R v Guy
[2022] ACTSC 373
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Guy |
Citation: | [2022] ACTSC 373 |
Hearing Dates: | 21 January 2022, 23 March 2022 |
Decision Date: | 25 March 2022 |
Before: | Refshauge AJ |
Decision: | 1. Dillon Matthew Guy be convicted of aggravated dangerous driving as a repeat offender and be sentenced to 14 months imprisonment to commence on 22 March 2022 and end on 21 May 2023. 2. Dillon Matthew Guy be convicted of unauthorised possession of a firearm and be sentenced to 4 months imprisonment to commence on 22 May 2023 and end on 21 September 2023. 3. Dillon Matthew Guy be convicted of unlawfully possessing stolen property and be sentenced to 4 months imprisonment to commence on 22 July 2023 and end on 21 November 2023. 4. Dillon Matthew Guy be convicted of possessing a drug of dependence and be sentenced to 2 months imprisonment to commence on 22 November 2023 and end on 21 January 2024. 5. Dillon Matthew Guy be convicted of driving whilst disqualified as a repeat offender and be sentenced to 4 months imprisonment to commence on 22 November 2023 and end on 21 March 2024. 6. A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Dillon Matthew Guy commencing today, 25 March 2022, and ending on 21 March 2024 in respect of the primary offence of aggravated dangerous driving as a repeat offender of which he has been convicted and for which he has been sentenced to 14 months imprisonment. 7. That Order be extended to the offences of unauthorised possession of a firearm, unlawfully possessing stolen property, possessing a drug of dependence and driving whilst disqualified as a repeat offender, of which Dillon Matthew Guy has been convicted and for which he has been sentenced, and which are associated offences of the primary offence. 8. It be noted that convictions for the primary offence and the associated offences have been recorded and that sentences have been imposed for each of them, which convictions and sentences be hereby incorporated into the Drug and Alcohol Treatment Order in the Custodial Part of the Order. 9. The custodial part of the Drug and Alcohol Treatment Order for the primary and associated offences be hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 25 March 2022, until 21 March 2024. 10. For the treatment and supervision part of the Drug and Alcohol Treatment Order: a. The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed; b. Dillon Matthew Guy undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where he resides, with whom he associates and his attendance from time to time; and c. Dillon Matthew Guy comply with any directions of the Court from time to time about attendance at Court in person or by electronic means. 11. Dillon Matthew Guy be directed to appear in person in Court on Friday 1 April 2022 at 11:30 am. 12. Dillon Matthew Guy be directed to attend the Court Registry before he leaves the Court precincts to sign a sealed copy of this Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this Order is in force. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated Dangerous Driving – Repeat Offender – Unauthorised Possession of a Firearm – Unlawful Possession of Stolen Property – Possession of a Drug of Dependence – Driving Whilst Disqualified – Subjective Circumstances – Drug Dependence – Sentence of Imprisonment – Drug and Alcohol Treatment Order Application – Application Successful |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 12A, 33, 35, 46J, 46K, 63, 80W, 80Y Criminal Code 2002 (ACT) s 324 Drugs of Dependence Act 1989 (ACT) ss 169, 171AA Firearms Act 1996 (ACT) ss 42, 43 Magistrates Court Act 1930 (ACT) s 90B Road Transport (Driver Licensing) Act 1999 (ACT) s 32 Road Transport (General) Act 1999 (ACT) ss 61AA, 69 Road Transport (Safety and Traffic Management) Act 1999 (ACT) ss 7, 7A Supreme Court Act 1933 (ACT) Pt 8 |
