R v Goolagong
[2020] ACTSC 67
•28 January 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Goolagong |
Citation: | [2020] ACTSC 67 |
Hearing Date: | 28 January 2020 |
DecisionDate: | 28 January 2020 |
Before: | Walker AJ |
Decision: | The offender is not eligible for a Drug and Alcohol Treatment Order. The offender is to serve 12 months in prison, taken to have commenced on 3 July 2019 and to end on 2 August 2019. The offender is to pay a fine of $800. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – driving motor vehicle without consent – unlawful possession of a stolen motor vehicle – drive unlicensed – drug and alcohol treatment order not granted |
Legislation Cited: | Crimes (Sentencing) Act2005 (ACT) ss 7, 10, 33 Criminal Code 2002 (ACT) ss 318(2), 324(1) Road Transport (Driver Licencing) Act 1999 (ACT) s 31(2) |
Parties: | The Queen (Crown) Jermaine Goolagong (Offender) |
Representation: | Counsel H Roberts (Crown) K Musgrove (Offender) |
| Solicitors ACT Director of Public Prosecution (Crown) McKenna Taylor (Offender) | |
File Number(s): | SCC 7 of 2019 SCC 326 of 2019 |
Walker AJ (ex tempore)
Summary of charges
Jermaine Goolagong is charged with two counts of driving a motor vehicle without consent (CC2019/12639 and CC2019/12642), contrary to s 318(2) of the Criminal Code 2002 (ACT) (the Code), which, on conviction, carries up to five years imprisonment or a fine of up to $80,000 or a combination of both, and one count of unlawful possession of a stolen motor vehicle (CC2019/12641), contrary to s 324(1) of the Code, which carries on conviction up to six months imprisonment, a fine of up to $8,000 or a combination of both.
He is also to be sentenced on a related matter which was transferred from the Magistrates Court for this reason of an offence of driving unlicensed (CC2020/1095), contrary to section 31(2) of the Road Transport (Driver Licencing) Act 1999 (ACT). This offence does not attract a sentence of imprisonment, but rather a maximum fine of up to $3,200.
Mr Goolagong was arrested in respect to these charges on 3 July 2019 and has been remanded in custody since then with the exception of 2 days when he was released on bail; one on compassionate grounds and one to address an outstanding New South Wales matter. As at 28 January 2020, that results in a total of six months and 26 days pre-conviction custody which is to be taken into account on sentence.
Mr Goolagong pleaded guilty on 3 December 2019 in the Magistrates Court and was committed for sentence on the driving without consent charges. The summary matters which, at that time, included a drive whilst disqualified, since found to have been incorrectly laid, were transferred for sentence concurrently. The plea of guilty came after the matters had been listed for hearing. The drive whilst disqualified has been discontinued.
Evidence
For the purpose of sentencing, I have had the following material available to me: an amended statement of facts; Mr Goolagong's criminal history, both in the ACT and the New South Wales including the outcome of sentencing proceedings at Queanbeyan Local Court on 16 January 2020; drug and alcohol treatment order suitability assessment reports prepared by Ms Leah Robinson, social worker at the Alcohol and Drug Service dated 10 January 2020 and 17 January 2020, the latter in respect to placement at Oolong House; a report from Ms Alex Durrant, social worker at the Forensic Mental Health Service dated 9 January 2020 and a report from Mr Andrew Cuthel of ACT Corrective Services, dated 10 January 2020.
Factual Circumstances
Ms Rachel Jones' BMW was stolen from her garage on 26 June 2019. She had spare keys in it. On 1 July 2019, Mr Goolagong was caught on closed circuit television driving that car in to a Caltex garage in Braddon with a passenger, Ms Alicia Scott. That is the first count of driving a motor vehicle without consent. Ms Scott nominated Mr Goolagong subsequently as the driver of the motor vehicle, and his DNA was found in the car, which strongly implicated him in being present in it.
In the early hours of 2 July 2019, police saw the BMW, with its engine still warm, the wrong number plates attached to it, and a cracked windscreen. Mr Goolagong was arrested in a house nearby with keys to Ms Jones' BMW in his possession. He was the driver on the second occasion also. That is the second count.
When he was arrested, Mr Goolagong had keys to a Holden Astra motor vehicle which belonged to Ms Mary Spice. That car had been stolen from her home on 30 June 2019. Possession of keys to the two motor vehicles constitute the unlawful possession charge. Mr Goolagong was unlicensed to drive at these times when he drove and has never held a valid driver's license.
The gravamen of the drive without consent charge is the significant inconvenience that it causes to people whose vehicles are taken and the market it provides for those who steal the vehicles. That also applies to unlawful possession. If people are not prepared to accept and possess items that they reasonably suspect to be stolen, there will be less purpose for those who take them in the first place.
There are no particularly aggravating or mitigating aspects to Mr Goolagong's offending. His illegal use of Ms Jones' BMW is sadly a run of the mill example of an all too common offence. I assess those offences as being lower than the mid‑range of offences of their type.
Subjective circumstances
Mr Goolagong is a 26 year old father of three young children, aged three, four and six. He has been in a relationship with his de facto partner since he was 17 years old. He is a man who is Indigenous and identifies as belonging to the Wiradjuri clan from the Griffith area of New South Wales. He was raised by his aunt, whom he knows as “Mum”. He has a large birth family but has little contact with his birth parents or most of his siblings. His children are currently in Mum's care. They are under threat of long-term orders from Child and Youth Protection Services.
Mr Goolagong's partner and Mum are very supportive of him. He has limited formal education, being to either grade six or grade eight, it is not clear from the various histories which have been given; and he has a limited work history, although he has held some employment in the past. He is keen to do bricklaying and to one day build his own home.
