to determining whether it was not just to activate the sentence has referred to the following factors: where there would be a marked disproportion between the seriousness of the offence constituting the breach and the sentence of imprisonment that would be activated (Stanitzki v Higgins (1994) 63 SASR 309 at 312); that the offence constituting the breach was of such a different character from that for which the sentence was imposed that it would seem inappropriate for the normal statutory consequences to flow (Stanitzki v Higgins at 312); factors personal to the offender such as a substantial degree of rehabilitation (R v Holcroft [1997] 2 Qd R 392 at 405); whether the breaching offence was trivial and the penalty imposed may be some indication of that (Wilson v Taylor (1997) 113 NTR 1 at 8); whether the offences were committed late in the suspension period (Brown v Western Australia [2009] WASCA 74).
21. On the other hand, it is said that the imposition of an immediate custodial sentence for the breaching offence would require the suspended sentence to be activated. See Campbell v The Queen (1985) 4 FCR 137 at 140. Ordinarily, the activated sentence would be cumulative: R v Kain (1985) 38 SASR 309 at 311. Finally, I need to pay regard to what I said to Mr Weldon when sentencing him on the last occasion. I said:
I warn you that if you fail to comply with the periodic detention order you will spend the whole of the balance of the fifteen months in full‑time custody, and if you commit further offences then you will almost certainly spend the balance of the three years and six months in full-time custody.
EVIDENCE
22. Mr Weldon gave some evidence before me. He frankly, to his credit, admitted the breaches of the periodic detention order. He explained that he thought he had his life under control but that he lost his job because his employer was caught up in delays in payment over the new ASIO building. This led to disputes with his then partner. He found it hard to get further work, though he has a bobcat licence. Things escalated and got out of control, though he does not excuse his failure. He acknowledged the impact the fresh offences has had on his ex-partner and the risk it has put to the relationship with his daughter.
23. He described to me the efforts he had made at rehabilitation for his obvious drug habit. He commenced seeking out rehabilitation options eight weeks ago. He has been accepted into Benelong’s Haven, as I said, but no bed is presently available. He says he has applied to participate in the First Steps program but has not, so far, been admitted. He has now seen a counsellor from ACT Health’s alcohol and drug program, but I did not have a report from that agency. He has not participated in the Solaris program, although I made a sentence previously that would have allowed him to do so. He has been engaged in an art course at the Alexander Maconochie Centre. He has insight into his offending behaviour.
DISPOSITION
24. This is a difficult matter and I have given careful and anxious consideration to what I should do. It seems to me that I gave Mr Weldon a fair and specific warning about the risks of non-compliance with the sentencing options I had given him and, in fairness and to his credit, he accepts that. The further offending cannot be regarded as trivial, and although backdated to take into account pre-sentence custody, the sentence was one of immediate custody, as was appropriate in those circumstances. Although it is to some extent of a different kind to the offences for which I need to respond now, it does seem to me that it is an offence of some significance.
25. Mr Weldon has been making some attempts to engage in rehabilitation, but these are still fairly tentative and prospective rather than actual and do not seem to have been engaged until some time after he was taken back into custody. I accept that he is not an extrovert, and has some difficulty in pushing his own interests, but he has really not managed to make much progress, though some of that is not entirely his fault. I do accept, however, that he is on the methadone program and no longer taking drugs and that he is under some counselling. In my view, however, the suspended sentence should be activated.
26. To calculate the unspent portion I proceed as follows: Mr Weldon has served the twelve months of periodic detention from February 2012 to February 2013 that I ordered as part of the sentence for the aggravated burglary, though on two occasions he failed to attend and the period would have then been extended. Mr Weldon served six weeks and four days of the periodic detention that I ordered for the theft. Some of that would have been concurrent with the earlier order and also concurrent with the good behaviour order but, nevertheless, in my view, should be taken into account. Mr Weldon has now been in custody for seven months and eleven days. That totals twenty-one months which I consider has now been served of the total period of three years and six months. That leaves twenty-one months still to be served from today.