Cases Cited: | Cameron v The Queen [2002] HCA 6; 209 CLR 339 Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 Cranfield v The Queen [2018] ACTCA 3 Hesseen v Burgoyne [2003] NTSC 47 Kajevic v Noble [2021] ACTSC 67 Law v Illievski [2016] ACTSC 291 Mack v The Queen [2009] NSWCCA 216 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Matruglio v Garrett [2012] ACTSC 110; 165 FLR 380 Maxwell v The Queen (1996) 184 CLR 50 Millard v The Queen [2016] ACTCA 14 Pearce v The Queen (1998) 194 CLR 610 R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 R v Carney [2013] ACTSC 266 R v Collins [2019] ACTSC 302 R v Crawford (No 1) [2020] ACTSC 245 R v Dowling (No 2) [2021] ACTSC 200 R v Eichmann [2019] ACTSC 212 R v Elphick (No 2) [2015] ACTSC 23 R v Forrest (No 2) [2021] ACTSC 259 R v Gomez [2007] ACTCA 21; 1 ACTLR 145 R v Guy [2018] ACTSC 270 R v Hoang [2016] ACTSC 183 R v John [2017] ACTSC 144 R v Law [2021] ACTSC 351 R v Liberti (1991) 55 A Crim R 120 R v Mathews [2020] ACTSC 364 R v McConnell-Imbriotis [2019] ACTSC 267 R v Mitchell [2016] ACTSC 85 R v Norton [2019] ACTSC 111 R v Okwechime [2015] ACTSC 129 R v Pelecky (No 2) [2020] ACTSC 370 R v Peter [2019] ACTSC 22 R v Pikula [2015] ACTSC 380 R v Po’oi [2021] ACTSC 151 R v Rosewarne [2021] ACTSC 217 R v Roux (No 2) [2015] ACTSC 361 R v Seefeldt [2020] ACTSC 361 R v Seymour [2021] ACTSC 152 R v Sharp [2019] ACTSC 175 R v Steen [2015] ACTSC 259 R v Subasic [2022] ACTSC 380 R v Williams [2015] ACTSC 15 R v Zdravkovic (No 3) [2020] ACTSC 258 Rees v The Queen [2012] ACTCA 6 Saga v Reid and Collett [2010] ACTSC 59 Smith-Roberts v Alexander [2014] ACTSC 239 Veen v The Queen (No 2) (1988) 164 CLR 465 Wong v The Queen [2001] HCA 64; 207 CLR 584 |
Parties: | The Queen (Crown) Dillon Matthew Guy (Offender) |
Representation: | Counsel C Muthurajah (DPP) E Chen (21 January 2022), C Duffy (23 March 2022, 25 March 2022) (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 273 of 2021 SCC 274 of 2021 SCC 301 of 2021 |
REFSHAUGE AJ
In R v Seymour [2021] ACTSC 152 at [1] the Court said:
One of the great advances in civilisation is the facilitation of transport in a speedier and more flexible way. Nothing exemplifies this perhaps more than the motor vehicle, which has liberated many in so many ways. As with any progress, there are risks and opportunities for misuse. Such is clearly evident with the motor car. It can be used to facilitate crime and it can cause great injury, even death, thus rendering it able to be used, in effect, as a weapon. Laws and rules have been made to minimise the abuse of the use of a motor vehicle.
This is an appropriate context in which Dillon Matthew Guy, who has pleaded guilty to offences of aggravated dangerous driving as a repeat offender, unauthorised possession of a firearm, unlawful possession of stolen property, possessing a drug of dependence and driving whilst disqualified, must now be sentenced.
On sentencing, the Crown tendered, without objection, its Crown Tender Bundle. As well as the prescribed cover sheet, it contained the committal and transfer documentation, since three of the offences, being summary offences, related to the two indictable offences, as well as an Agreed Statement of Facts, Mr Guy's Criminal History, photographs of the firearm, a firearm examination report dated 2 December 2021 and a driver licencing certificate.
Also included were the Drug and Alcohol Sentencing List Suitability Assessment Report dated 9 December 2021 of the Alcohol and Drug Services, with a Case Plan, and the Drug and Alcohol Treatment Assessment dated 14 January 2022 of the ACT Corrective Services, both being Drug and Alcohol Treatment Assessments (Suitability Assessments) under s 46J of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
Mr E Chen, counsel for Mr Guy, tendered the form signed by Mr Guy consenting to the making of a Drug and Alcohol Treatment Order (Treatment Order) under s 12A of the Sentencing Act, which showed that he had had such an order explained to him in words he could understand and that he had had an opportunity to ask any questions about it and have those questions adequately answered.
Ms C Muthurajah appeared for the Crown and relied on very helpful, targeted and thoughtful written submissions. Both counsel made appropriate oral submissions that were of great assistance to the Court.
From this material, the following findings can be made.
