R v Graham (No 2)
[2017] ACTSC 378
•1 December 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Graham (No 2) |
Citation: | [2017] ACTSC 378 |
Hearing Date: | 1 December 2017 |
Decision Date: | 1 December 2017 |
Before: | Mossop J |
Decision: | See [24] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – hindering a public official – common assault – failure to wear a helmet – unlicensed rider – failure to stop vehicle when requested by police – aggravated dangerous driving – found guilty at trial – criminal history associated with illicit drug use – evidence of significant change in the offender’s behaviour and outlook on life – appropriate to give the offender the opportunity to demonstrate that he has rehabilitated himself – no sentence other than a custodial sentence appropriate – sentences suspended upon the offender entering into a Good Behaviour Order |
Legislation Cited: | Australian Road Rules, r 271A Crimes Act 1900 (ACT), s 26 Criminal Code 2002 (ACT), s 361(1) Crimes (Sentence Administration) Act 2005 (ACT), s 320H Road Transport (General) Act 1999 (ACT), s 63(2) Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 7(1) Road Transport (Safety and Traffic Management) Regulation 2000 (ACT), ss 8, 109(2) |
Cases Cited: | R v Graham [2017] ACTSC 2017 |
Parties: | The Queen (Crown) Troy Graham (Offender) |
Representation: | Counsel S Naidu (Crown) P Burgoyne-Scutts (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 294 of 2016 |
SCC 295 of 2016
MOSSOP J:
Introduction
After a trial by judge alone Troy Graham was found guilty on 15 September 2017 of eight counts of traffic-related and other offences stemming from a course of conduct that took place on 18 and 19 December 2015. The circumstances of that offending conduct are recounted in the reasons I gave for my verdict (‘principal judgment’) and I will not repeat them here (see R v Graham [2017] ACTSC 267).
The offences and their maximum penalties are summarised as follows (I make reference to the charge number used in the principal judgment and the references in that judgment to the paragraphs where the conduct is described in more detail.):
(a) CC2016/10677, Charge 2, involved riding a motorcycle towards Senior Constable Yates in order to avoid apprehension: see principal judgment at [84]–[85]. This amounted to hindering a public official contrary to the Criminal Code 2002 (ACT) s 361(1). The maximum penalty for this offence is a fine of
$30,000 or imprisonment for two years or both.
(b) CC2016/10615, Charge 3, involved striking Constable Yates with the motorcycle: see principal judgment at [86]–[87]. This amounted to a common assault contrary to s 26 of the Crimes Act 1900 (ACT), the maximum penalty for which is two years’ imprisonment.
(c) CC2016/9314, Charge 4, was a failure to wear a helmet when riding on Currong Street North: see principal judgment at [88]–[89]. That was a contravention of the Australian Road Rules r 271A, an offence provision. The maximum penalty for that is a fine of $3,000.
(d) CC2016/12964, Charge 8, was of being an unlicensed rider on Currong Street North: see principal judgment [100]–[101]. It was a contravention of s 31(1) of the Road Transport (Driver Licensing) Act 1999 (ACT) and carried a maximum penalty of a fine of $3,000.
(e) CC2016/9321, Charge 9, involved a failure to stop when directed by Constable Yates in the car park at Allawah Court: see principal judgment at [102]. That was a failure to stop when requested by police, a contravention of s 109(2) of the Road Transport (Safety and Traffic Management) Regulation which carries maximum penalty of a fine of $3,000.
(f) CC2016/9315, Charge 11, was a charge of failing to wear a helmet and riding out of Allawah Court and onto Currong Street: see principal judgment at [108]. That was a contravention of the Australian Road Rules as described above. It carries a maximum penalty of a fine of $3,000.
(g) CC2016/12965, Charge 13, was being an unlicensed rider when riding from Allawah Court onto Currong Street: see principal judgment at [110]. That was a contravention of s 31(1) of the Road Transport (Driver Licensing) Act and carries a maximum penalty of a fine of $3,000.
(h) CC2016/9319, Charge 14, involved dangerous driving when riding past Senior Constable Yates through Allawah Court and onto Currong Street: see principal judgment at [111]–[119]. This was aggravated dangerous driving contrary to the Road Transport (Safety and Traffic Management) Act (1999) (ACT) the maximum penalty for which is two years’ imprisonment or a fine of $30,000. It involved an automatic period of disqualification of 12 months or longer if the court orders.
Charge 2 is a charge which is in the mid-range of objective seriousness for this kind of offence. It was aggravated by the fact that the offender was attempting to escape and a police officer was in full uniform and that the means of hindering Senior Constable Yates carried with it a significant risk of harm.
