R v Forrest (No 3)
[2017] ACTSC 168
•10 May 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Forrest (No 3) |
Citation: | [2017] ACTSC 168 |
Hearing Dates: | 12 April, 1, 2, and 8 May 2017 |
DecisionDate: | 10 May 2017 |
Before: | Refshauge J |
Decision: | 1. The convictions entered on 6 March 2017 against Michael Paul Forrest be confirmed. 2. For the offence of theft being count 1, Michael Paul Forrest be sentenced to 12 months imprisonment to commence on 11 December 2015. 3. For the offence of damaging property being count 2, Michael Paul Forrest be sentenced to six months imprisonment to commence on 11 December 2015. 4. The Good Behaviour Orders made on 30 May 2014 for Michael Paul Forrest be cancelled and the four months imprisonment then suspended be imposed to commence on 11 October 2016. 5. For the offence of aggravated robbery being count 3, Michael Paul Forrest be sentenced to three years imprisonment to commence on 11 August 2015. 6. For the offence of dishonestly driving someone else’s vehicle being count 5, Michael Paul Forrest be sentenced to 12 months imprisonment to commence on 11 September 2017. 7. For the offence of damaging property being count 4, Michael Paul Forrest be sentenced to nine months imprisonment to commence on 11 January 2018. 8. For the offence of burglary being count 6, Michael Paul Forrest be sentenced to 18 months imprisonment to commence on 11 August 2017. 9. For the offence of theft in the burglary being count 8, Michael Paul Forrest be sentenced to 12 months imprisonment to commence on 11 February 2018. 10. For the offence of theft from the motor vehicle being count 9, Michael Paul Forrest be sentenced to 12 months imprisonment to commence on 11 February 2018. 11. For the offence of damaging property being count 7, Michael Paul Forrest be sentenced to six months imprisonment to commence on 11 August 2018. 12. For the offences of damaging property being count 10, Michael Paul Forrest be sentenced to nine months imprisonment to commence on 11 May 2018. 13. For the offence of burglary being count 11, Michael Paul Forrest be sentenced to 18 months imprisonment to commence on 11 December 2017. 14. For the offences of theft being count 12, Michael Paul Forrest be sentenced to 15 months imprisonment to commence on 11 March 2018. 15. For the offence of burglary being count 13, Michael Paul Forrest be sentenced to 18 months imprisonment to commence on 11 April 2018. 16. For the offence of theft in that burglary being count 14, Michael Paul Forrest be sentenced to 15 months imprisonment to commence on 11 July 2018. 17. For the offence of damaging property being count 15, Michael Paul Forrest be sentenced to nine months imprisonment to commence on 11 January 2019. 18. For the offences of theft being count 16, Michael Paul Forrest be sentenced to 15 months imprisonment to commence on 11 August 2018. 19. For the offences of damaging property being count 17, Michael Paul Forrest be sentenced to nine months imprisonment to commence on 11 February 2018. 20. For the offence of burglary being count 18, Michael Paul Forrest be sentenced to 18 months imprisonment to commence on 11 August 2018. 21. For the offences of damaging property being count 19, Michael Paul Forrest be sentenced to nine months imprisonment to commence on 11 May 2019. 22. For the offence of theft in that burglary being count 20, Michael Paul Forrest be sentenced to 15 months imprisonment to commence on 11 November 2018. 23. For the offence of burglary being count 21, Michael Paul Forrest be sentenced to 18 months imprisonment to commence on 11 December 2018. 24. For the offences of damaging property being count 22, Michael Paul Forrest be sentenced to nine months imprisonment to commence on 11 September 2019. 25. For the offences of theft being count 23, Michael Paul Forrest be sentenced to 18 months imprisonment to commence on 11 December 2018. 26. For the offence of burglary being count 24, Michael Paul Forrest be sentenced to 18 months imprisonment to commence on 11 March 2019. 27. For the offences of damaging property being count 25, Michael Paul Forrest be sentenced to eight months imprisonment to commence on 11 January 2020. 28. For the offences of theft being count 26, Michael Paul Forrest be sentenced to 15 months imprisonment to commence on 11 June 2019. 29. For the offence of dishonestly receiving stolen property being count 27, Michael Paul Forrest be sentenced to 15 months imprisonment to commence on 11 August 2019. 30. For the offence of burglary being count 28, Michael Paul Forrest be sentenced to 18 months imprisonment to commence on 11 August 2019. 31. For the offence of theft in that burglary being count 38, Michael Paul Forrest be sentenced to 12 months imprisonment to commence on 11 February 2020. 32. For the offence of theft of a motor vehicle being count 29, Michael Paul Forrest be sentenced to 12 months imprisonment to commence on 11 March 2020. 33. For the offence of aggravated burglary being count 30, Michael Paul Forrest be sentenced to 24 months imprisonment to commence on 11 August 2019. 34. For the offences of damaging property being count 31, Michael Paul Forrest be sentenced to 12 months imprisonment to commence on 11 August 2020. 35. For the offences of theft being count 32, Michael Paul Forrest be sentenced to 15 months imprisonment to commence on 11 May 2020. 36. For the offences of theft being count 33, Michael Paul Forrest be sentenced to 15 months imprisonment to commence on 11 June 2020. 37. For the offences of damaging property being count 34, Michael Paul Forrest be sentenced to nine months imprisonment to commence on 11 December 2020. 38. For the offence of dishonestly receiving stolen property being count 35, Michael Paul Forrest be sentenced to 12 months imprisonment to commence on 11 October 2020. 39. For the offence of burglary being count 36, Michael Paul Forrest be sentenced to 18 months imprisonment to commence on 11 July 2020. 40. For the offence of theft in that burglary being count 37, Michael Paul Forrest be sentenced to 15 months imprisonment to commence on 11 October 2020. 41. Michael Paul Forrest be convicted of driving whilst disqualified as a repeat offender on 21 July 2015. 42. For that offence, Michael Paul Forrest be sentenced to four months imprisonment to commence on 11 September 2021. 43. Michael Paul Forrest be convicted of dishonestly driving someone else’s motor vehicle without their consent on 30 March 2017. 44. For that offence, Michael Paul Forrest be sentenced to 12 months imprisonment to commence on 11 September 2021. 