The facts
Early in the morning of 15 August 2021, Mr Guy was driving a motor vehicle, a blue Hyundai i30, along Erindale Drive, Oxley, in the ACT. The vehicle bore New South Wales number plates that had recently been stolen. The motor vehicle itself, however, had been stolen, but between 8 and 9 August 2021, from a residence in Richardson, ACT. The motor vehicle was the stolen property which Mr Guy was charged with having unlawfully in his possession. There was no evidence in the material before the Court that Mr Guy had stolen that motor vehicle or the number plates.
Police, seeing the vehicle, attempted to intercept it, but Mr Guy accelerated away, reaching speeds exceeding the posted speed limit by more than 30% and police lost sight of the vehicle.
The vehicle, however, was seen a short time later in Clive Steele Avenue, Monash, and again police tried to get it to stop by activating the police vehicle's emergency lights and siren, but Mr Guy did not pull over. Instead, he turned into Isabella Drive, crossing to the incorrect side of the road. Due to the dangerous nature of the driving, police disengaged their pursuit.
Later that morning, at about 1:00 am, Mr Guy was driving the vehicle in Palmerston, ACT, and again police saw it and attempted to intercept it. Police followed the vehicle along Gungahlin Drive and then Gundaroo Drive, but Mr Guy made a U-turn at a roundabout and then drove through a red light at the intersection of these drives. He then turned his lights off.
A police car was positioned further up the road and deployed a tyre deflation device, which deflated the left tyre of the vehicle. Mr Guy, however, continued to drive and another police car on patrol near the Barton Highway deployed a further tyre deflation device which deflated the vehicle's front and rear right tyres. The police activated their vehicle's emergency lights and sirens in a further attempt to intercept the vehicle, but Mr Guy continued to drive through a further red light at the intersection of the Barton Highway and William Slim Drive.
Despite being pursued by two police vehicles with their emergency lights and sirens activated, Mr Guy continued to speed away from police. The vehicle, however, was losing traction on the road, emitting large amounts of sparks from the right front wheel and, finally, drastically losing speed. A short time later, Mr Guy drove again onto the incorrect side of the road, mounted the road verge, hit a fence and came to a stop.
These were the facts that founded the offence of aggravated dangerous driving. The circumstances of aggravation were that the speed was in excess of 30% above the posted speed limit and he failed to stop for police when signalled to do so.
On 7 February 2018, Mr Guy had been convicted of dangerous driving and so was a repeat offender.
Police pulled Mr Guy out of the vehicle. He was the only occupant. He was arrested, but complained of an injury to his back so he was transported by ambulance to Calvary Hospital under police guard.
Later that morning a sample of blood was taken from him and submitted for analysis. There was no evidence that there was any alcohol in it.
A search of Mr Guy's backpack found numerous clip seal bags containing what, on analysis, proved to be methamphetamine, the total weight of which was 0.085 grams. This founded the charged of possession of a drug of dependence.
A search of the vehicle located an item described as a silver gel blaster handgun. It was submitted to examination by Mr Daniel Paine, a forensic firearm and toolmark examiner. He described it as “a 7-8 millimetre water gel ball unknown manufacturer self-loading air pistol”. It was able to be discharged and a gel ball was propelled from it. Mr Payne concluded that it conformed with the definition of an air gun as defined in the Firearms Act 1996 (ACT) and therefore fell within the definition of a firearm in that Act.
This was the basis for charging Mr Guy with the offence of unauthorised possession of a firearm. He had, at the time, no licence to possess it.
At the time of driving, Mr Guy had been disqualified from obtaining or holding a driver licence. On 14 September 2018, he had been convicted in this Court of the offence of culpable driving causing grievous bodily harm and of driving whilst disqualified, among other offences. He was further disqualified from obtaining or holding a licence for three years and two years respectively. The disqualifications, to be served concurrently, ending on 13 September 2021.
These facts founded the charge of driving whilst disqualified as a repeat offender.
The proceedings
As noted above (at [16]), Mr Guy was arrested on 15 August 2021 and refused bail. At the time, there also appeared to be a number of outstanding matters in the ACT Magistrates Court. He appeared the next day in that Court and was, so far as the offences now before the Court are concerned, charged with possession of a drug of dependence. He was refused bail and remanded to 6 September 2021, when he was further charged with driving whilst disqualified. Three days later, he pleaded guilty to the charge of possessing a drug of dependence.
