R v Gray (No 2)
[2021] ACTSC 161
•19 February 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Gray (No 2) |
Citation: | [2021] ACTSC 161 |
Hearing Date(s): | 19 February 2021 |
DecisionDate: | 19 February 2021 |
Before: | Refshauge AJ |
Decision: | 1. The Drug and Alcohol Treatment Order made on 7 February 2020 be amended under r 6909 of the Court Procedure Rules 2006 (ACT) to show that the sentence of 18 months imprisonment imposed on Luke Gray commences on 8 October 2019 and ends on 7 April 2021. |
Catchwords: | CRIMINAL LAW – Judgment – amendment – Drug and Alcohol Treatment Order |
Legislation Cited: | Court Procedure Rules 2006 (ACT) Crimes (Child Sex Offenders) Act 2005 (ACT) s 54(1) Public Order (Protection of Persons and Property) Act 1971 (ACT) s 11(1) |
Cases Cited: | Brennand and Naughton v Hartung and Best Practice Education Group Ltd t/as Blue Gum Community School (No 3) [2015] ACTSC 149 R v Gorman [2009] ACTSC 7 R v Gray [2020] ACTSC 40 |
Parties: | The Queen ( Crown) Luke Gray ( Offender) |
Representation: | Counsel D Perks ( Crown) C Brown; C Duffy ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) | |
File Number(s): | SCC 331 of 2019 SCC 332 of 2019 |
Refshauge AJ
On 7 February 2020, Walker AJ convicted Luke Gray of one count of going equipped for theft, contrary to s 315 of the Criminal Code 2002 (ACT), two counts of failing to report a change of details as a registerable offender, contrary to s 54(1) of the Crimes (Child Sex Offenders) Act 2005 (ACT), and one count of trespass, contrary to s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (ACT). By virtue of those convictions, Mr Gray was also in breach of two Good Behaviour Orders, imposed in the Magistrates Court, for failing to stop at the direction of a police officer and possessing a drug of dependence.
Her Honour then sentenced Mr Gray for those matters in the Drug and Alcohol Sentencing List. Her Honour took no further action on the breaches of the Good Behaviour Orders and, on the trespass charge, her Honour imposed a financial penalty. On the other charges of going equipped for theft and failing to report a change of details as a registrable offender, her Honour sentenced Mr Gray to a total of 18 months imprisonment, comprising nine months and 12 months respectively on the failing to report charges, to be served concurrently, and a consecutive sentence of six months for the charge of going equipped for theft.
Her Honour then made a Drug and Alcohol Treatment Order (a Treatment Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) for a period of 12 months from the date of sentence, 7 February 2020. Her Honour commenced the sentence on 8 October 2019 to take pre-sentence custody into account: see R v Gray [2020] ACTSC 40 at [29].
Under s 80W of the Sentencing Act, the sentence of imprisonment must be wholly suspended, as was done by her Honour. Thus, there was a period of time remaining after the end of the Treatment Order’s treatment and supervision part until the balance of the custodial period was finally served. In her Honour's Order, her Honour said that the total 18 months sentence extended from 8 October 2019 to 7 March 2021. That is incorrect. In fact, it extends until 7 April 2021.
Mr Gray has now completed his Treatment Order and must now enter into a Good Behaviour Order for the balance of the sentence. An inspection of the Orders that were made on 7 February 2020 has brought to light the fact that the sentence end date in the Court records is incorrectly recorded as 7 March 2021 and should be 7 April 2021 instead.
I am satisfied that 7 April 2021 is the correct date and that, given the construction of the sentence and the clear indication by her Honour that it was to be an 18 month sentence, that was her Honour's intention, notwithstanding that the judgment says otherwise
Her Honour's commission as an Acting Judge of this Court has now expired and her Honour has returned to her role as the Chief Magistrate of the ACT Magistrates Court.
I am satisfied that I am able to amend the Order, notwithstanding that I did not impose it: see Brennand and Naughton v Hartung and Best Practice Education Group Ltd t/as Blue Gum Community School (No 3) [2015] ACTSC 149 at [53]-[55].
I am satisfied that the Order is able to be amended, notwithstanding that the Order has been entered into the Court records: see R v Gorman [2009] ACTSC 7 at [12].
Accordingly, I amend the Order of the Court under r 6909 of the Court Procedure Rules 2006 (ACT), so that it shows that the sentence of 18 months imprisonment imposed on Mr Gray commences on 8 October 2019 and ends on 7 April 2021.
| I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Refshauge. Associate: A Spencer Date: 20 August 2021 |
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