45. Michael Paul Forrest be subject to a non parole period of four years and month to commence on 11 August 2015 and end on 10 September 2019. 46. Michael Paul Forrest be convicted of parking so as to obstruct other vehicles. 47. Michael Paul Forrest be fined $250 and be given no time to pay. 48. Michael Paul Forrest be convicted of being an unlicensed driver. 49. Michael Paul Forrest be fined $500 and be given no time to pay. 50. It be requested that the Registrar of the Supreme Court of the ACT provide to the Director-General and the Sentencing Administration Board a copy of the report prepared by Dr Danielle Clout dated 7 December 2017. 51. Michael Paul Forrest be disqualified from holding or obtaining a driver licence for a period of two years and six months from 10 May 2017. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – sentencing for multiple offences – rolled-up counts – aggravated burglary – burglary – theft – receiving stolen property – damaging property – possession of stolen goods – dishonestly driving someone else’s vehicle without their consent – driving as a repeat offender whilst disqualified – transferred summary charges – breach of Good Behaviour Order – general deterrence – specific deterrence – totality of sentence – s 68E of the Supreme Court Act 1930 (ACT) |
Legislation Cited: | Crimes Act 1900 (ACT), s 321 Crimes (Sentencing) Act 2005 (ACT), ss 7, 27, 33, 118 Criminal Code 2002 (ACT), s 318(2) Australian Road Rules, rr 208(1), 208(8) Road Transport (Driver Licensing) Regulation 2000 (ACT), s 52 |
Cases Cited: | Arman v Wall [2008] ACTSC 61 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 |
Parties: | The Queen (Crown) Michael Paul Forrest (Defendant) |
Representation: | Counsel Ms T Skvortsova (Crown) Dr J De Bruin (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Defendant) | |
File Numbers: | SCC 128 of 2016 SCC 129 of 2016 SCC 104 of 2017 SCC 105 of 2017 |
REFSHAUGE J:
In Saga v Reid [2010] ACTSC 59, I addressed two issues that are often in conflict in sentencing persons who have a drug addiction, which almost inevitably and frequently leads them into the criminal justice system.
On the one hand, I acknowledged at [89], the pernicious nature of drug addiction which can take some time, including failures, to manage, and that failure in itself should not deny an offender opportunities for further attempts at rehabilitation where there is a rational basis for it.
At the same time, I pointed out at [99]-[101], that the courts are obliged to uphold the integrity of conditional release orders because failure to take appropriate action on a breach of such orders is likely to bring them into disrepute.
Now appearing before me for sentence is Michael Paul Forrest who, on his plea of guilty, has been convicted of 38 counts for various offences of dishonesty, most of which were committed in what I described in R v Forrest (No 2) [2017] ACTSC 83 at [1], as a “sustained rampage of criminality” over 12 days in July 2015, together with two dishonesty offences committed on 10 September 2014, and an offence of driving whilst a disqualified driver which was transferred under s 90B of the Magistrates Court Act 1930 (ACT) to be dealt with under Pt 8 of the Supreme Court Act 1933 (ACT).
I dealt with Mr Forrest on 6 March 2017, convicting him of the various offences but making a Deferred Sentence Order under s 27 of the Crimes (Sentencing) Act 2005 (ACT) for 12 months. The principal condition of the bail then granted to Mr Forrest was that he enter and participate in the drug rehabilitation program at the Karralika Therapeutic Community (Karralika).
Mr Forrest had been a detainee in the Alexander Maconochie Centre, part of the time as a sentenced prisoner and part of the time on remand. He was released on bail on 7 March 2017 and entered the Karralika Program on that day, escorted there, as required by his bail conditions, by staff of Karralika. On admission, he submitted to both breath and urine analysis which tested negative for alcohol or illicit drugs.
On 14 March 2017, however, he underwent further urinalysis which detected the presence of methylamphetamine (Ice) and he was discharged.
He was required by his bail conditions to report to the Officer-in-Charge of Tuggeranong Police Station within four hours of his discharge from Karralika but, in breach of those conditions, he failed to do so.
When his discharge from Karralika was reported to me, I did not act immediately as I wished to give Mr Forrest an opportunity to report to police or to have the matter
re-listed in Court. Finally, when neither of these events occurred, I issued a warrant for his arrest on 20 March 2017.
Mr Forrest was arrested on 30 March 2017 under the warrant but also for an offence of dishonestly riding in someone else’s motor vehicle without their consent. That is to say, he not only breached his bail by failing to complete the Karralika Program and failing to return to Court on his discharge from the Program, but he committed a further offence.
The offence of dishonestly driving someone else’s motor vehicle without their consent is an offence contrary to s 318(2) of the Criminal Code 2002 (ACT) for which the maximum penalty is 500 penalty units (that is a fine of $75 000) and imprisonment for five years, or both.
He was later charged with further summary offences arising out of his use of the motor vehicle. Those offences were parking so as to obstruct other vehicles and being an unlicensed driver.
Parking so as to obstruct other vehicles is an offence against r 208(1) of the Australian Road Rules by failing to park in accordance with the requirements of r 208(8). Under Item 270.7 of Pt 1.2 of Sch 1 of the Road Transport (Offences) Regulation 2005 (ACT), the maximum penalty for the offence is 20 penalty units, that is a fine of $3000.
Being an unlicensed driver is an offence under s 31(1) of the Road Transport (Driving Licensing) Act 1999 (ACT) which renders Mr Forrest liable to a maximum penalty, also of 20 penalty units, that is a fine of $3000.
Both of these latter offences are summary offences but are related offences to the offence of dishonestly driving someone else’s motor vehicle without their consent within the meaning of s 68CA of the Supreme Court Act. The Magistrates Court, when committing Mr Forrest to this Court for sentence on the charge of dishonestly driving someone else’s motor vehicle without their consent, also transferred these two summary offences under s 90B of the Magistrates Court Act to be dealt with under Pt 8 of the Supreme Court Act.