The proceedings were then adjourned twice more and, on 18 November 2021, he was charged with three further offences, two of which this Court is currently concerned with, namely aggravated dangerous driving as a repeated offender, possessing stolen property and a further charge of possessing a prohibited firearm. The aggravated dangerous driving charge was amended as a result of negotiations between the parties and he pleaded guilty to those offences that day, as well as to the offence of driving whilst disqualified being a repeat offender.
He was committed for sentence to this Court and the summary offences were transferred under s 90B of the Magistrates Court Act 1930 (ACT) to be dealt with under Part 8 of the Supreme Court Act 1933 (ACT). He remained in custody.
He appeared in this Court on 26 November 2021 and, having been assessed as eligible for further assessment for a Treatment Order, Suitability Assessments were ordered, the proceedings were listed for sentence and directions were given for the proper preparation for the hearing.
On 18 November 2021, Mr Guy was also charged with possessing a prohibited firearm, but the proceedings for that offence were adjourned to 17 December 2021, when he pleaded guilty and was committed to this Court for that sentence.
Mr Guy was then further remanded in custody. He was, however, sentenced to imprisonment from 16 August 2021 to 21 January 2022 in the ACT Magistrates Court for offences of driving whilst disqualified and driving an unregistered and uninsured motor vehicle.
He was also convicted and sentenced in the ACT Magistrates Court on 16 March 2022 for an offence of driving whilst disqualified, when he pleaded guilty to that offence.
He was then sentenced for this offence to three months imprisonment, which was set to commence on 21 December 2021 and end on 20 March 2022.
Accordingly, up to that latter date he was a sentenced prisoner and, as has been held before in R v Po’oi [2021] ACTSC 151 at [44], that period of the sentence does not count, when being sentenced for other offences for which he is in custody at the time, bail having been refused, towards any period of pre-sentence custody that is to be later taken into account, for example under s 63 of the Sentencing Act. This may, however, be relevant when the Court considers totality if the period is continuous: R v Elphick (No 2) [2015] ACTSC 23 at [91].
As noted above (at [20]), Mr Guy was originally charged with possessing a prohibited firearm contrary to s 42 of the Firearms Act and he pleaded guilty to that offence. When, however, the matter came on for hearing of the sentence in this Court, the Crown tried to explain how the gun found in the motor vehicle was, in fact, a prohibited firearm. While that appeared to be satisfactory, it then became clear, when preparing these reasons for sentence, that the Court could not be convinced that the firearm was actually prohibited under the Firearms Act.
As such, Mr Guy could not have been convicted of the offence as a matter of law. While it would appear that the Court, on appeal, has the power to go behind a plea of guilty, where the accused could not, in law, be convicted of an offence (R v Liberti (1991) 55 A Crim R 120 at 121–2), it was not clear that the Court had power to reject the plea. Indeed, there were strong statements in the High Court doubting that power. See Maxwell v The Queen (1996) 184 CLR 501 at 522. Nevertheless, what the Court said was that the Court could invite the accused to seek to withdraw his or her plea, which could be done before sentence.
Accordingly, the Court took that step. Having done so, the Crown properly did not oppose that, given the circumstances. It did indicate, however, that this meant that Mr Guy would be alleged to have breached s 43 of the Firearms Act by having unauthorised possession of the firearm, because he had no licence for it. Applying the principles related to withdrawal of a plea set out by the Court of Appeal in R v Gomez [2007] ACTCA 21; 1 ACTLR 145 at 152–3; [38], he was permitted to withdraw his plea. As a result, an ex officio indictment was presented for the fresh charge of unauthorised possession of a firearm, Mr Guy pleaded guilty to that offence and the sentencing proceeded.
The offences
The difficult task of sentencing requires a consideration of a range of factors, some of which have been mandated for consideration by the court relating to an offence and an offender.
Thus, s 33(1) of the Sentencing Act sets out the required considerations, though it is not an exhaustive list of what the court might consider. Section 33(1)(a) requires consideration of the nature and circumstances of the offence for which the sentence is to be imposed.
