R v Foster
[2021] ACTSC 229
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Foster |
Citation: | [2021] ACTSC 229 |
Hearing Date: | 26 March 2021 |
DecisionDate: | 29 March 2021 |
Before: | Refshauge AJ |
Decision: |
(a) Stephen Foster be required to comply with the core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) for the term of the Order; (b) Stephen Foster be required to complete the residential drug rehabilitation program by Canberra Recovery Services at Fyshwick, and he be directed to travel directly from the Court to Canberra Recovery Services to arrive by 1:00 pm today, 29 March 2021, and admit himself to that program, remain in the program until it is completed, and obey all the rules of the facility and the program and any directions of the person in charge of the facility; (c) Stephen Foster be directed not to leave Canberra Recovery Services before he completes the program without the approval of the Court or in accordance with the rules of the program, and if he is discharged or leaves the facility or the program, present himself to ACT Corrective Services by 4:00 pm on the next business day after he is discharged or leaves, with a view to having the Drug and Alcohol Treatment Order reviewed; (d) Stephen Foster be directed to undergo any program of treatment or counselling and urinalysis, case management or other program, as may be required by any member of the Treatment Order Team or by order of the Court from time to time; and (e) Stephen Foster be directed to comply with any direction of the Court from time to time about attendance in Court, in person or by electronic means.
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Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated burglary – burglary – Dishonestly driving without consent – Fail to appear – Possessing a knife – Disqualified driving – Drug and Alcohol Treatment Order – Rehabilitation |
Legislation Cited: | Bail Act 1992 (ACT) ss 22, 49 |
Cases Cited: | Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 |
Texts Cited: | Weatherburn, D ‘What Causes Crime?’, (February 2001) 54, Crime and Justice Bulletin, NSW Bureau of Crime Statistics and Research |
Parties: | The Queen (Crown) Stephen Foster (Offender) |
Representation: | Counsel N Deakes (Crown) K Gunther (Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT (Crown) KG Criminal Law (Offender) | |
File Number(s): | SCC 291 of 2020 |
REFSHAUGE AJ:
Introduction
Research into the causes of crime is difficult because of the multiplicity of factors and their interactions. A most useful piece of research was Dr Don Weatherburn's 'What Causes Crime?' (Weatherburn, D, ‘What Causes Crime?’, 54 Crime and Justice Bulletin (Feb 2001 BOCSAR, Sydney NSW)). What I read there, which is consistent with my experience, is that the issue is complex, but that, by and large, offenders are not so much bad people as people who do bad things. These bad things are caused by stupidity, inattention, emotion, poverty, homelessness, inadequate parenting and neglect, peer pressure, greed and unemployment amongst other things.
The role of drug dependency in crime is complex in itself, the evidence suggesting that consumption does not cause crime, but that the onset of crime usually precedes illicit drug consumption. Thus, while a large number of offenders use illicit drugs, their rehabilitation is not limited to achieving abstinence, but addressing issues such as good health, self-esteem, creating a pro-social network of support and avoiding drug consuming associates, gaining employment, housing and other matters, are also important. Hence, the value of the Drug and Alcohol Sentencing List in the ACT Supreme Court is to provide support for managing dependency, but without ignoring these other matters.
Stephen Foster, who has committed offences of aggravated burglary, burglary, dishonestly driving a motor vehicle without the owner's consent, failing to appear in accordance with a bail undertaking, possessing a knife in a public place without a reasonable excuse and driving whilst disqualified as a repeat offender, and who is before me for sentence on his plea of guilty, seeks that a Drug and Alcohol Treatment Order (a Treatment Order) be made for him, under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act).
The Crown tendered its Sentencing Tender Bundle, to which no objection was taken, and there was no challenge to its contents, which included the formal documents of committal and transfer from the ACT Magistrates Court, containing, inter alia, the Magistrates Court bench sheets, constituting the information laying the charges and the police Statement of Facts. The Tender Bundle also included an agreed Statement of Facts, Mr Foster's Criminal History, some photographs, a warrant and three Drug and Alcohol Treatment Assessments (Suitability Assessments) under s 46J of the Sentencing Act. One Suitability Assessment, dated 4 February 2021, was prepared by ACT Corrective Services and the other, also dated 4 February 2021, was prepared by ACT Alcohol and Drug Services. A Case Plan as well as an updated report of ACT Alcohol and Drug Services, dated 3 March 2021, were also included.
Mr Foster, through his counsel, tendered without objection a letter from Canberra Community Law, dated 10 February 2021, a letter from Directions Health Services, dated 4 February 2021, and a Pre-Sentence Report, dated 14 January 2021. No challenge was made to the contents of any of these letters or reports.
No oral evidence was given before me. Accordingly, I make the following findings from these documents.
The Facts
At about 10:00 pm on 5 June 2020, Mr Foster entered the secure underground carpark of a motel in Belconnen. He had no authority or consent to be there. He went to a storage locker containing personal property of the owner and director of the motel. The locker was locked with a key lock, handle and drop bolts at the top and bottom of the door.
Mr Foster attempted, with an object that he brought with him, to manipulate the handle of the door, but was unsuccessful. He walked away and then attempted again to open the locked handle with another object. He was again unsuccessful in his attempt.
He moved over to a utility space in a brick structure within the carpark and then returned with a small torch, which he used to examine the locker and to try to look under the door and manipulate it.
Mr Foster then tried to force the door open with his body, still unsuccessfully. He took another object out of his pocket and attempted to insert it into the top of the door, without success. He then made a final attempt to gain access through the bottom of the door, but was unable to do so. During all this time, no guest or staff member entered the carpark. He then left the carpark and the motel. The photographs tendered show Mr Foster attempting to gain entry to the storage lockers.
There was no evidence of any damage caused by Mr Foster when entering the carpark or during the six unsuccessful attempts at opening the storage locker. Of course, having been unable to access the storage locker, he stole nothing from it, nor is any other property said to have been taken by him. His activities were captured on the motel’s CCTV, from which some photographs were taken and were tendered, as noted above (at [4] and [10]). Mr Foster was later identified by police who were attending an unrelated incident on 2 October 2020. These were the events which constituted the offence of burglary.
Unfortunately, I am unable, from the material before me, to describe adequately the circumstances giving rise to the offence of failing to appear in court in accordance with a bail undertaking.