In R v McGuckin (No 2) [2014] ACTSC 365 at [10]-[11], I have set out the background to the approach of the Court dealing with transferred charges. They are summary charges, either back-up charges or related charges as defined in s 68CA of the Supreme Court Act. There can be problems where the charges are said to be back-up charges as explained in R v Ngata [2015] ACTSC 356 at [9]-[17], though that does not apply here, as the charges are related charges. Whether a proceeding is a trial for the purposes of s 68E of the Supreme Court Act is problematic. In R v Aleer [2016] ACTSC 75 at [95]-[101], I held that a special hearing under s 321 of the Crimes Act 1900 (ACT) was a trial.
While s 68D of the Supreme Court Act clearly contemplates that a transferred charge is intended to be dealt with in sentencing proceedings for the offence that has been committed to the Supreme Court, whether for trial or sentencing, the procedure mandated by s 68E is not so easy to fit into those proceedings because of the requirement that the evidence be “only” that given during the trial (and, on sentencing, there is no trial because the distinction between trial and sentencing is made in s 68D) and additional evidence; if there is no trial there can be no evidence to which any other evidence is additional.
I am prepared to consider that this is unsatisfactory drafting and that the evidence to which s 68E(1)(b) of the Supreme Court Act refers, which is only that to which a court can have regard, is the evidence, if any, at the trial, and any evidence which is given other than that given at any trial (including none if, of course, there is no trial), is within the meaning of the term in s 68E(1)(b)(ii) and (2), namely “additional” evidence.
It would be helpful if this were to be made clearer and some attention be given to this drafting. As the welcome reform that this regime for transferring summary charges to the Supreme Court effected is highly desirable (see R v Barker [2014] ACTSC 374 at [78]), it would be helpful if the matter were put beyond doubt.
The facts
I have set out the facts of the original offences in R v Forrest (No 2) at [16]-[59], [61]. I do not need to repeat them, but I take into account what I there said as if incorporated into these reasons.
For the purposes of these reasons, they may be summarised as a series of serious dishonesty offences. They included a very serious offence, an aggravated robbery with a knife, as well as serious offences of burglary, attacks on motor vehicles in various car parks, including those associated with residential apartment blocks, made with the intent of not only stealing goods from the vehicles but also finding the address of the owner and then going to their home to commit burglaries and thefts there. They included stealing valuable items, including a motor vehicle, and items of sentimental value, as well as offences akin to receiving stolen property, including another motor vehicle.
As to the further offences committed since then, the facts are as follows. At about 3:00pm on 29 March 2017, a locked motor vehicle, namely a dark blue Holden Special Vehicle Maloo utility, was broken into by an unknown person or unknown persons who started the vehicle with a pair of scissors and drove it away.
At about 9:10am on 30 March 2017, police saw the vehicle travelling south on Namatjira Drive, Fisher, ACT, with two males in the front seats. Police recognised the driver as Mr Forrest.
The vehicle was driven to the shopping centre at Rivett, ACT, and parked illegally, obstructing other vehicles from leaving the marked parking bays next to a Telstra phone box. Police, who had followed the vehicle, saw Mr Forrest leave the phone box and, presumably when he saw the police, he fled, initially to the utility, but then past it in an attempt to evade the police officers.
The police officers called on him to stop, but he kept running until he fell and the officers arrested him on the warrant that I had issued and charged him with dishonestly driving someone else’s vehicle without their consent.
Police made inquiries and found that, on 7 March 2013, Mr Forrest was not authorised to drive a motor vehicle on a road. On 30 May 2014, Mr Forrest had been disqualified by the Magistrates Court for holding or obtaining a driver licence for 2 years.
I was advised that, under s 52 of the Road Transport (Driver Licensing) Regulation 2000 (ACT), a person who has been disqualified may, at the time the disqualification ends, apply for a driver licence, but the Road Transport Authority must issue that person with a probationary licence. Mr Forrest had not subsequently applied for and had not been granted a probationary licence. It was submitted he was an unlicensed person who, therefore, was not authorised to drive a motor vehicle on a public street or in a public place.
The explanation in the Statement of Facts admitted by consent omitted an important reference, namely that under s 66 of the Road Transport (General) Act 1999 (ACT), the disqualification of a person from holding or obtaining a licence cancels any licence the person then holds. That, of course, requires the person to apply for a licence at the end of the period of disqualification and, of course, the application then must be for a probationary licence as noted above (at [27]).
This is the sixth offence of this type Mr Forrest has committed; he has been convicted of five offences of driving whilst disqualified and one of driving while his licence was suspended by law. He has also been convicted of three offences of being an unaccompanied learner driver. This does not aggravate the offences, but it denies him much leniency and makes specific deterrence a more important sentencing factor.
The offences
Again, I have set out the relevant considerations in relation to the original offences in R v Forrest (No 2) at [66]-[90]. Once more, I do not need to repeat what I there said and I take my remarks into account as if incorporated in these reasons.
I note the following brief matters: the offences of damaging property were all part of the means to carry out the thefts and, so far as any information was available to me, the value of the damage was, it appears to me, around $350, not a great amount, though causing loss and, no doubt, significant inconvenience. There were 11 counts but, as a number were rolled-up counts (see R v Forrest (No 2) at [161]-[165]), 43 offences.
The total amount stolen in all the thefts was substantial, namely $42 910.09. There were 13 counts of theft but, as a number of them were rolled-up counts, these represented 38 offences. The amount taken in each theft was not great; the largest amount was $3637.09 in any one offence. A number of items were recovered, although I did not have details of the value of recovered items. Loss of some of the stolen property would have caused significant inconvenience to the owners.
The burglaries were committed on vulnerable premises, including residences where Mr Forrest knew that they were unlikely to be occupied at the time. There were eight offences of burglary, four committed on residential premises, and four on underground car parks.
Mr Forrest was also accompanied by a co-offender in entering another underground car park as a trespasser, committing an aggravated burglary and then committed ten offences of damaging property and nine offences of theft.
Mr Forrest was also found in possession of stolen goods when he was arrested, items that came from different thefts. In one case, the value of goods was $3000.
Mr Forrest also committed an offence of aggravated robbery when he threatened a salesperson in a retail store with a knife before making off with a stolen jumper valued at $59. The use of a knife, as noted by the Court of Appeal in Hall v The Queen; Barker v The Queen [2017] ACTCA 16 at [17], is an aggravating factor.