Mr Goolagong has engaged in what is called polysubstance abuse, so he has used many different drugs, and is now diagnosed as having a severe substance use disorder. He started drinking alcohol when he was 10 years old, cannabis when he was 12 and has used methamphetamine since the age of 17. He has also tried a variety of other drugs. Recently, including at the time of these offences, his substance use has been primarily cannabis, alcohol and methamphetamine daily and also MDMA on a fairly regular basis.
Mr Goolagong's use of these substances was instigated by engagement with older youths, mainly cousins and friends at a time when he could not reasonably be considered as making a rational choice. His problematic use of substances no doubt has its origins in both social and educational disadvantage. This warrants some lenience in how these matters are to be addressed.
Mr Goolagong engaged in multiple drug use in custody, but recently managed to get clean in order to access residential rehabilitation, even abstaining from Suboxone as prescribed to him. He has not undergone residential rehabilitation before, but he applied for access to Oolong House at Nowra, which is likely to be a positive cultural experience for him. The fact that he was able to make that application himself and to pursue it gives the court some cause for cautious optimism as to his prospects for rehabilitation.
In terms of his mental health, Mr Goolagong has not been diagnosed as suffering a major mental illness but does experience some symptoms of anxiety and depression which have expressed themselves in self-harm in the past. He has suffered significant person loss, and experiences unresolved grief. He has previously been assessed as suffering a borderline intellectual disability, but most recently Dr Kasinathan, a psychiatrist, has expressed the opinion that Mr Goolagong has improved in his functional capacity, which also gives some grounds for optimism for his rehabilitation.
He has a very significant criminal history for a young man, much of that being similar to the type of offending which is now before the court. He has 17 convictions for riding or driving motor vehicles without consent in the ACT, and one for such an offence in New South Wales. Most of those offences were also associated with other driving offences. He has a significant record or history of dishonesty, but I note that offences of violence do not feature significantly in Mr Goolagong's history. I also note that it is in excess of two years since Mr Goolagong has offended, prior to these current matters, in a similar way. This is a significant period of time in his still young life.
During the sentencing proceedings, arrangements were made by Mr Goolagong's lawyers to address an outstanding New South Wales warrant with the view to allowing Mr Goolagong to potentially access New South Wales residential rehabilitation without risk of being arrested when he went to New South Wales. He was granted day bail for this to be effected. The offence was an historical break, enter and steal, committed when he was 18 years old. He had already pleaded guilty, but had not attended the sentencing proceedings, due to being in custody elsewhere. Thanks to the rapid work by his representatives, a community-based supervision order was possible and was made by the New South Wales Local Court, and he is currently subject to that order.
Mr Goolagong has a history of poor compliance with previous sentence orders and is assessed by ACT Corrective Services at being at high risk of further offending. He has shown little victim empathy when spoken to by ACT Corrections. However, he has through this process, it seems to me, shown an ability to comply with some orders of the court, and properly re‑attended custody as was required of him when released on bail on those two occasions. Due to the extensive record of criminal offending of this type, there is less scope for lenience than might be the case otherwise; however, that is to be balanced against the other factors that have been identified.
Sentencing considerations
I take into account the provisions of ss 7, 10, and 33 of the Crimes (Sentencing) Act2005 (ACT) in particular. Any sentence imposed today must address general and specific deterrence, must make Mr Goolagong accountable for his actions and promote, insofar as possible, his rehabilitation.
Noting his pleas of guilty, he is to be given the benefit of a discount of 20 per cent by way of reduction of sentence.
He is to be given credit for time served on remand.
I am to take into account the principle of totality, noting the relatively short period of time over which the offending occurred, and the overlap in criminal conduct, especially that the drive without consent charges both relate to the same vehicle.
A sentence of imprisonment - albeit a sentence of last resort - is, as has been conceded by those representing Mr Goolagong, the only appropriate sentence to be imposed today. Although initially found eligible, and from a health perspective, suitable for a drug and alcohol treatment order, in light of the sentence which in my view is properly applied, I am not satisfied that such an order is available to Mr Goolagong. Because he has served already such a lengthy period in custody, the remaining time is insufficient for a drug and alcohol order to be imposed. I am, however, satisfied that he should be given the benefit of those causes for optimism by the sentence, which is to be imposed today being suspended, at least in part.
Sentence
On charge 12639/2019, I record a conviction, and impose a period of 12 months’ imprisonment, reduced from 15 months for the plea of guilty. On charge 12642/2019, I record a conviction, and impose a period of 12 months’ imprisonment, reduced from 15 months for the plea of guilty, to be served concurrently with the 12 months imposed on the first count.
In respect to the charge of unlawful possession, I impose a period of two months’ imprisonment, reduced from three months for the plea of guilty, and that is to be served consecutively on the existing sentence. In respect to the charge of driving unlicensed, I impose a fine of $800, reduced from the fine of $1,000 which I otherwise would have imposed, and allow 12 months to pay.
The sentence of imprisonment is taken to have commenced on 3 July 2019 and will end on 2 August 2020. Having served six months and 26 days, the remaining period of imprisonment is suspended from today, upon the offender entering into a good behaviour order for a period of 12 months from today.
In addition to compliance with the core conditions, the offender is to travel upon his release to Oolong House, to arrive there no later than 4.00 pm on 29 January 2020. Whilst at that facility, he is to abide by the rules and requirements of the rehabilitation program. If exited from the facility, either voluntarily or involuntarily, Mr Goolagong is to return to the ACT and to present to ACT Corrections by 4.00 pm on next business day after his discharge from the facility.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Walker Associate: Date: 1 April 2020 |
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