To consider that, a number of matters are important. Foundational are the facts of the offence, which have now been found. Then, it is essential to have regard to the maximum penalty, which the legislation creating the crime prescribes. As the High Court in Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 372; [31] said:
It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.
The Court must next consider the assessment of the particular case and the offence that is the subject of each plea of guilty and for which the offender must be sentenced. Thus, it is to be assessed by consideration of those factors identified by courts as aggravating and mitigating an offence. This can be assessed from current sentencing practice: s 33(1)(za) of the Sentencing Act. That current sentencing practice is also required to be considered.
Aggravated dangerous driving is an offence under ss 7 and 7A of the Road Transport (Safety and Traffic Management) Act 1999 (ACT), which set a maximum penalty of five years imprisonment or a fine of $80,000 or both. It is, thus, a moderately serious offence though, of course, it has a central role in keeping road users safe.
The Court has set out in R vLaw [2021] ACTSC 351 at [31] the factors that the courts have identified as relevant to an assessment of the seriousness of the offence, after consideration of the authorities. It is not necessary to repeat them, but the relevant ones will be mentioned here.
An important matter is the number of road users, or those adjacent, who were put in danger by the driving. In this case, there was no evidence of any other road users or others, apart from the police, whose safety is, of course, still very relevant.
The time of the driving, between 12:35 am and sometime shortly after 1:00 am, namely the middle of the night, makes it unlikely that there would have been many road users and especially very, very few pedestrians. There were, on the evidence, none. That does not moderate the seriousness of the offence, but means that it is a less aggravated offence.
The driving was erratic, including driving on the incorrect side of the road more than once and driving through red lights a number of times. Driving through a red light at speed is highly dangerous.
Of course, the elements of the offence make it dangerous driving in itself, being at a very high speed and failing to stop for police and also being a repeat offender.
The distance travelled is relevant, but not easy to assess. From Erindale Drive in Oxley to Clive Steele Avenue in Monash would be, depending on exactly where, just a couple of kilometres, but from Clive Steele Avenue to Gundaroo Drive, Palmerston is from one end of Canberra to the other, likely to be more than 30 kilometres. He then drove down over the Barton Highway onto William Slim Drive, Giralang. In all, he drove for about 35 to 40 kilometres. Most of the roads where there was interaction with police were not in built-up areas, until he drove onto Owen Dixon Drive, McKellar, where part of it was built-up.
Mr Guy had no passengers, but was engaged in police pursuits. While there were no collisions with other vehicles, he did hit a fence which caused him to stop. By that time the tyres were deflated and the rims would have also been damaged.
It was, nevertheless, a sustained episode of driving with the intention of evading police and continuing despite the pursuits, in each of which the police requested him to stop through the activation of emergency lights and sirens, in one case with two pursuing police vehicles and two assaults on the vehicle's tyres, which became deflated and ultimately led to the car ceasing to be able to be controlled.
Indeed, there were a number of occasions when the police saw Mr Guy driving in this dangerous manner. There were also times when they had no sight of him and it may be that he was then not driving in this way, thus the times when he was sighted by police could have been charged as separate incidents. That did not prevent them from being prosecuted in the one information as a rolled-up plea.
Insofar as this may have been the proper way to approach it, the result would probably be the same, namely a more severe sentence. See the discussion of the issue of sentencing for a rolled-up charge in R v John [2017] ACTSC 144 at [106]–[107].
This was quite a serious offence, though not the most serious, and other more serious examples of dangerous driving are regrettably encountered in the courts, especially as there was no evidence of any road users around, other than the police.
Unauthorised possession of a firearm is contrary to s 43(a)(iii) of the Firearms Act 1996 (ACT) which attracts a maximum penalty of five years imprisonment. Thus, it is, as expected, a serious offence, though not as serious as the first offence. The context in which it was enacted is set out in R v Mitchell [2016] ACTSC 85 at [1], though that related expressly to the more serious offence under s 42, but is equally applicable to this offence.