From an inspection of Mr Foster's Criminal History, I note that he committed five traffic offences and an offence of minor theft, said to have been committed on 3 October 2020, and an offence of minor theft, alleged to have been committed on 9 October 2020. This latter offence of minor theft, however, does not appear to have been charged at that stage. I surmise that these are the matters for which he was arrested. These matters were not dealt with until 18 January 2021, so, again, I surmise that he was granted bail when first appearing in Court on those charges. I note that, helpfully, the Crown, in its thoughtful and comprehensive written submissions, confirmed that these were the charges on which bail was ultimately granted.
I surmise further that he did not appear in Court on 26 October 2020, to when it appears the proceedings had been adjourned. I find that, on that day, the ACT Magistrates Court issued a warrant for his arrest, which was included in the Crown Sentencing Tender Bundle and from that I can, with confidence, infer that he failed to appear on 26 October 2020, the date referred to in the charge and the date of issue of the warrant. These appear to be and I accept were the facts comprising the offence of failing to appear in accordance with a bail undertaking. I know nothing more of the circumstances of this offence. I do not have any explanation from Mr Foster as to why he failed to appear.
While on bail, however, Mr Foster and another male entered a carpark of an apartment complex on 31 October 2020 at about 3:44 am. The apartment complex was in the course of construction and, of course, unoccupied and was fenced off by a cyclone fence. Their entry triggered an alert and two security guards patrolling in the area attended at the site and intercepted Mr Foster. They asked him what he was doing and told him that he was being detained for trespass.
He attempted to flee, running to a Kia Rio motor vehicle parked about 50 metres away. Mr Foster resisted when intercepted by one of the guards and hit out at the guard, as well as reaching into his pockets, causing fear in the guard that he had a weapon, a knife, which he actually did have, though he did not produce it.
The Kia motor vehicle was in Gribble Street, Gungahlin, which was a road open to and used by the public. Mr Foster got into the vehicle, which was already occupied by a woman in the passenger seat. Mr Foster then drove the vehicle off. One of the guards, however, became trapped in the car door when trying to detain Mr Foster. Mr Foster was only able to drive forward about 3 metres when the other guard managed to remove the car keys from the vehicle's ignition. The guard trapped in the car door suffered no injuries. The two guards managed to get Mr Foster out of the car and restrain him until police arrived.
Police were contacted by the security guards and attended. They arrested Mr Foster. They searched him and found a box cutter in his jacket and a silver doorhandle piece. Police, after inquiring with the Road Traffic Authority, identified that Mr Foster did not have a current ACT driver licence and that he had not had one since 30 August 2006.
The Kia motor vehicle had been stolen on 19 October 2020. The registration plates on the car were not those assigned to the vehicle, but had been stolen from another Kia Rio motor vehicle on 23 October 2020.
These facts and circumstances comprise the offences of aggravated burglary, possessing a knife in a public place without reasonable excuse and driving whilst disqualified as a repeat offender. There is no offence of theft charged against Mr Foster.
The Proceedings
The warrant for Mr Foster's arrest, referred to above (at [14]), was executed on 31 October 2020 and he was arrested for the breach of bail offence and, also, for the offences committed that morning. He appeared in the ACT Magistrates Court later that day and was remanded in custody until 8 December 2020. On that day, he was charged with the other offence of burglary from 5 June 2020 and further remanded in custody until 16 December 2020.
On 16 December 2020, he pleaded guilty to all the offences he is now facing. This was prior to the Prosecution Brief of Evidence being prepared and delivered. He declined to consent to the charges being dealt with summarily. This plea that he entered may be accepted as an early plea.
He was committed to this Court on the charges of aggravated burglary, dishonestly driving a motor vehicle without the owner's consent and burglary. The charges of possessing a knife in a public place without reasonable excuse, driving whilst disqualified as a repeat offender and failing to appear in accordance with his bail undertaking were transferred to this Court under s 90B of the Magistrates Court Act 1930 (ACT) as related offences to be dealt with under Part 8 of the Supreme Court Act 1933 (ACT). Mr Foster remained in custody.
The Magistrates Court clearly intended that he be considered for referral to the Drug and Alcohol Sentencing List of this Court, as it ordered an assessment of his eligibility for a Suitability Assessment (as to which see R v McHughes [2021] ACTSC 92 at [7]). He remained in custody.
That eligibility assessment, which was completed in early January 2021, showed him to be eligible for a Suitability Assessment and, on 8 January 2021, when he appeared before me, I ordered Suitability Assessments be prepared and I listed the proceedings for sentence on 12 February 2021.
Mr Foster was, however, still facing nine charges in the Magistrates Court, which could not be dealt with in the Supreme Court because it had no jurisdiction in respect of them. They were neither indictable offences, which are, of course, the only offences which, subject to special statutory provisions, are within the Court's jurisdiction, or related or backup offences to indictable offences already committed, under s 90A of the Magistrates Court Act. The Court has ordinary jurisdiction under ss 20 and 68 Supreme Court Act to try indictable offences and special statutory jurisdiction to try summary offences under, for example, s 68CA of the Supreme Court Act, one of the special statutory provisions to which I have referred. While these remaining offences were summary offences only, some still attracted maximum penalties, including terms of imprisonment which, if imposed, would, under s 12A(1)(c) of the Sentencing Act, render Mr Foster ineligible for a Treatment Order.
It became obvious that this could be a problem. However, in fact, it turned out that it was not a problem, as, on 18 January 2021, Mr Foster was sentenced to terms of imprisonment that, in total, commenced on 31 October 2020 and extended only to 31 January 2021.
That, however, was not the end of Mr Foster's problems, for he was then charged with a minor theft offence committed on 10 September 2020, but which, apparently, did not come to light until 2021. He was separately charged with that offence and it was listed for sentence on 19 February 2021. I then, on 5 February 2021, vacated the sentence date for the charges with which I was dealing and listed the matter for mention on 5 March 2021, so that consideration could be given to the effect of any sentence imposed on Mr Foster for this further minor theft offence.
On 19 February 2021, Mr Foster was sentenced for the minor theft offence to two months imprisonment to end on 28 February 2021 and, on 5 March 2021, I listed the proceedings before me for sentence on 26 March 2021.
During this time, apart from periods of imprisonment for the above offences imposed by the Magistrates Court, Mr Foster has now been in custody solely on the offences, which are now before this Court, since 1 March 2021 until today and, if I sentence him today, the sentence will ordinarily commence today (s 62 of the Sentencing Act), but the Pre-Sentence Custody need only account for 28 additional days.