Charge 3 is in the mid-range of objective seriousness for this kind of offence. It is aggravated by the fact that it was an assault on a police officer. However it was reckless rather than intentional and did not cause any significant or long-lasting harm to the officer.
Charges 4 and 11 are run-of-the-mill examples of this offence. I treat them as being in the mid-range of objective seriousness. So too are Charges 8 and 13.
Charge 9 is in the mid-to-upper range of objective seriousness for this offence. The failure to stop occurred in circumstances where the defendant was attempting to escape from police who were in full uniform and had given a clear direction that he should stop.
Charge 14 is in the mid-range of objective seriousness for this offence. It involved not only dangerous driving near a pedestrian police officer but also dangerous driving on the wrong side of a public road which had the potential to cause serious harm to members of the public.
Subjective circumstances
The personal circumstances of the offender are disclosed in a Pre-Sentence Report, a CADAS Report prepared for an earlier court appearance and the exhibits which were tendered.
The offender is an Aboriginal man whose parents separated when he was a child. He experience a positive childhood spending time with both parents. He lived with his mother and grandparents and his father would travel from Queensland to see him. He started to experience behavioural issues when he was 13 years old. From the age of 14 he left home to live with another family. He denied experiencing any childhood trauma, abuse or neglect. He completed Year 9 at secondary school. He is a qualified small-engine mechanic and had been an apprentice diesel mechanic for a short period. He has worked as a labourer in bricklaying, horticulture and landscaping. He is presently employed at a business in Mitchell which sells and services lawnmowers. He there performs in the position of a sales assistant. The office manager of that business has provided a very positive reference in relation to him including that he is required to handle cash on behalf of the business and has proven himself to be trustworthy. He has worked in that business since the end of August 2017. He also worked there at some point prior to entering into a residential rehabilitation program earlier in 2017.
The evidence before the Court is consistent with there having been a significant change in the offender’s behaviour and outlook on life. The CADAS Report from October 2016 indicates a significant and long-standing history of illicit drug use. It records significant use of, in particular, cannabis and amphetamines as well as tobacco. The Pre-Sentence Report indicates that in the two months prior to being remanded in custody in September 2016 he was using $90 worth of cannabis per day and up to $500 worth of methamphetamine per day. The CADAS Report records that as at May and October 2015 he had been offered referrals to alcohol and drug treatment services and on both occasions declined. However, by 2016 he was motivated to engage in treatment. [Redacted for legal reasons]. In May 2017 he participated in a three-month drug rehabilitation program. That involved two months of residential rehabilitation and a further month of daily attendance. That program appears, at the moment, to have been successful and there is no evidence of ongoing illicit drug use since that time. He is presently in a positive and stable relationship and has been for a period of 10 months. He is assessed by the author of the Pre-Sentence Report as having a low risk of illicit substance use. The author records his risk of reoffending has decreased from “medium/high risk” to “medium risk” as a result of improvements in his lifestyle and attitude. The Pre-Sentence Report does not, in the light of its positive assessment, recommend supervision and notes that the offender has satisfactorily fulfilled the obligations of his current Good Behaviour Order.
The letter from his father identifies the fact that since his release from prison after serving sentences for other offences, he has avoided association with people who he recognised had been a bad influence upon him and has transformed his life over the last 11 months. The letter reflects optimism that the change that the offender has made will be a long-term one and that he will be able to continue to contribute to the community in a positive manner in the future.
Criminal history
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Consideration
The offending conduct is serious conduct which placed a police officer at risk of significant injury as well as generating risks to members of the public. That conduct was directed to avoiding apprehension by the police. It occurred during a period when the offender was a significant long-term user of illicit drugs. The offender is young and has a significant criminal history. However, the unusual feature of this case is that there is good evidence that the efforts of the offender at rehabilitation have, to date, been successful. While it is too early to say with confidence that the offender has permanently departed from a lifestyle involving ongoing criminal conduct, there are good signs that this may be the case. Thus while the offender must be held accountable for and punished for his actions and must be deterred from future
offending conduct, the long-term welfare of the community will be advanced if the sentence can be structured so as to provide maximum incentives for long-term rehabilitation.
In my view, having regard to the objective gravity of the offending conduct, there is no sentence other than a custodial one which is appropriate in relation to Charges 2, 3 and 14. In relation to those charges however, the first two are part of a single incident and all three are part of a course of conduct which occurred over a relatively short period. Therefore the sentences imposed should be largely concurrent. I have taken into account periods spent in custody but note that all but four days of the period of three months has now been attributed to sentences for other offences. On Charge 2 I consider that a period of imprisonment of four months is appropriate. On Charge 3 I consider that a period of imprisonment of three months, wholly concurrent with that on Charge 2, is appropriate. On Charge 14 a period of imprisonment of two months cumulative as to one month upon the sentence on Charge 2 is appropriate. This gives a total period of imprisonment of five months.