There are, regrettably, a surprisingly large number of occasions when similar offences are dealt with in the Courts of this Territory. Consideration of relevant factors was given by the Court in R v Mitchell, though largely relying on Mack v The Queen [2009] NSWCCA 216 at [40]. There have been other relevant considerations also identified in recent ACT cases. See also Smith-Roberts v Alexander [2014] ACTSC 239, R v Okwechime [2015] ACTSC 129, R v McConnell-Imbriotis [2019] ACTSC 267, R v Zdravkovic (No 3) [2020] ACTSC 258, Kajevic v Noble [2021] ACTSC 67, R v Forrest (No 2) [2021] ACTSC 259, R v Rosewarne [2021] ACTSC 217, R v Sharp [2019] ACTSC 175, R v Peter [2019] ACTSC 22 and R v Seefeldt [2020] ACTSC 361.
From a consideration of these cases in particular, the following aggravating factors are relevant:
(a)the number of firearms: R v Sharp at [38], R v Mitchell at [85], though it is to be noted that there are more serious penalties for various numbers of firearms possessed;
(b)the nature and type of the firearm: R v Mitchell at [85];
(c)the capacity of the firearm to be discharged (Kajevic v Noble at [19]), especially whether it is loaded: Smith-Roberts v Alexander at [11]–[12];
(d)whether it is easy to conceal the firearm: R v McConnell-Imbriotis at [14], Kajevic v Noble at [19], R v Okwechimi at [11] and Smith-Roberts v Alexander at [11]–[12];
(e)where the firearm was located and, especially, whether it was properly secured or easily accessible to others: R v Mitchell at [85], Kajevic v Noble at [19], R v Okwechimi at [11] and R v Seefeldt at [21];
(f)the length of time for which the offender had had possession of the firearm: R v Mitchell at [85] and Kajevic v Noble at [19];
(g)the circumstances in which the firearm came into the offender's possession: R v Mitchell at [85]; and
(h)the reason why the offender had it in his possession: Kajevic v Noble at [19].
In this case, the firearm was found in the vehicle. The evidence did not show if it was hidden or in plain sight. Given that the matters of aggravation must be proved beyond reasonable doubt (R v Carney [2013] ACTSC 266 at [149]) it is not possible to find, on this evidence, that it was so openly displayed as to aggravate the offence seriously, though it was in the vehicle, “a highly insecure storage place that is often stolen and relatively easy to break into”: Kajevic v Noble at [19].
It was a handgun and, from the photographs, a firearm that was relatively easy to conceal.
The examiner received it “disassembled”. The evidence does not show whether that is how it was found in the vehicle, though this seems likely, although the Agreed Statement of Facts suggests, but not certainly, that it may have been in in this state where it was said that “the offender's DNA [was] taken from the components of the firearm”. In any event, no ammunition was found and the forensics examiner found that there were insufficient components to assemble a complete firearm, especially lacking a trigger. While a tool, a pin punch, could effect its discharge, this moderates the seriousness of the offence as it was not, for those reasons, able to be immediately discharged by use of a trigger, though it could have been fired by a person, including Mr Guy, if they had the appropriate tool and ammunition, both unlikely, as they were not found.
There is no evidence as to why Mr Guy had the firearm, how long he had it or how it came into his possession. He gave no explanation as to why he had obtained it. This was not a particularly serious version of a very serious offence.
Unlawful possession of property reasonably suspected of being stolen is a crime under s 324 of the Criminal Code 2002 (ACT), which prescribes a maximum penalty of six months imprisonment or a fine of $8,000 or both. It is, thus, not regarded by the legislature as a very serious offence.
It is, however, not at all to be minimised as it is, in effect, a form of the serious offence of receiving, though a less serious form: R v Roux(No 2) [2015] ACTSC 361 at [79]. As pointed out in Saga v Reid and Collett [2010] ACTSC 59 at [80], however, if there were no receivers, there would not be so many thieves. This shows its underlying criminality: Rees v The Queen [2012] ACTCA 6 at [3]. Factors that aggravate the offence include:
(a)the value of the property: R v Pelecky (No 2) [2020] ACTSC 370 at [40], Law v Illievski [2016] ACTSC 291 at [130];
(b)whether there was planning or sophistication in the commission of the crime: R v Roux (No 2) at [84], R v Dowling (No 2) [2021] ACTSC 200 at [41]; and
(c)the circumstances in which the property came into the possession of the offender: Hesseen v Burgoyne [2003] NTSC 47 at [7].