The Offences
The offences to which Mr Foster has pleaded guilty are all statutory offences for which the legislature has prescribed maximum penalties. The maximum penalties are very important and a sentencing court must pay particular attention to them as they provide a yardstick against which the court can assess the relative seriousness of the offences in comparison to other offences: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 133; [31].
It is to be noted, of course, that, where a financial penalty is included in the maximum, it is not only the term of imprisonment that comprises the maximum penalty: Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 at 309; [46]. The actual seriousness of each individual offence as charged, however, is to be determined by the facts of the individual case: Ibbs v The Queen (1987) 163 CLR 447 at 451-452. The Courts have, over the years, identified particular factors that are relevant to assist in determining that.
Aggravated burglary is an offence against s 312 of the Criminal Code 2002 (ACT) and renders Mr Foster liable to a maximum penalty of 20 years imprisonment, or a fine of $320,000, or both. It is, thus, to be regarded as a very serious offence.
Burglary is an offence contrary to s 311 of the Criminal Code and attracts a maximum penalty of 14 years imprisonment, or a fine of $224,000, or both. It is, as would be expected, a less serious offence than the aggravated version, but still a serious offence.
The relevant factors that must be considered when determining a sentence for both aggravated burglary and burglary have generally been regarded as similar, though, of course, allowance has to be made for the statutory identified aggravating elements for the more serious offence: see, for example, Fusimalohi v R [2012] ACTCA 49 at [15], per Burns and Lander JJ; R v Forrest (No 2) [2017] ACTSC 93 at [76]-[81]; and R v Crawford (No 1) [2020] ACTSC 245 at [35]. These factors have been considered in many cases and in R v Hancock [2021] ACTSC 52 at [33], I summarised them as follows:
(a) Whether the property on which the offender trespassed was residential, which would be more serious, though an underground carpark in an apartment complex is perhaps not so serious, but not at the level of commercial premises;
(b) Whether there was damage committed on entry or while the offender was in the premises, unless separately charged, and whether there was vandalism or scattering contents of the premises about, or the like;
(c) Whether the occupants of the premises were present or the burglary was committed at a time when they were likely to be present;
(d) The motivation for the burglary;
(e) Whether there was premeditation, planning or organisation, especially professional organisation or execution;
(f) Whether there were or likely to be elderly, sick or disabled persons at the premises, especially aggravating if the offender knows this;
(g) Whether the offence was committed in a series of repeat incursions into the same premises; and
(h) The actual trauma suffered by the occupants.
As to (a) above, however, this case, and also R v Po’oi [2021] ACTSC 151, suggest that the binary option of residential versus commercial premises is no longer sufficient as a way to consider the question of the nature of the premises. The burglary of an underground carpark of a residential apartment complex was the first to challenge that binary in R v Forrest (No 2) at [77].
In R v Po’oi, the question of a construction site was raised. Even if the building to be erected is to be a residence, the site is not residential and is really just a workplace. It was, in that case, however, in the middle of an otherwise residential suburb and, indeed, the neighbours were the people who first disturbed and apprehended Mr Po’oi in that aggravated burglary.
Thus, this may require now a more nuanced approach. Commercial premises in a residential area, such as a building site or a shop in an apartment complex, may have some characteristics of a residence. Attention to the actual factors that make a residence a more serious target of a burglary, such as the likely presence of occupiers, including children and elderly or disabled people, is a particular factor and may instead now need to be considered, rather than just some binary description. Thus, commercial premises may have some relevant features of residential premises depending on their location and circumstances.
Given the location of the burgled premises in this case, it seems unlikely that there would have been neighbours to have been disturbed, though it was located amongst other residences, but these appear to be apartment blocks themselves, unlike a street of detached houses of one or two storeys.
While there would have been property of value on the premises when Mr Foster entered them, though the actual evidence on this was not helpful, I accept that there would have been, at least, building materials. Tools may likely have been secured or taken away by their owners at the end of the working day. There may have been items to be installed in the units as they neared completion, but the evidence is silent on this matter, although the implication from the silver doorhandle piece in Mr Foster's possession is relevant. Of course, aggravating features on sentence must be proved beyond reasonable doubt: R v Olbrich (1999) HCA 54; 199 CLR 270 at 281; [27].
In any event, the risk of there being personal valuables, including items of sentimental value, would be so unlikely as to be irrelevant as a consideration in this particular case.
Thus, as the Crown properly accepted, the aggravated burglary by Mr Foster ‘is not a matter where the facts justify a greater severity of the objective seriousness appropriate for a burglary of a residential property.’
Of course, it was an aggravated burglary and both the maximum penalty and the circumstance of aggravation justifies appropriate severity. That another person was present, the unknown male, does make it more serious. Two people are able to do more damage, take more property, allow one, at least, to evade apprehension, as happened here, and that departure may complete any theft which apprehension may otherwise abort, though there was no evidence of that here, and two or more people confronting anyone seeking to investigate or stop the burglary would be more challenging, threatening and leave such a person at greater risk than if it were just one person.
Security guards did attend and attempted to apprehend Mr Foster. While they were by no means in the same category of residents, Mr Foster did struggle with them. An important difference is that they had been alerted to the burglary and would have been prepared for dealing with intruders, for which I can reasonably assume they would have received some training. That, of course, does not mean that the fact that Mr Foster hit out at them or caused fear by reaching into his pockets, perceived as seeking a weapon, is acceptable behaviour, and, in fact, it makes the burglary somewhat more serious.
There was no evidence of any damage caused to the property by the entry or presence of Mr Foster and the unknown male during the aggravated burglary. There does not seem to have been any particular premeditation or planning in the commission of these offences.
Finally, Mr Foster was in possession of a silver doorhandle piece, as I have noted above (at [18]), as well as the knife, or box cutter, which was the subject of a separate charge. The doorhandle was not subject of a theft charge, nor did the Crown submit that it was taken from the construction site, although Mr Foster's counsel did seem to concede that it was. As she reasonably submitted, however, although the value was unknown, it would not aggravate the offence to any significant degree.
As to the burglary, the premises on that occasion was an underground carpark of a hotel, again raising the binary challenge - not a residence but a business, but where people do stay, including overnight. I had no evidence of how many guests were present and, given that it was still within, but at the end of, the more restrictive period of the response to the COVID-19 pandemic, there may not have been many, but certainly some: see R v Horne [2017] ACTSC 36 at [22].
In fact, Mr Foster was not disturbed. The burglary, however, did not occur particularly late at night and guests or staff may very well have been likely to have entered the carpark.