As to the offence of dishonestly driving someone else’s motor vehicle without their consent, there were no especially aggravating features, such as the manner of the driving. See Kelly v Ashby [2015] ACTSC 346; 73 MVR 360 at 370-1; [80]-[83].
Nevertheless, a car is usually, after a home, the most significant purchase made in this community, and, for renters, the most significant one. It is, especially in Canberra, an important possession, for the city is very car dependent. The loss of the use of a car can be very inconvenient and, if not recovered, a substantial financial loss to the owner. The courts should and do take the offence seriously: R v Cockburn (No 2) [2015] ACTSC 337 at [95].
It was submitted by the Crown prosecutor, Ms T Skvortsova, that Mr Forrest’s attempt to run away and flee when approached by police was an aggravating feature of this offence. I was not convinced that this was so. My reaction is reinforced by the comments of King J in R v Zhu [2011] VSC 470 at [35] that trying to avoid police is neither a mitigating nor an aggravating factor.
That Mr Forrest was on bail and a Deferred Sentence Order, namely conditional release, at the time of this offending, does constitute an aggravating factor which must be taken into account.
I have not used the apparent scale of assessment of seriousness suggested by the Crown. I find such scales meaningless and, as the Court of Appeal has said in recent decisions of Singh v The Queen [2017] ACTCA 17 at [35] and R v Toumo’ua [2017] ACTCA 9 at [24], such a scale is unhelpful and it is preferable to identify the particular features of a case that informs the objective seriousness of the offence and other aggravating factors.
Subjective circumstances
I set out Mr Forrest’s subjective circumstances in R v Forrest (No 2) at [92]-[140], including addressing, in particular, Mr Forrest’s mental health issues. Again, I do not need to repeat them and I take them into account as if they were incorporated into these reasons.
Mr Forrest, who is now 25 years old, had a difficult childhood, including experiencing abuse. These are matters that the Court must take into account: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 592-3; [37]; 594-5; [43]-[44].
He had problems at school but, when he left school, he secured labouring employment which he enjoyed. He has had three significant relationships, one of which resulted in the birth of his son, with whom he enjoys a strong bond and which I thought might have been a significant motivation for his rehabilitation.
He has a long and entrenched drug addiction, his drug of choice now being Ice. He has had a number of attempts at drug rehabilitation, though the only successful ones have been in custody, through the Solaris Program, a program which I have described in R v JM [2014] ACTSC 380 at [26]. He has successfully undertaken that Program twice. It appears, however, that he is not able to translate the success of his participation in that Program in custody into a similar program in the community.
Mr Forrest has a worrying criminal history with 43 offences on his record. His current offending will nearly double that, but will include more serious offences, though, with the exception of the aggravated robbery, no further offences of violence which did feature in his early criminality.
Indeed, an earlier Pre-Sentence Report did comment:
Mr Forrest continues to demonstrate antisocial values and a propensity for violence. Furthermore, Mr Forrest has demonstrated limited insight into his offending behaviour ...
Nevertheless, the offence of aggravated robbery was the only offence of violence in the 41 counts (and the 97 actual offences) to which he has pleaded guilty. Further, Mr Forrest did participate in a Restorative Justice process which appears to have assisted him to address to some extent his lack of insight and gain some offender empathy, though his further offending after that experience did cause the deprivation of the owner of a valuable car for a time, conduct that these qualities might have but apparently did not prevent. This, as the Crown properly submitted, must moderate any reliance on what Mr Forrest may suggest he learnt from his restorative justice experience.
While his experience of Restorative Justice in these circumstances does not justify leniency, it does moderate what otherwise would have required a more serious response to deal with the ongoing problems identified in that Pre-Sentence Report.
Mr Forrest is still a relatively young man and, despite his shocking criminal record, there are some glimpses that he may be gaining some insight and may be persuaded to put his anti-social behaviour behind him. The further offending is a very worrying sign, however, as is his failure to return to Court when discharged from Karralika.
He has been diagnosed with a Major Depressive Disorder, a Cannabis Use Disorder, and a Stimulant Use Disorder. He may also have an Attention Deficit Hyperactivity Disorder.
I set out in R v Forrest (No 2) at [123], the opinion of Clinical Psychologist, Dr Danielle Clout, which, in my view, justified mitigation of his sentence in accordance with the principles described in R v Verdins [2007] VSCA 102, 16 VR 269 at 276; [32]. I see no reason to change my view and no submissions were made to me encouraging me to do so.
One of the outcomes of Mr Forrest’s participation in Restorative Justice was that a number of victims sought, in the words of one victim, “a firm commitment from Michael to kick the drug habit and seek meaningful employment so that Michael can fulfil his obligations to his family and restore some self-esteem”. Obviously his failed attempt at Karralika and his relapse has breached that commitment. That is not a matter of aggravation but does reduce the leniency that can be afforded such participation.
The Crown very properly advised that inquiries it had made disclosed that, after his discharge from Karralika, Mr Forrest contacted Canberra Recovery Services (CRS), another respected drug rehabilitation agency whose program I have described in R v Ngerengere (No 3) [2016] ACTSC 299 at [70].
He attended at CRS two days after his discharge but was assessed as unsuitable. It appears that the agency has a policy of not accepting drug addicted persons whose court proceedings have not been finalised. That is a matter of great regret because that closes one door to increasingly scarce drug rehabilitation resources in our community to those who might benefit from a Deferred Sentence Order which has some proven success.
Another victim sought “an assurance that Michael genuinely accepts responsibility for his criminal behaviour”. He gave this assurance and, especially in the light of his pleas of guilty and his efforts to be admitted to the Karralika Program, I accept that he was genuine at the time. It is regrettable that it was not durable.
Since his arrest, Mr Forrest has been in custody.
Victim Impact Statement
I referred in R v Forrest (No 2) at [142]-[146], to the three Victim Impact Statements provided at the last hearing. Again, I take them into account in the way required. I do not need to repeat what I there said and have regard to them as though my remarks were incorporated into these reasons.
Rolled-Up Counts
A number of the offences were included in rolled-up counts. I referred to this in R v Forrest (No 2) at [161]-[164]. The principles applicable to sentencing rolled-up counts may be summarised as follows:
1. For sentencing purposes, the count is one offence and subject to the maximum penalty for the offence.
2. Only one sentence for each count may be imposed.
3. The sentence is not invariably the sum of what could have been imposed as individual sentences for each offence comprised in the count, though that may be appropriate.