In this case the property was a motor vehicle, a blue Hyundai i30. There was no evidence of its value or even its vintage. It can be accepted, however, that it was likely to be of a significant value, probably many thousands of dollars. The Court cannot speculate on how many that was, just that it was likely to be substantial.
There does appear to have been some planning in the acquisition of the property, as the registration plates had been changed, but there is no evidence of whether Mr Guy was in any way responsible for that and, indeed, there was no evidence of how he came into possession of the vehicle.
Possessing a drug of dependence is prohibited by s 169(1) of the Drugs of Dependence Act 1989 (ACT), which sets a maximum penalty of two years imprisonment or a fine of $8,000 or both. In this case, the drugs were shown by analysis to be methamphetamine.
There is, however, no hierarchy of drugs, other than as expressly provided for by the legislature as, for example, it has set by making possession of cannabis a less serious offence through the maximum penalty prescribed: s 171AA of the Drug of Dependence Act. See R v Subasic [2022] ACTSC 380 at [82]. Nevertheless, the quantity of the drug is relevant. Purity is relevant to trafficking rather than simple possession offences. In this case, the amount was reasonably small, being 0.085 grams.
Driving whilst disqualified as a repeat offender is made an offence by s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) and that sets a maximum penalty of 12 months imprisonment or a fine of $16,000 or both. There is also, on conviction, an automatic licence disqualification for 24 months, or such longer period as the court may determine. In this case, Mr Guy is a repeat offender, prescribed as such by s 61AA of the Road Transport (General) Act 1999 (ACT), because he was convicted on 14 September 2018 of driving whilst disqualified.
Under s 69 of the Road Transport (General) Act, such a disqualification is cumulative on any current disqualification, unless the Court orders otherwise. In this case, Mr Guy was disqualified automatically for two years for the earlier offence, but also for 12 months for driving with a drug in his oral fluid, for three years for culpable driving causing grievous bodily harm and for 12 months for failing to stop for police. Each was to be served concurrently: R v Guy [2018] ACTSC 270 at [59]. He will, thus, no longer be serving these periods of disqualification.
He was, however, also convicted earlier this year for another offence of driving whilst disqualified, as noted above (at [29]). That driving occurred on 3 February 2020, for which he was sentenced in the ACT Magistrates Court. This attracts an automatic licence disqualification for 24 months, which he is currently serving.
Thus, it is relevant that Mr Guy has a history of breaking court-ordered licence disqualifications. There were two more in his criminal record, as well as four offences of driving whilst his licence was suspended. There is no reason that the disqualification should not be cumulative.
No reason for his driving on this occasion was proffered and his driving at the hours of the night suggest that there was none that would be likely to mitigate his offence. It seems likely to be contumelious driving: Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 at 306–8; [33]–[42].
The manner of driving is also relevant. Being subject to a separate charge will require some concurrency of the sentences. The length of driving is not clear, though that was addressed above (at [8]–[13]).
Subjective circumstances
It is important to consider the personal circumstances of an offender and to consider the facts and nature of the offences. The latter have been set out and Mr Guy's personal history will now be considered. Mr Guy is not a good historian, or perhaps communicator, as the histories reported to the authors of the Suitability Assessments were different in various aspects.
He was born in Queanbeyan 26 years ago, the only child of his parents' union, though he had a half-sister. His parents divorced when he was young and he has limited contact with his father. He describes a “normal childhood”.
His mother remarried to a man whom Mr Guy regards as a positive role model and whom he regards as his father. He continues to have a supportive relationship with his family, though it appears that there was a period when he did not have great contact.
He went to school in Canberra and was quite “good at school”, though he was in and out of some trouble in his high school years. He particularly liked manual studies, such as woodwork and metal work. He gained a Year 10 Certificate, but left school after that.
He commenced work as a labourer for a roofing company and then started a cabinet-making apprenticeship with a kitchen building company, though it only lasted a few months. He then began working for his stepfather, a qualified carpenter. This is work he proposes to recommence when released and this appears to be available to him.