No damage was caused on entry or in Mr Foster's multiple, but unsuccessful, attempts to access the storage locker, and, as he did not access it, nothing was stolen from it or, indeed, from the carpark or elsewhere. Though he did bring some apparent tools with him, they were quite ineffective, suggesting that any premeditation or planning was of a very limited and inept kind.
The other indictable offence was the dishonestly driving of a motor vehicle without the owner's consent. This is an offence prohibited by s 318(2) of the Criminal Code, which provides for a maximum penalty of five years imprisonment, or a fine of $80,000, or both. Such an offence is, despite its lesser maximum penalty, still a serious offence, especially given the value of the motor vehicle to the owner: see R v Roux (No 2) [2015] ACTSC 361 at [78].
Factors to be especially considered in the sentencing for this offence are whether the offender drove the motor vehicle, which is more serious, or rode in it, the duration of the driving or riding and the nature of the driving: R v Elphick [2021] ACTSC 9 at [114]. I add that other matters that may be relevant are the value of the vehicle, though evidence is rarely given of that and has not been given in this case, whether the offence was premeditated, whether there was any damage caused to the vehicle (R v Hodge [2019] ACTSC 15 at [17]), the purpose for which the motor vehicle was taken (Rogers v Green [2008] ACTSC 78 at [26]), whether it was used in the commission of another offence (R v Lock [2016] ACTSC 319 at [13]) and whether it was returned to the owner.
In this case, the driving was for a very short period, but was in connection with the aggravated burglary and his attempt to escape detention. There is no evidence to suggest that Mr Foster drove the motor vehicle to the site of the aggravated robbery. There was another male and, indeed, when Mr Foster returned to the vehicle, a woman was also in it, though in the passenger seat. There is no evidence that Mr Foster originally took the motor vehicle or used it before the occasion which is the subject of this offence.
The fact that Mr Foster drove the vehicle off with a security guard trapped in a door, where the guard had been trying to catch him, again makes the offence more serious. That he was only stopped from driving away by the other guard managing to remove the key from the car's ignition tends to moderate the suggestion that it was only driven for a short period. There is no doubt that, had that inhibition of him fleeing from the scene not occurred, he would have continued to decamp.
I turn then to the transferred offences. The first I consider is the possessing of a knife in a public place without a reasonable excuse, an offence against s 382(1) of the Crimes Act 1900 (ACT), which sets a maximum penalty of six months imprisonment, or a fine of $1600, or both.
The Courts have regarded the possession of knives as a serious matter because of their potential to cause serious harm, including death. As Higgins CJ pointed out in R v Griggs [1999] ACTSC 22 at [41], ‘a knife is always loaded.’ Nevertheless, a sentencer must be careful not to punish an offender because of mere possibilities that are neither intended, nor likely: Law v Ilievski [2012] ACTSC 291 at [125]. Indeed, in this case, Mr Foster, although reaching into his pocket when detained by the security guard, did not produce the knife and there was no evidence of its use at all, nor, as pointed out by his counsel, did he even threaten to use it. That does moderate the seriousness of the offence.
The offence of failing to appear in accordance with a bail undertaking is an offence contrary to s 49(1) of the Bail Act 1992 (ACT) and renders Mr Foster liable to a maximum penalty of two years imprisonment, or a fine of $32,000, or both. I describe this offence in R v McMahon [2014] ACTSC 280 at [97] as follows:
Finally, failing to comply with a bail undertaking is a serious offence. It is an important part of the integrity of the criminal justice system. The prevalent and consequent expense occasioned by such offences as well as the seriousness led Crispin J to suggest in Ursino v Read [2005] ACTSC 106 at [12] that “in the absence of any significant mitigating factors, custodial sentences should be expected for offences of [failing to appear in answer to a bail undertaking]”.
See also R v Kristiansen [2020] ACTSC 14 at [38].
Nevertheless, it is important to note, as Loukas-Karlsson J pointed out in KN v Frizzell [2020] ACTSC 217 at [87], those comments ‘should certainly not be interpreted in a manner that is inimical to, and inconsistent with, the individual sentencing discretion and instinctive synthesis.’
In this case, no explanation was offered for the failure to appear. I note that he committed offences while on bail. He has been, or will be, sentenced for those further offences and, in sentencing for them, I will be required to take into account that they were committed while he was at the conditional liberty that bail provided. In my view, these matters do not aggravate the offence itself very much in this case because of that, or, to the extent they do, would require a degree of concurrency of the respective sentences.
It was also pointed out that the failed appearance was for a mention in the Magistrates Court rather than, for example, for sentencing or a contested hearing. That does, to a limited extent, mitigate the seriousness of the offence for the consequences are somewhat less in the disruption to others, but there is still a cost to the community and delay in the administration of justice.
Finally, Mr Foster drove whilst he was disqualified from doing so. He is charged as a repeat offender. This is an offence against s 32(1)(a) of the Road Transport (Driver Licensing) Act1999 (ACT), which provides for a maximum penalty of 12 months imprisonment, or a fine of $1,600, or both, together with an automatic licence disqualification for two years for a repeat offender.
The basis for him being a repeat offender is that he was convicted on 18 January 2021 of another offence under that section. Thus, when I convict him today of that offence, he will be a repeat offender under the definition in s 32(8) of the Road Transport (Driver Licensing) Act.
The offence itself, despite the moderate maximum penalty, is serious as it amounts to a defiance of a court order. I discussed the relevant factors in R v Tonna (No 1) [2020] ACTSC 360 at [30] and they include the recency of the disqualification, the duration of driving, whether it was associated with other offences and the nature of the driving. It is also relevant to consider whether it was contumacious or not, which may be shown by repetitive driving whilst disqualified or clear defiance of the court order for convenience: see Cotter v Corvisy at [38]-[34].
In this case, the disqualification was not so recent; it was a three-year disqualification made by the Magistrates Court on 30 January 2018. The driving was in connection with the aggravated burglary offence, however, and the second since the original disqualification, though some months apart. The fact that it continued despite the security guard being trapped in a door makes it a somewhat more serious offence, though that factor is also relevant to the offence of dishonestly driving a motor vehicle without the owner's consent and he should not be punished twice for the same factors.
I note, too, that the Learned Magistrate, when convicting Mr Foster in January 2021, sentenced him to a fine of $200, though he did extend the automatic licence disqualification. Given that the disqualification of 24 months is automatic and cumulative (Smith v Stivala [2018] ACTSC 309 at [39]), I consider a more severe sentence, but no more than the statutory disqualification, is appropriate.