27. The sentence, however, I am advised, would desirably be backdated to take account of this earlier period of imprisonment for the periods of the custody that he has been serving since he was arrested and also the period of custody that was served in relation to the theft. There is also the balance of the periodic detention order for the theft, namely six weeks. In my view, that should be served as full‑time custody but concurrently with the order that I propose to make.
28. Mr Weldon, please stand. Under s 20AC(6) of the Crimes Act1914, I revoke the order for periodic detention made on 6 July 2011 for the offence of theft. I sentence you to imprisonment for six weeks to commence on 19 March 2013 to be served by full‑time custody. Under s 20A(5)(c)(ci) I revoke the order suspending the sentence of imprisonment made on 6 July 2011 for the offence of aggravated burglary. I order that you be imprisoned for two years and six months from 19 March 2013 until 18 July 2015, to be served by full-time custody.
29. Under s 20A(5)(c)(ci), I revoke the order suspending the sentence of imprisonment made for the offence of theft and I sentence you to imprisonment for six weeks to commence on 19 March 2013. That is picked up in the other one. It has not added anything, but it is dealt with both the failure of the periodic detention and the failure of the good behaviour order on the theft as well as the aggravated burglary. So it remains that you will have to spend until 18 July 2015 in custody.
30. I revoke the order suspending the sentence of imprisonment made for the offence of theft and I re-sentence you to nine months’ full-time imprisonment, commencing on 1 April 2013 when the six week period of detention ends. This sentence will end of 31 January 2014 and takes into account the three months’ periodic detention already served on the original twelve month sentence.
31. I cancel the good behaviour order on the burglary and theft charges made on 6 July 2011. I sentence you to eighteen months’ imprisonment to commence on 19 March 2013 to take into account the period of pre‑sentence custody. That has dealt with the Territory offences, which were the burglary and theft at the grammar school which I gave you a suspended sentence for. This breached it and I have simply imposed that, but it is concurrent and it will not have any additional effect on the sentence that I have given you. Do you understand that?
32. I will not set a non-parole period, because you are serving a longer period of imprisonment on a Commonwealth offence for which there can be no non‑parole period. So it is inappropriate to set a non-parole period.
33. [His Honour then spoke directly to Mr Weldon]
34. Mr Weldon, I think most of that does not make much sense to you, but the bottom line is I have said, I have taken into account all the time that you have served to date, as much as I can, which includes the periodic detention that you did in 2012, the six weeks that you did at the beginning of this year and the seven months that you have been in custody; that has all been taken off the three years and six months and the balance is twenty-one months from today, which goes until 18 July 2015.
35. Mr Weldon, I am sorry you did not manage to take the opportunity that I gave you. It is now left you in a difficult and unfortunate position, but there is still opportunity for you to address your drug behaviour and to participate in programs at the AMC to give you the opportunity when released to become a useful member of society and, in particular, to pay back to your community by doing what you say you want to do and helping young people in that community from the problems that you yourself have suffered. I am confident that you have the capacity to do so.
36. It is unfortunate that really you have brought yourself to the situation where, after careful consideration, I had no real alternative but to impose the sentence that I originally imposed. I then told you clearly that this was a good opportunity for you. I hoped that you would take that opportunity. Now I hope that you will put some effort into your drug rehabilitation. Perhaps you can get into the Solaris program. I hope so, and I hope it is good for you, but certainly continue with the counselling that you have had and hopefully on your release the courts will not see you anymore.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 31 March 2014
Counsel for the prosecution: Mr Sahu-Khan, Ms K Haigh
Solicitor for the prosecution: ACT Director of Public Prosecutions, Commonwealth Director of Public Prosecutions
Counsel for the defendant: Mr D Rutherford
Solicitor for the defendant: Aboriginal Legal ServiceDate of hearing: 19 December 2013
Date of judgment: 19 December 2013
6
1