4. The criminality for which an offender is to be sentenced is greater for a rolled-up count than for a count that contains an individual offence only.
See also R v John [2017] ACTSC 144 at [106]-[107].
Pre-Sentence Custody and Totality
There was an issue about the length of the pre-sentence custody served by Mr Forrest. I addressed that in R v Forrest (No 2) at [166]-[172].
This included the issue of how to deal with certain offences for which Mr Forrest arguably should have been sentenced when sentenced by Robinson AJ, as these were offences committed about the same time as the offences for which his Honour sentenced him as recorded in R v Forrest [2015] ACTSC 283 (Forrest (2015)).
I concluded that there should be a substantial degree of concurrency with that sentence and, for the reasons I set out, the pre-sentence custody which, in my judgement should be taken into account, is a total of 315 days as at 7 March 2017. To this should be added the period since his arrest on the warrant I issued, namely a further 42 days, making a total of 357 days. I shall take that period into account when imposing sentence.
Breach of Good Behaviour Order
The offences to which Mr Forrest has pleaded guilty breach a Good Behaviour Order made on 14 June 2014 when four months of a seven months sentence of imprisonment was suspended. I was satisfied that he had breached the order.
I set out in R v Forrest (No 2) at [180], the principles on which to act and, after consideration of those issues at [182]-[186], concluded at [187] that the sentence suspended should be imposed.
In this case, however, Mr Forrest was dealt with for other offences that also breached the Good Behaviour Order. See Forrest (2015). No action was then taken, though his Honour was aware of Mr Forrest’s criminal record. I can only assume that the Crown did not then prefer a breach charge in those proceedings. In my view, this justifies a substantial degree of concurrency in the sentence to be imposed.
Sentencing Practice
I noted in R v Forrest (No 2) at [188]-[189] the complexity of the sentencing exercise I must undertake and that, while there was sentencing practice of which I was aware and would and do take into account in relation to individual sentences, it was more difficult to find relevant and comparable decisions for such multiple offending.
I considered the particular offences and made some remarks in R v Forrest (No 2) at [190]-[193], about the various offences. I do not resile from what I there said.
I note too that the increase in the length of a term of imprisonment does not increase in a linear way, so that a sentence of six years imprisonment is more than twice as severe as a sentence of three years imprisonment: Arman v Wall [2008] ACTSC 61 at [33].
Deferred Sentence Order
When making the Deferred Sentence Order, I said directly to Mr Forrest:
211.I need you to understand, Mr Forrest, that you committed a great number of very serious crimes. You have already spent a considerable period of time in custody, but ordinarily for such offences, you would spend more time in custody. However, having carefully reviewed the matter, I am satisfied that your participation twice in the Solaris Program, your participation at some length in the Restorative Justice Program, and your other circumstances that I have set out, justifies me in giving you an opportunity to now address in the community your drug addiction and hopefully some of your psychological challenges, so that you can be an honourable citizen, a member of the community who can be trusted and who will not prey on other people and their property or their possessions for your own selfish purposes.
212.If you really do commit yourself to this and work hard at what Karralika will provide, and it is no easy task, a lot of people fail at Karralika, but if you succeed, then I think that the community is entitled to trust you to be back in it, albeit with supervision and conditions. If you do not, then, unfortunately, the only alternative left to the Court is to send you back to gaol, and there is a high likelihood that that will become a revolving door for you.
213.So this is an important opportunity for you. Do not waste it and do not make me look like a fool for giving you this opportunity. If things get tough, and they will, there are options for you. One of the things is that you are under supervision; your parole officer is someone who can assist you to identify how you might address some of the difficulties. You will have psychologists at Karralika who will assist you, and they will no doubt help you to get some of the assistance that Dr Clout says you clearly need, and you need to work hard at that too because that needs to be managed in order for you to come back as a useful member of our society, but in particular to be a role model for your son.
214.Your parole officer is there as someone that can assist you to identify resources or alternatives if things are getting tough and you need someone outside Karralika, but you need obviously to get authority from Karralika to go out of the Program and see your parole officer; that should not be a major problem.
215.The second alternative is you can come back to Court, usually via your lawyer and, although I probably will not be around, the Court may say that things are not progressing the way that they should be, so why don’t we try something else, or the Court may say, "I am sorry, you have had your go. It did not work. You need to go back to prison and we will work it out from there."
216.If you run away, you will certainly go back to prison; there is no doubt about that. It might take a period of time but you will be found and you will be sent back to gaol, so there is no point in doing that. This is your real opportunity and whilst you have had a pretty terrible period of offending, you can put that behind you, and move on; there are others who have done that and I hope that this will be an opportunity for you to do the same.
Unfortunately, Mr Forrest did not take the opportunity fully. That is a pity, but is not an aggravating feature that requires a more severe sentence.
Similarly, that his failure might be said to make me look foolish and may be said to be an affront to me cannot be part of the sentence. See my comments in R v Curtis (No 3) [2017] ACTSC 101 at [4]-[5] which I apply here.
Further, that he used drugs within a week of being in Karralika is not a matter of particular aggravation. Any use of drugs is relevant. That it was soon after his admission to the Program is, in fact, arguably less serious than were it later in the Program, when he can be expected to have learnt skills to avoid drug use and an understanding of why he should do so. As a matter of ordinary human experience, a drug addict, released from prison where drugs are, while still available, presumably less easily available and within the custodial environment which makes such use more complicated, will be under a great temptation in the early stages of release into the community and courts, without in any sense condoning this, should not expect the behaviour of a saint.
Nevertheless, there are three matters that militate almost inevitably against further leniency for Mr Forrest. The first is that he did use illicit drugs and was discharged from Karralika. I have had no real explanation of why he did use drugs or the circumstances of their use. Had he returned forthwith to Court after his discharge, that may have permitted him to be admitted to another facility or, indeed, readmitted to Karralika, if that were possible. See R v Eyles (No 2) [2016] ACTSC 373. Alone, this would not necessarily require the sentence specified for non-compliance; it depends, of course, on the circumstances. Indeed, his almost immediate approach to CRS is some slight sign that the Deferred Sentence Order was not entirely inappropriate nor wasted.