Subjective Circumstances
Mr Foster is not a perfect historian and I have had some difficulty in correlating the reports I have from the agencies whose letters were tendered by him, from the Suitability Assessments, neither of which were always entirely consistent with each other, and from the Pre-Sentence Report that he also tendered.
Nevertheless, I believe I can make some findings that give a generally helpful picture of his personal circumstances.
Mr Foster was born in April 1971, so he will turn 50 shortly. He was the youngest of three boys born to his mother. His elder brothers were, however, a lot older than he was and he was effectively brought up as an only child. He appears to have had a supportive childhood and continues to have supportive contact with his parents, though they live in Ulladulla, New South Wales. He has little contact with his brothers.
He was an average student at school, but continued with his education until Year 10 and then left and worked for three or four years with his father as a ceramic tiler in his father's tiling business. He had no further education or training, but did work as a painter for about 14 months from when he was released from custody prior to these offences. The position ended when the response to the COVID-19 pandemic took hold and, it appears, partly due to his drug use.
He had a major relationship which lasted for either 18 or 22 years, during much of which he was using heroin. There were five children born of the union and he has had little to do with four of them. Almost all are now adults and he has had no contact with them for some years.
The relationship had some challenges, not least of which was Mr Foster's heroin use for 16 or so years of it. His fifth child is now eight or nine and he has some occasional contact with her. When he was homeless after his spell in custody, he was able to stay with his former partner and his fifth child for about 14 weeks while he was employed, but the relationship is problematic and he left in December 2019. He appears now to have separate contact with his daughter from time to time.
His reporting of health issues is somewhat inconsistent. He reports to some that he has no physical or mental health issues, while others recount that he has suffered shingles. It has also been said that his General Practitioner has diagnosed him with depression. He had nine teeth removed in 2019, but his living instability has prevented him from getting dentures.
When the relationship with his former partner broke down in 2013, he voluntarily vacated his public housing to his partner so that she and the children would have a home. He experienced many years of severe homelessness, couch surfing on occasions, sleeping rough and sleeping in cars, with him unable to eat on occasions or take care of his health and personal care.
He has sought assistance from Canberra Community Law to access Housing ACT and has been identified as a possible candidate for a new pilot housing program, with assistance to help him sustain a tenancy. If that proves unavailable because of his legal situation, Canberra Community Law will continue to assist him. He clearly wishes to remain in Canberra to maintain contact with his daughter and to work on reconnecting with his other children.
The versions of his experience with alcohol and other drugs and treatment have been a little disconnected, but broadly similar.
He began drinking alcohol at about age 14 or 15, initially only at weekends, but more frequently as an adult.
In one version, he said that his drug use commenced at age 17, when he engaged with antisocial peers and drug use. Another version said that he started roaming the streets at age 14 and commenced cannabis use at about age 15. From age 21, his use of cannabis became more sporadic, but he did smoke cannabis on the night of the aggravated burglary in October 2020.
He commenced using heroin at either age 17 or age 20 and has used daily since then, except when in custody or during a period of 14 months abstinence from 2019. His use could cost him $1,000 a day, which gives a perspective to his offending. It was his use which led to the end of his employment with his father, as mentioned above (at [68]). He had used in October 2020, presumably before he was arrested.
His use of amphetamine was also a little unclear. To one reporter, he said that he commenced using at age 16 or 17 years, consuming every weekend until he was 21 years old, but to another he said that he did not start using until he was 30 years old. He stated using daily from age 39, injecting half a gram each day. In any event, prior to the most recent period on remand, he was using both heroin and amphetamine daily and that is the time during which he committed the offences.
He started using cocaine in his 30s, but only sporadically and his last use was in August 2020. He has also used some medications, some on non-prescribed bases.
He has engaged with alcohol and other drug treatment from time to time. He says that in his early 20s he attended various rehabilitation centres in addition to spending periods of time on pharmacotherapy programs. He participated in a methadone program for five years from the age of 35 and, on occasion, also while in custody, but when leaving custody would dose inconsistently and then ceased treatment.
Mr Foster commenced accessing support and treatment from Directions Health Services from about 2012. His engagement was intermittent, though he did complete an alcohol and drug awareness harm prevention program, which consisted of three 90 minute sessions, and he also completed eight sessions of the SMART Recovery program. In addition, he accessed some counselling and case management.
From 20 July 2020, he completed three counselling sessions with an alcohol and other drugs practitioner and continued with phone contact, most recently on 7 January 2021, for occasions of brief intervention.
He says that, when committing the current offences, he was under the influence of heroin and methamphetamine, which is consistent with his reported drug use.
He has a long criminal history, dating back to 1990, including a record for a few offences in New South Wales. There are 84 offences on his record. He has many traffic offences on his record, including ‘technical driving offences’ (R v Norton [2019] ACTSC 111 at [6]), some involving offences of various forms of driving without appropriate authorisation.
As may be appropriate, apart from the traffic offences, most of the offences are those likely to be associated with his drug use or homelessness. The vast majority are dishonesty offences, including 26 theft or minor theft offences, but also 9 burglary offences. He also has 4 offences of driving under the influence of alcohol or a drug and 6 offences of possessing drugs on his record.
He has only one recorded offence of common assault, but, in a worrying history, has five prior offences of failing to appear in accordance with a bail undertaking in his history. He also has breached Good Behaviour Orders or other court orders on six occasions. There were, however, significant periods when he did not offend, namely between 1999 and 2001, 2003 and mid 2005, mid 2006 and 2010, 2011 and 2012, 2014 and 2015, 2016 and 2018, and 2018 and late 2020.
Sentencing Practice
Under s 33(1)(za) of the Sentencing Act, a sentencing court is required to have regard to current sentencing practice. I have set out in the R v Mathews [2020] ACTSC 364 at [44]-[49] the appropriate way to approach this issue and I shall follow what I there said.
It is helpful, in a limited way, to have regard to the statistics recorded in the ACT Sentencing Database, though there are quite strict limits on the value of such statistics and, of course, the principles that lead to sentences are more important. I bear that in mind when considering the statistics.
Thus, for the offence of aggravated burglary the Database shows that, in this Court, for the offenders committing that offence, 61% are recorded in the Database as being sentenced to fulltime imprisonment. A small number received an Intensive Corrections Order or Periodic Detention (which is no longer available). For six offences, a Good Behaviour Order was made, but, regrettably, no sentencing remarks were available. For the remainder, a partially or wholly suspended sentence was made.