However, having regard to the very positive indications of the progress that has been made by the offender, it is appropriate to give him the opportunity to demonstrate that he has rehabilitated himself or to continue that rehabilitation as the case may be. It would, in my view, be counter-productive to require him at this stage to serve an immediate custodial sentence. I will therefore suspend each of these sentences of imprisonment upon the entry by the offender into an undertaking to be of good behaviour for a period of two years.
So far as the period of two years is concerned, that period rather than a shorter period is appropriate because while the signs of rehabilitation are positive, given that the offender has only recently come to grips with his illicit-drug use, there is at least the potential for relapse for a variety of reasons. It is therefore appropriate to have a significant period during which the suspended sentence will provide a motivation for the continuation upon the positive course which he has now embarked upon.
The reason that I will place a probation condition upon the Good Behaviour Orders is that notwithstanding that the Pre-Sentence Report indicates that upon the already existing Good Behaviour Orders the Director-General has decided that it is no longer necessary for there to be a probation condition, I consider that, having regard to the history of long-term abuse of illicit drugs and the short period during which the offender has been free of illicit-drug use, it is appropriate that there be, at least in the first instance, the capacity for supervision on probation including the potential for drug testing. Obviously, whether or not to terminate early the requirement for supervision will be a matter for the Director-General depending on the information that is available at the time.
In relation to the other offences, they can, in my view, be appropriately dealt with by way of fine. In each case other than Charge 9 I will impose a fine of $400 and allow a period of 12 months in which to pay that amount. In relation to Charge 9 I will impose a fine of $600. The total of those fines is $2200.
Section 63(2) of the Road Transport (General) Act 1999 (ACT) gives rise to an automatic period of disqualification from holding a drivers licence of 12 months for a person convicted of aggravated dangerous driving. I will note that period of
disqualification. I will not make any order increasing that period. There appears to be no utility in such a course having regard to the other penalties imposed today and the fact that, in my view, it would be counter-productive to increase the period of disqualification beyond the automatic statutory period in circumstances where the capacity to obtain a driver’s licence may be significant for maintenance of stable employment and the ordinary conduct of a law-abiding life.
Orders
The orders of the Court are:
1.On charge CC2016/10677 (hindering a public official) the offender is sentenced to imprisonment for a period of four months which is to be suspended upon entering into an undertaking to be of good behaviour for a period of two years subject to the following conditions:
a. a probation condition that he be subject to supervision of the Director- General and comply with all reasonable directions of the Director- General for a period of 12 months or such lesser period as deemed appropriate by the Director-General;
b. that he is to attend such educational, vocational, psychological, psychiatric or other assessments, programs or counselling as directed;
c. that he is to supply samples of breath, blood, hair, saliva or urine for drug testing if required by the Director General; and
d. that he is to report to the ACT Community Corrections office at Level 1, 249 London Circuit, by 4:00 pm on Monday 4 December 2017.
2.On charge CC2016/10615 (common assault) the offender is sentenced to imprisonment for a period of three months concurrent with the sentence upon CC2016/10677 which is to be suspended upon entering into an undertaking to be of good behaviour for a period of two years subject to the same conditions as the Good Behaviour Order on CC2016/10677.
3.On charge CC2016/9314 (failure to wear a helmet) the offender is convicted and fined $400 and allowed 12 months to pay that fine.
4.On charge CC2016/12964 (unlicensed rider) the offender is convicted and fined $400 and allowed 12 months to pay that fine.
5.On charge CC2016/9321 (failure to stop vehicle when requested by police) the offender is convicted and fined $600 and allowed 12 months to pay that fine.
6.On charge CC2016/9315 (failure to wear a helmet) the offender is convicted and fined $400 and allowed 12 months to pay that fine.
7.On charge CC2016/12965 (unlicensed rider) the offender is convicted and fined $400 and allowed 12 months to pay that fine.
8.On charge CC2016/9319 (aggravated dangerous driving) the offender is convicted and sentenced to imprisonment for a period of two months cumulative as to one month upon the other sentences of imprisonment but
suspended upon the offender entering into a Good Behaviour Order for a period of two years upon the same conditions as the Good Behaviour Order on charge CC2016/10677.
9.I note the automatic disqualification period from holding a driver’s licence of 12 months (for CC2016/9319).
I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.
Associate:
Date: 1 February 2018
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