Secondly, however, he did not comply with his bail conditions and report within four hours of discharge to the Officer-in-Charge of Tuggeranong Police Station. He did not, so far as I can tell, contact his probation officer or his lawyer. The only mitigation, though it is relatively minor, is that he did not flee. He went to his sister’s house, as I understand, though it took the police nearly 10 days to execute the warrant. He clearly knew the police were looking for him when he ran from them at the Rivett shops. That Mr Forrest had to be arrested is a serious restriction on the possibility of further leniency.
Finally, he has committed further offences. The principal offence of dishonestly taking someone else’s vehicle without their consent is a relatively serious one and an offence of dishonesty similar to those in respect of which the Deferred Sentence Order was made. The commission of further offences is more serious and erodes the trust that the Court requires to extend the leniency of permitted an offender into the community. See R v Carmody [2016] ACTSC 382 at [133] and R v White [2015] ACTSC 254 at [27].
Thus, I see no alternative but to proceed to sentence Mr Forrest to a custodial sentence of the kind that I foreshadowed would be imposed were he not to meet the obligations required of him under the Deferred Sentence Order and bail.
When making the order, I said, as I was required to do under s 118 of the Crimes (Sentencing) Act about the penalties that would be imposed for compliance or
non-compliance:
208.In my view, the total criminality of the offending, moderated by the principles of totality and recognising the pleas of guilty entered by Mr Forrest, the mitigating effect of his mental impairment on his offending, the rehabilitation he has achieved, and his participation in the restorative justice process, justifies a sentence of about six years imprisonment. That would, of course, be backdated to take into account the matters to which I have referred above. I also note that his period in the limited liberty of a residential rehabilitation facility would be taken into account: R v Elphick (No 2) at [86]-[90].
209.If Mr Forrest successfully completes the Karralika Program, I consider that he should be released then from custody with a substantial Good Behaviour Order. Were he not to complete the Program successfully, then he should complete the sentence of approximately six years imprisonment which would be imposed but, of course, with a non parole period of some significant length to show that the rehabilitation in the community has not been entirely successful.
That, in general terms, sets the bounds for the sentences now to be imposed other than for the further offences, though the Court is not necessarily bound to the precise terms of the foreshadowed sentence; fairness generally demands that it be followed.
Consideration
I take into account the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act. As I indicated in R v Forrest (No 2) at [195], general deterrence and punishment are important purposes in this case, given the serious nature of the offences, the number of them that Mr Forrest has committed, and the effect on the victims.
It now appears, too, that specific deterrence is important because Mr Forrest has continued to offend, showing disregard for the property rights of members of our community.
I do not ignore the efforts Mr Forrest made through his participation in the Solaris Program to effect his rehabilitation, but it had not been successful enough to protect him and the community when he was released. The other purposes now overshadow this. He may, nevertheless, ponder on why he failed and perhaps, if his commitment to rehabilitation is renewed, if only for his son’s sake, he may wish to undertake the Program again in an effort to be better prepared for his release into the community. I also take into account his willingness to address his drug addiction and his participation in the Restorative Justice Program, though neither have yet borne much fruit. It can take time.
I take into account Mr Forrest’s pleas of guilty. They are of somewhat lesser value in relation to the rolled-up counts, but, nevertheless, have been of some value to the administration of justice. His pleas to the fresh offences were made at a very early stage. Combined with his participation in the Restorative Justice Program, it shows some remorse, though the further offending shows that it has had a somewhat limited life. I do not think, however, that it was, in respect of these offences, other than genuine at the time.
I take into account the seriousness of the offences as described in these reasons and in R v Forrest (No 2). They do require a stern response from the Court.
I take into account the matters to which I am required to have regard as set out in s 33 of the Crimes (Sentencing) Act. So far as I know them, they are set out in these reasons and in R v Forrest (No 2), especially those parts incorporated into these reasons.
There are, of course, multiple sentences to be imposed. There are 41 sentences, each of which must be imposed under the principles set out in Pearce v The Queen [1998] HCA 57; 194 CLR 610. It is a pity that the government has not taken up my suggestion that a provision for a “general sentence” may be appropriate, which would make sentencing for so many multiple offences more manageable. See R v Ware [2016] ACTSC 264 at [139]; J by his litigation guardian Vardanega v ACT [2009] ACTSC 170; 234 FLR 399 at 419-20; [100]-[103].
In this case, the issue of totality is particularly important for the offences comprising the first series of the offences for the reason mentioned above (at [62]), to ensure a proper relationship with the sentences imposed by Robinson AJ.
I have carefully considered the length of each sentence to ensure that Mr Forrest is not punished twice. I have also considered whether the sentences should be partly or wholly concurrent because, for example, they are part of the same course of conduct. This is relevant for many of the offences where the offences of damaging property and theft, or burglary and theft, are part of the same course of conduct and should generally have a significant if not complete level of concurrency. This has to be moderated to some extent to take into account the rolled-up counts.
I have then reviewed the length of the term of imprisonment arrived at to ensure that the principle of totality is respected and that the total sentence is adequate to reflect the criminality of the offences committed, but not more than that, and that the total sentence is not excessive, but will leave open the realistic prospect of reform and hope for Mr Forrest to achieve his goals when he is released into the community. This may result in what is seen as leniency in the accumulation of the offences, but it is important to have regard not only to the total culpability of Mr Forrest’s offending, but the other relevant factors, such as his mental impairment, disadvantaged upbringing, still relative youth, and his participation in rehabilitation are still important, and requires a sentence that will be proportionate to the criminality and the relevant subjective circumstances to leave Mr Forrest with some hope for the reform which I am satisfied he does seek, however incompetently, he is currently doing so.
Both the Crown and Mr Forrest’s counsel submitted that, given Mr Forrest’s need for extended supervision in the community, it would be appropriate for there to be a somewhat lengthy parole period. While Mr Forrest may benefit from further rehabilitation in custody, it cannot be assumed that this will occur and the period in custody is punitive and not rehabilitative: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 139-40; [57].
Mr Forrest, please stand:
1. I confirm the convictions I entered on 6 March 2017 for each of the 38 offences included in the Amended Indictment dated 15 February 2017 and to which you pleaded guilty on 5 August 2016 and 15 February 2017.