For the offences for which fulltime imprisonment was imposed, sentences ranged from 6 months for 2 offences, to 7 years for 1 offence. The majority were in the range of 12 months to 4 years and 6 months. Over half of the sentences were periods between 13 months and 30 months. Because the sentencing remarks are not always available, which is a matter of great regret, it is difficult to get a good picture of the principles applied to reach these sentences, but many of them are set out in the section above on the various offences.
In relation to the offence of burglary, the picture is interestingly different. Approximately 96% of sentences recorded for burglary were of imprisonment. Just over 72% of offenders were sentenced to fulltime custody. Of those, 21% of sentences were between 7 and 12 months, and 35% were between 13 and 18 months duration. Two sentences were of four years and six months, and one each of four years and 10 months and five years and 10 months.
As I noted in R v Mathews at [50], the sentencing remarks in respect of the sentence of 4 years and 10 months gave no clear indication of why that sentence was of that length and the sentencing remarks for the longer sentence of 5 years and 10 months were not available.
Some further statistics are available, but are not terribly helpful, as they were not directly related to the outcome, but only to the totality. Thus, for example, 50% of offenders who committed an aggravated burglary pleaded guilty in the Supreme Court. Of the offenders, 31% were under 20 years old and 6% were over the age of 41 years. The vast majority were male, at 91%.
The Crown referred me to five decisions said to be possibly of some assistance, though it was accepted that the wide range of circumstances and the fact that the charge is relatively common makes comparability difficult. The decisions included two of my recent decisions, R v Novakovic (a.k.a Noland) [2021] ACTSC 62; and R v Crawford (No 1). I am, of course, well acquainted with these and know the similarities and the differences, which I take into account.
The case of Mr Crawford is somewhat different to this case, if for no other reason than the number of offences committed. Nevertheless, the severity of drug dependency had some similarities. The offences, including some such as those Mr Foster has committed, were rather different. Nevertheless, I have carefully considered the case and the principles that it articulates and applies.
The case of Mr Noland is similar in some ways, for example the burglary was committed on a construction site and the issues surrounding that have provided help in addressing the issue, inevitably with differences, but, again, I have considered it for the assistance it provides in this sentencing task.
Of the others, R v Carberry [2020] ACTSC 96 involved the burglary of a residence where a male occupant was present and confronted Ms Carberry and recovered some of the stolen property. Ms Carberry was 41 years old with a disadvantaged childhood and had a significant history of drug dependency. She was sentenced to 18 months imprisonment. It was generally a more serious offence than the burglary committed by Mr Foster.
In Rv McCurley [2020] ACTSC 140, Mr McCurley committed five counts of aggravated burglary in company, amongst a total of 19 offences, including two counts of attempted aggravated burglary and one count of burglary. The aggravated burglaries were committed on commercial premises late at night. They involved premeditation and planning, as well as the use of a vehicle as a battering ram, causing significant damage to the properties on which he had trespassed.
Mr McCurley was on parole at the time of the offending and had a drug dependency and an ‘extremely extensive criminal history.’ He was 31 years old, having experienced trauma and a chaotic upbringing with mental illness. The sentences ranged from two years and nine months imprisonment to two years imprisonment. There was substantial concurrency between the sentences. The total sentence for the 19 offences was six years and three months imprisonment. These were more serious offences than Mr Foster’s and Mr McCurley had poorer subjective circumstances, including that he had ‘guarded’ prospects of rehabilitation (R v McCurley at [50]).
In R v Ware [2016] ACTSC 264, Mr Ware was sentenced for nine counts of theft, four counts of burglary, two counts of dishonestly riding in a motor vehicle without the owner's consent, and nine other offences, committed in underground carparks of residential units, a storage unit in such a carpark, but, also, in a private home. He also entered commercial premises with a co-offender. Mr Ware was heavily dependent on illicit drugs and the offences breached a Good Behaviour Order.
Mr Ware had a difficult childhood and some significant periods of employment. He started using cannabis at age 14 and amphetamines at age 18. He was sentenced to a total sentence of five years imprisonment, fully suspended, with a Good Behaviour Order and with a probation condition. The burglary offences attracted 12 and 18 months imprisonment. They were different offences and the total criminality was much greater than that of Mr Foster.
Consideration
The legislature has set out in s 7 of the Sentencing Act the purposes for which a sentence may be imposed and, when sentencing, a court must have regard to those purposes and ensure that they are respected.
In this case, the nature of the offending by Mr Foster is such that punishment will be reflected in the sentence imposed. Given the prevalence of offences such as aggravated burglary and burglary and their effect on the community, general deterrence is important also. The need for compliance with norms breached by the other offences also points to a need for general deterrence.
Mr Foster has a long history of criminal offending and of committing offences such as those to which he has pleaded guilty. This suggests that specific deterrence is also important.
These purposes, if reflected in a sentence, which, of course, must be just and adequate, will denounce his conduct and go towards making him accountable for his actions. It will also assist in recognising the harm done to the community and, so far as the aggravated burglary and burglary offences are concerned, the harm done to the victims of his crimes.
When considering the steps that Mr Foster has taken towards rehabilitation and the partial success he has made, rehabilitation is a relevant factor and its continuation, if possible, becomes an important factor to be included in the sentencing. That he has failed, in the sense that he has relapsed and committed further offences, is not necessarily a contraindication to this factor. Indeed, as I pointed out in Saga v Reid and Collett [2010] ACTSC 59 at [89], past failures do not necessarily preclude further opportunities for rehabilitation, as long as there is some rational basis for it.
In this case, the causes of Mr Foster's relapses seem to be misfortune, such as the loss of employment and deepening challenges of homelessness and poverty, which also restrict his access to his child. Assistance of the kind available through residential drug rehabilitation, with case management provided by the Treatment Order Team, can be important to overcome such misfortunes and create resilience in Mr Foster to avoid them resulting in future relapse.
I accept, too, that the causes of his offending are related to his personal circumstances and homelessness and poverty, which caused his relapse into drug use, which had been an important part of his life, with daily use of significant stimulants for decades. The proximate cause of the offending is the drug use, which had intoxicated him at the time of the offending.
Mr Foster has, to his credit, displayed, in his conversations with the compilers of the Suitability Assessments, an insight into his offending behaviour, the causes of it and, importantly, his need to address these issues. His desire to re-establish a relationship with his children is likely to be a powerful motivation to reform.
I am not sure that this amounts to remorse, in the sense of recognising the harm done to the victims, but it does meet some of that value in the understanding that he needs to address the causes of his offending so as not to re-offend.
I note that Mr Foster pleaded guilty to all offences. These pleas were entered in the Magistrates Court at an early stage of the proceeding, although not the very earliest. As accepted in the helpful and thoughtful submissions of Ms K Gunther, counsel for Mr Foster, the Crown case was a very strong case given the circumstances of each offence, such as CCTV records of his activities, and being arrested at the scene. While this moderates the discount that a plea does attract, the plea still has a utilitarian value in avoiding the need for the prosecution to be prepared and the enormous work that that entails (Coggan v The Queen [2013] ACTSC 49 at [20]), which is not to be ignored, despite s 35(4) of the Sentencing Act which limits the discount when the case is overwhelming (Monfries v The Queen [2014] ACTSC 46 at [42]).
Here, it is accepted that the fact that the Prosecution Brief of Evidence was not required to be prepared is of particular relevance to the utilitarian value of the plea. In this case, a significant discount is appropriate (R v Philpot [2015] ACTSC 96 at [2]) and I will afford Mr Foster such a discount.
An aggravating factor in the sentence to be imposed, however, is that Mr Foster was, at the time of offending on 31 October 2020, on bail, that is, at conditional liberty. Such liberty is the entrusting of an offender to be in the community and, while denial of bail is not intended to be preventive detention (Dunstan v The Director of Public Prosecutions [1999] FCA 921; 92 FCR 168 at 174; [21]), one of the relevant criteria for granting bail under s 22(1)(b)(i) of the Bail Act is the likelihood of further offences being committed.
Thus, the commission of further offences, as by Mr Foster in this case, is a breach of the Court’s trust extended to him and is to be reflected in a more severe sentence.
I do not have any Victim Impact Statements. Clearly, there is harm done in these cases, though it is not as though the burglaries were of residences where members of the public could suffer mentally. A court can, in general terms, appreciate the harm done, even to corporations and their staff, by the crimes of burglary.
There are multiple offences for which Mr Foster is required to be sentenced. The Courts have required sentencing courts to approach the sentencing of such offences in a particular way, helpfully summarised in O'Brien v The Queen [2015] ACTCA 47 at [26] as follows:
The relevant principles in relation to the fixing of sentences for multiple offences and the consideration of totality are also well settled. They include the following:
(a)When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce v The Queen (1998) 194 CLR 610 at 623-624.
(b)The principle of totality requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: Mill at 63.
(c)A countervailing factor is the need to ensure that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences: R v Wheeler [2000] NSWCCA 34 at [36]. The Court must avoid any suggestion that what is being offered is a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]; R v MAK (2006) 167 A Crim R 159 at [18].
(d)Where offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent: Cahyadi v The Queen (2007) 168 A Crim R 41 at [27].
I will approach the sentencing task in this way. I have carefully considered the length of each sentence to ensure that it is just and adequate, but also to ensure that Mr Foster is not punished twice for any element of culpability. I have then carefully considered whether there should be some concurrency between the sentences because they are part of the same course of conduct or contain common elements. This is relevant to the offences committed on 31 October 2020.
I have then reviewed the length of the total sentence arrived at to ensure that the principles of totality are respected and that the total sentence is both adequate and reflects the criminality, but not more than that, and that it is not excessive, but will leave open the prospect of reform and hope for Mr Foster to take an effective part in the community and realise his aims when released.
This requires a sentence proportionate to the culpability for the crimes and their effect on victims and the community, but also taking into account Mr Foster's subjective circumstances and the value of his reform to the community.
Nevertheless, I am satisfied that no other sentence than a sentence of imprisonment is appropriate and just for the offences that he has committed and the circumstances, both objective and subjective, of their commission.
Sentence
His Honour then spoke directly to the accused:
Mr Foster, please stand.
I convict you of the offence of aggravated burglary on 31 October 2020 and sentence you to two years imprisonment, to commence on 1 March 2021 and end on 28 February 2023. That takes into account Pre-Sentence Custody. Had you pleaded not guilty, I would have sentenced you to two years and six months imprisonment.
I convict you of dishonestly driving a motor vehicle without the owner's consent on 31 October 2020 and sentence you to 12 months imprisonment, to commence on 1 October 2022 and end on 30 September 2023, that is to be cumulative as to seven months on the sentence for aggravated burglary. Had you not pleaded guilty, I would have sentenced you to 15 months imprisonment.
I convict you of driving whilst disqualified as a repeat offender on 31 October 2020 and sentence you to two months imprisonment, to commence on 1 September 2023 and end on 31 October 2023, that is to be cumulative as to one month on the sentence for dishonestly driving a motor vehicle without the owner's consent. Had you not pleaded guilty, I would have sentenced you to three months imprisonment. I note that this conviction will automatically result in a further cumulative suspension of your driver licence for 24 months, from 3 November 2021 to 2 November 2023.
I convict you of possessing a knife in a public place without a reasonable excuse on 31 October 2020 and sentence you to one months imprisonment, to commence on 1 November 2023 and end on 30 November 2023, that is to be wholly cumulative on the sentence for driving whilst disqualified. Had you not pleaded guilty, I would have sentenced you to six weeks imprisonment.
I convict you of burglary on 5 June 2020 and sentence you to 12 months imprisonment, to commence on 1 December 2023 and end on 30 November 2024, that is wholly cumulative on the sentence for possessing a knife in a public place without a reasonable excuse. Had you not pleaded guilty, I would have sentenced you to 15 months imprisonment.
I convict you of failing to appear in accordance with a bail undertaking on 26 October 2020 and sentence you to one month imprisonment, to commence on 1 December 2024 and end on 31 December 2024, that is to be wholly cumulative on the sentence for burglary. Had you not pleaded guilty, I would have sentenced you to six weeks imprisonment.
Mr Foster, you may be seated.
Mr Foster has been sentenced to imprisonment for serious crimes, including aggravated burglary. The total sentence is three years and 10 months imprisonment. I note that he is not currently subject to any other sentencing order within the meaning of s 12A of the Sentencing Act. I am also satisfied that despite having difficulties, Mr Foster is likely to be resident in the ACT for the next two years.
I am further satisfied that the Treatment Order, which he has sought and which has been proposed, has been explained to him and that he has had an opportunity to ask questions about it and have them answered. I am satisfied that he has given informed consent to the making of such an Order.
I am satisfied that Mr Foster is dependent on illicit drugs, especially heroin and amphetamine, and that his dependency substantially contributed to the commission of the current offences.
Accordingly, I am satisfied that he is eligible to be subject to a Treatment Order.