2. For the offence of theft, being count 1, I sentence you to 12 months imprisonment to commence on 11 December 2015, that is to be concurrent with the sentences imposed by Robinson AJ on 27 September 2015. Had you not pleaded guilty, I would have sentenced you to 15 months imprisonment.
3. For the offence of damaging property, being count 2, I sentence you to six months imprisonment to commence on 11 December 2015, that is to be wholly concurrent on the sentence for count 1. Had you not pleaded guilty, I would have sentenced you to seven months imprisonment.
4. I cancel the Good Behaviour Orders made on 30 May 2014.
5. I impose the four months imprisonment which was suspended and direct that it commence on 11 October 2016, that is to be cumulative as to two months on the sentence for count 1.
6. For the offence of aggravated robbery, being count 3, I sentence you to three years imprisonment. To take into account pre-sentence custody and to have regard to totality, that sentence is to commence on 11 August 2015, that is to be cumulative as to 18 months on the sentence imposed as a result of the breach of the Good Behaviour Order made on 30 May 2014. Had you not pleaded guilty, I would have sentenced you to three years and nine months imprisonment.
7. For the offence of dishonestly driving someone else’s vehicle without their consent, being count 5, I sentence you to 12 months imprisonment to commence on 11 September 2017, that is to be cumulative as to one month on the sentence for count 3. Had you not pleaded guilty, I would have sentenced you to 15 months imprisonment.
8. For the offence of damaging property, being count 4, I sentence you to nine months imprisonment to commence on 11 January 2018, that is to be cumulative as to one month on the sentence for count 5. Had you not pleaded guilty, I would have sentenced you to 11 months imprisonment.
9. For the offence of burglary, being count 6, I sentence you to 18 months imprisonment to commence on 11 August 2017, that is to be cumulative as to four months on the sentence for count 4. Had you not pleaded guilty, I would have sentenced you to 22 months imprisonment.
10. For the offence of theft in the burglary, being count 8, I sentence you to 12 months imprisonment to commence on 11 February 2018, that is to be concurrent on the sentence for count 6. Had you not pleaded guilty, I would have sentenced you to 15 months imprisonment.
11. For the offence of theft from the motor vehicle, being count 9, I sentence you to 12 months imprisonment to commence on 11 February 2018, that is to be wholly concurrent on the sentence for count 8. Had you not pleaded guilty, I would have sentenced you to 15 months imprisonment.
12. For the offence of damaging property, being count 7, I sentence you to six months imprisonment to commence on 11 August 2018, that is to be wholly concurrent on the sentence for count 8. Had you not pleaded guilty, I would have sentenced you to seven months imprisonment.
13. For the offences of damage property, being count 10, I sentence you to nine months imprisonment to commence on 11 May 2018, that is to be wholly concurrent on the sentence for count 7. Had you not pleaded guilty, I would have sentenced you to 11 months imprisonment.
14. For the offence of burglary at Rivett, being count 11, I sentence you to 18 months imprisonment to commence on 11 December 2017, that is to be cumulative as to four months on the sentence for count 10. Had you not pleaded guilty, I would have sentenced you to 22 months imprisonment.
15. For the offences of theft, being count 12, I sentence you to 15 months imprisonment to commence on 11 March 2018, that is to be wholly concurrent on the sentence for count 11. Had you not pleaded guilty, I would have sentenced you to 18 months imprisonment.
16. For the offence of burglary at Chapman, being count 13, I sentence you to 18 months imprisonment to commence on 11 April 2018, that is to be cumulative as to four months on the sentence for count 12. Had you not pleaded guilty, I would have sentenced you to 22 months imprisonment.
17. For the offence of theft in that burglary, being count 14, I sentence you to 15 months imprisonment to commence on 11 July 2018, that is to be wholly concurrent on the sentence for count 13. Had you not pleaded guilty, I would have sentenced you to 18 months imprisonment.
18. For the offence of damaging property, being count 15, I sentence you to nine months imprisonment to commence on 11 January 2019, that is to be wholly concurrent on the sentence for count 14. Had you not pleaded guilty, I would have sentenced you to 11 months imprisonment.
19. For the offences of theft, being count 16, I sentence you to 15 months imprisonment to commence on 11 August 2018 , that is to be cumulative as to one month on the sentence for count 15. Had you not pleaded guilty, I would have sentenced you to 18 months imprisonment.
20. For the offences of damaging property, being count 17, I sentence you to nine months imprisonment to commence on 11 February 2019, that is to be wholly concurrent on the sentence for count 16. Had you not pleaded guilty, I would have sentenced you to 11 months imprisonment.
21. For the offence of burglary at Kingston, being count 18, I sentence you to 18 months imprisonment to commence on 11 August 2018, that is to be cumulative as to three months on the sentence for count 17. Had you not pleaded guilty, I would have sentenced you to 22 months imprisonment.
22. For the offences of damaging property, being count 19, I sentence you to nine months imprisonment to commence on 11 May 2019, that is to be wholly concurrent on the sentence for count 18. Had you not pleaded guilty, I would have sentenced you to 11 months imprisonment.
23. For the offences of theft in that burglary, being count 20, I sentence you to 15 months imprisonment to commence on 11 November 2018, that is to be wholly concurrent on the sentence for count 19. Had you not pleaded guilty, I would have sentenced you to 18 months imprisonment.
24. For the offence of burglary at Mawson, being count 21, I sentence you to 18 months imprisonment to commence on 11 December 2018, that is to be cumulative as to four months on the sentence for count 20. Had you not pleaded guilty, I would have sentenced you to 22 months imprisonment.
25. For the offences of damaging property, being count 22, I sentence you to nine months imprisonment to commence on 11 September 2019, that is to be wholly concurrent on the sentence for count 21. Had you not pleaded guilty, I would have sentenced you to 11 months imprisonment.
26. For the offences of theft in the burglary at Mawson, being count 23, I sentence you to 18 months imprisonment to commence on 11 December 2018, that is to be wholly concurrent on the sentence for count 22. Had you not pleaded guilty, I would have sentenced you to 22 months imprisonment.