I have carefully read the Suitability Assessments, referred to above (at [4]), which have been carefully and expertly prepared. I have carefully considered the recommendations that they have made that Mr Foster is suitable for a Treatment Order. I have considered the case plan prepared for him and accept that it is appropriate and likely to assist him to achieve the rehabilitation he seeks.
Mr Foster is seeking rehabilitation. He recognises that he must now take steps to reform or the opportunity to do so, or the benefits to him, his family and the community, will be lost.
I have not identified any indicators of unsuitability for a Treatment Order as set out in Table 46K of the Sentencing Act.
Accordingly, I am satisfied that Mr Foster is suitable for a Treatment Order and I will make one.
Finally, I note that, although I have commenced the sentence of imprisonment imposed on him prior to today and thus have to suspend it from today for the balance of the term of the Treatment Order, this means that part of the sentence has been served in custody, but I am satisfied, for the reasons set out in R v Crawford (No 1) at [91]-[111], that this does not preclude me making a Treatment Order.
His Honour then again spoke directly to the accused:
Mr Foster, please stand.
Mr Foster, I make a Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) for two years, from today to 28 March 2023, for the offence of aggravated burglary, that being the primary offence.
I extend that Order to the offences of dishonestly driving a motor vehicle without the owner's consent, driving whilst disqualified, possessing a knife in a public place without a reasonable excuse, and failing to appear in accordance with a bail undertaking, all being associated offences.
The convictions and sentences for the primary offence and the associated offences are hereby incorporated into the Drug and Alcohol Treatment Order in the custodial part of that Order.
The total sentence of 3 years and 10 months is suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT), from today, 29 March 2021, until 31 December 2024.
I require you to sign an undertaking to comply with the offender's good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT), from 29 March 2023 until 31 December 2024, with a probation condition to accept supervision by the Commissioner of ACT Corrective Services or his delegate until 31 December 2024, or such lesser period as the person supervising you considers appropriate, and obey all reasonable directions of the person supervising you.
For the treatment and supervision of the Drug and Alcohol Treatment Order:
(a) I require you to comply with the core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) for the term of the Order;
(b) I require you to complete the residential drug rehabilitation program provided by Canberra Recovery Services at Fyshwick, and you are directed to travel directly from the Court to Canberra Recovery Services to arrive by 1:00pm today, 29 March 2021, and admit yourself to that program, remain in the program until it is completed, and obey all the rules of the facility and the program and any directions of the person in charge of the facility;
(c) I direct you not to leave Canberra Recovery Services before you complete the program without the approval of the Court or in accordance with the rules of the program, and if you are discharged or leave the facility or the program, present yourself to ACT Corrective Services by 4:00pm on the next business day after you are discharged or leave, with a view to having the Drug and Alcohol Treatment Order reviewed;
(d) I direct you to undergo any program of treatment or counselling and urinalysis, case management or other program, as may be required by any member of the Treatment Order Team or by order of the Court from time to time; and
(e) I direct you to comply with any direction of the Court from time to time about attendance in Court, in person or by electronic means.
I direct that you attend Court on 9 April 2021 at 12:30pm, by electronic means.
Mr Foster, you have been around the Courts for a long time, so you probably understand some of what I have said, but a lot of it, I expect, went right over your head. I am obliged to explain to you what I have done. I have assessed the seriousness of the offences that you have committed and said that, in totality, they deserve three years and 10 months imprisonment, so I have imposed that, but I do not require you to serve any more time than you already have in custody, because I made a Treatment Order, and that requires you to attend to your rehabilitation that you say you are committed to and that I have accepted that you are.
There is a lot riding on that. I mean, you are at a stage now when you have got to grow out of these things and if you want to have a life that you can be proud of, and you can, notwithstanding your background, have a family and contact with your family, then you need to put some effort into the rehabilitation. If you do that, this Court and the expert Treatment Order Team that is available now to you, and also the work at Canberra Recovery Services, will help you to do that, but you have got to do the majority of it because it is you that needs to rehabilitate.
The Court will help you and will encourage you, but it will also sanction you if you fail, and ultimately, and I hope it does not happen, although sometimes it does, the Court will have then to impose the whole of that sentence or the balance of that sentence that I have now suspended.
You will see me pretty frequently, at least for the first few months, mostly by audio-visual link, which is not always that flash, but we seem to make a connection, and that is an opportunity for you to tell me how you are going, for me to raise any issues that need to be addressed and for you to raise issues that need to be addressed.
If you are having a tough time, you need to tell me about it. If it is something that you do not feel you can raise in open Court, because that is where we sit, in open Court, then you can, through your counsel or your case manager, ask that we hear it in private. That will mean there are still lawyers and members of the Treatment Order Team there, but there will not, for instance, be other participants in the facility, there will not be staff members of the facility there, and so you can raise your concerns in a confidential way and we can try and address them.
What is worst is if you throw up your hands and say, ‘I cannot cope with this anymore,’ and take off. Sometimes that happens. People are human, emotions can be a challenge. If you do, come back. The way to come back is to go to Corrective Services, report to them and they will arrange for you to come back to the Court. If you do that there is a possibility that alternative arrangements may be able to be made, or that some resolution of the difficulty may be able to be made. That is problematic and it will not always happen, and even then, you might have to face the cancellation of the Treatment Order, but I will take into account the circumstances and the sentence imposed will also take that into account. It may be moderated and may make other arrangements of some kind.
One of the really important things that you need to do in your rehabilitation is to be honest. That is fundamental to rehabilitation. Be honest with yourself and be honest with those who assist you. That may be hard. It is not always easy to do that, but if you do that, then you will find that the people who are available to you will be able to help you, will assist you and help you on what will be a hard and challenging road.
So, you have got to have some guts to do it and if you have got the commitment to it - people have done it, have succeeded - I am satisfied that you are capable of succeeding if you put your mind to it. Sometimes problems not of your own making arise and, as I have said, there are ways in which to address that.
You have been well represented to date, but, unfortunately, your counsel will no longer be representing you. Legal Aid will represent you through the Treatment Order, but you can always talk to your Legal Aid lawyer and get some assistance.
I hope that you will take this opportunity. It will be good for you, it will be good for your family, it will be good for the community. I wish you luck and I assure you of assistance from the Court and support if you really put your mind to it, put effort into it and take the opportunity that is now being given to you. You may be seated
| I certify that the preceding one-hundred and fifty-five [155] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge Associate: A Spencer Date: 23 November 2021 |
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