27. For the offence of burglary at Phillip, being count 24, I sentence you to 18 months imprisonment to commence on 11 March 2019, that is to be cumulative as to three months on the sentence for count 23. Had you not pleaded guilty I would have sentenced you to 22 months imprisonment.
28. For the offences of damaging property, being count 25, I sentence you to eight months imprisonment to commence on 11 January 2020, that is to be wholly concurrent on the sentence for count 24. Had you not pleaded guilty, I would have sentenced you to 10 months imprisonment.
29. For the offences of theft, being count 26, I sentence you to 15 months imprisonment to commence on 11 June 2019 , that is to be wholly concurrent on the sentence for count 25. Had you not pleaded guilty, I would have sentenced you to 18 months imprisonment.
30. For the offence of dishonestly receiving stolen property, being count 27, I sentence you to 15 months imprisonment to commence on 11 August 2019, that is to be cumulative as to two months on the sentence for count 26. Had you not pleaded guilty, I would have sentenced you to 18 months imprisonment.
31. For the offence of burglary at Wright, being count 28, I sentence you to 18 months imprisonment to commence on 11 August 2019, that is to be cumulative as to three months on the sentence for count 27. Had you not pleaded guilty, I would have sentenced you to 22 months imprisonment.
32. For the offence of theft in the burglary, being count 38, I sentence you to 12 months imprisonment to commence on 11 February 2020, that is to be wholly concurrent on the sentence for count 28. Had you not pleaded guilty, I would have sentenced you to 15 months imprisonment.
33. For the offence of theft of a motor vehicle, being count 29, I sentence you to 12 months imprisonment to commence on 11 March 2020, that is to be cumulative as to one month on the sentence for count 38. Had you not pleaded guilty, I would have sentenced you to 15 months imprisonment.
34. For the offence of aggravated burglary at Macquarie, being count 30, I sentence you to 24 months imprisonment to commence on 11 August 2019, that is to be cumulative as to five months on the sentence for count 29. Had you not pleaded guilty, I would have sentenced you to 30 months imprisonment.
35. For the offences of damaging property, being count 31, I sentence you to 12 months imprisonment to commence on 11 August 2020, that is to be wholly concurrent on the sentence for count 30. Had you not pleaded guilty, I would have sentenced you to 15 months imprisonment.
36. For the offences of theft in that burglary, being count 32, I sentence you to 15 months imprisonment to commence on 11 May 2020, that is to be wholly concurrent on the sentence for count 31. Had you not pleaded guilty, I would have sentenced you to 18 months imprisonment.
37. For the offences of theft at the Gold Creek Village Car Park, being count 33, I sentence you to 15 months imprisonment to commence on 11 June 2020, that is to be cumulative as to one month on the sentence for count 32. Had you not pleaded guilty, I would have sentenced you to 18 months imprisonment.
38. For the offences of damaging property, being count 34, I sentence you to nine months imprisonment to commence on 11 December 2020, that is to be wholly concurrent on the sentences for count 33. Had you not pleaded guilty, I would have sentenced you to 11 months imprisonment.
39. For the offence of dishonestly receiving stolen property, being count 35, I sentence you to 12 months imprisonment to commence on 11 October 2020, that is to be cumulative as to one month on the sentence for count 34. Had you not pleaded guilty, I would have sentenced you to 15 months imprisonment.
40. For the offence of burglary at Chisholm, being count 36, I sentence you to 18 months imprisonment to commence on 11 July 2020, that is to be cumulative as to three months on the sentence for count 35. Had you not pleaded guilty, I would have sentenced you to 22 months imprisonment.
41. For the offences of theft in that burglary, being count 37, I sentence you to 15 months imprisonment to commence on 11 October 2020, that is to be wholly concurrent on the sentence for count 36. Had you not pleaded guilty, I would have sentenced you to 18 months imprisonment.
42. I convict you of driving on 21 July 2015 as a repeat offender whilst disqualified.
43. For that offence, I sentence you to four months imprisonment to commence on 11 September 2021, that is to be wholly concurrent on the sentence for count 37. Had you not pleaded guilty, I would have sentenced you to five months imprisonment.
44. I convict you of dishonestly driving someone else’s motor vehicle without the owner’s consent on 30 March 2017.
45. I sentence you to 12 months imprisonment to commence on 11 September 2021, that is to be cumulative as to 8 months on the sentence for count 37. Had you not pleaded guilty, I would have sentenced you to 16 months imprisonment.
46. That is a total sentence of seven years and one month.
47. I set a non parole period of four years and one month to commence on 11 August 2015 and end on 10 September 2019.
48. I convict you of parking so as to obstruct other vehicles.
49. I fine you $250 and give you no time to pay.
50. I convict you of being an unlicensed driver.
51. I fine you $500 and give you no time to pay.
52. I request the Registrar of the Supreme Court of the ACT to provide to the Director-General and the Sentencing Administration Board a copy of the Report of Dr Danielle Clout dated 7 December 2016.
53. I disqualify you from holding or obtaining a driver licence for a period of two years and six months from today.
[His Honour then spoke directly to Mr Forrest]
I am sure you understand the sentence but I must explain it to you anyway. It is a seven year one month sentence with a four year one month non parole period, which entitles you to apply for parole on 10 September 2019. That is a significant sentence but these were significant offences. I am not going to lecture you as you know that you have done the wrong thing, and you know that I gave you an opportunity which unfortunately you did not take. The whole period that I have sentenced you to is quite a long one but it is a fairly low non parole period, because I believe, ultimately, that if you really set your mind to it, you can turn your life around. You have an absolutely shocking record, but everyone is redeemable. Turn your life around and get on with it, be a father to your son and be useful in the community.
I am sorry, I am starting to lecture you; I do not mean to do that, but this is your only opportunity. If you do not take this then it is the revolving door; you will be just back in and out, in and out of gaol. That is the best I can do for you, to protect the community and in sentencing you, to make clear that the kind of activity in which you were involved is completely unacceptable. People are entitled to be protected in their homes and have their property kept safe.
Do the best you can in the time that is available to you and I hope that you will learn some of the things in custody, not the bad things but the good things, of course, and you may be able to re-establish yourself in the community, and connect with your son and family.
| I certify that the preceding ninety-four [94] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 11 July 2017 |
6
26
10