Mr Guy has had one significant intimate relationship, which resulted in the birth of his eight-year-old daughter, to whom he is devoted. He is concerned about the effect of her knowing of his incarceration. The relationship with his partner ended some years ago, after they had been together for about 14 months. There was, for a while, animosity between them after the breakup, but that has now been ameliorated and they have an amicable relationship.
Mr Guy proposes, on release, to live either with a friend in Chisolm, ACT, or at the house of his parents in Isabella Plains, ACT. His parents have consented to him living there.
Mr Guy was involved in a motor vehicle collision in 2016 when he fractured his pelvis and sacral area after being pinned by a car. In 2018, he suffered a “degloving” injury to his left knee, namely an injury where the skin and the subcutaneous tissues are separated from the deeper tissue layers, and an injury to his ankle also following a motor vehicle collision. In 2020, he presented to hospital following a head injury. He says that, despite these injuries, he has no physical problems save some residual pain in his legs following the injuries and which is treated with prescribed pain medication while he is in the community. Physical therapy also assisted with that and with some numbness he experiences from time to time. He has had some dermatological referrals.
When assessed for eligibility to proceed to Suitability Assessments, Mr Guy was not assessed as having any acute or pervasive symptoms of major mental illness. He suffers some anxiety and depression, though without a formal diagnosis, but has been prescribed a depression-addressing medication.
Mr Guy started using drugs at a relatively early age, but not as young as many of the participants of the Drug and Alcohol Sentencing List are regrettably introduced to them.
He does drink alcohol, but does not drink a lot or often and when last in the community he only drank a few times.
He commenced using cannabis when he was young and, between 14 and 19 years of age, its use became a significant problem. At its heaviest use, he was smoking up to five grams a day. He last used prior to being taken into custody. He did stop when he and the mother of his daughter separated, but appears to have resumed use. He stated that he considers that he can control his use in the community.
Mr Guy first used methamphetamine when he was 17 years old. As frequently occurs, this progressed to daily use by the time he was 19 years old. Though he reduced its use at around age 24, he later relapsed back to daily use of approximately two points (0.2 grams) per day. He says that his then use was a significant contributing factor to his current offending.
He has used opiates, initially in the form of diverted buprenorphine while in custody. He was later placed on a methadone maintenance treatment program, but discontinued after “going on a bender” and used amphetamines, missing his methadone doses for six days. He could not immediately access a doctor and declined further treatment, self-medicating his withdrawal symptoms with heroin, using up to half a gram a day for about six months. He was then further incarcerated and placed on Buvidal treatment.
He has tried Gamma Hydroxy-Butyrate (GHB) and cocaine a few times each, but has not used hallucinogens or other substances, except tobacco. He started smoking cigarettes at age 12 or 13, becoming a daily smoker by 15 years old, but has reduced his use several times, though he currently uses five to 10 cigarettes a day.
Mr Guy has had some alcohol, tobacco and other drug treatment, though so far without success. As noted above, he was placed on a methadone program and then later buprenorphine (Buvidal) treatment. He ceased the latter when, in 2021, he was admitted to Oolong House, as to which, see R v Williams [2015] ACTSC 15 at [8]–[10]. He was, however, discharged from there about five weeks later for testing positive to buprenorphine. He denied use, saying that it must have been still in his system, which sounds somewhat unlikely on the facts as before the Court.
In 2018, he did successfully complete the Solaris Therapeutic Community Program in the Alexander Maconochie Centre. That program is described in R v JM [2014] ACTSC 380 at [26].
He has also experienced SMART Recovery, a program described in R v Pikula [2015] ACTSC 380 at [39], and attended Narcotics Anonymous groups. Both “resonated with him”.
Mr Guy has a relatively long history of crime for his age. [Redacted for legal reasons].
As an adult, he has 34 offences on his record. While the majority of them relate to motor vehicles, 23 offences, some are quite serious, including culpable driving causing grievous bodily harm, dangerous driving and dishonestly driving a motor vehicle without the owner's consent. Some are what have been called “technical offences” in R v Norton [2019] ACTSC 111 at [6], such as driving an unregistered or uninsured vehicle, though, as noted in Matruglio v Garrett [2012] ACTSC 110; 165 FLR 380 at 384; [22], they are still criminal offences.
Worryingly, eight of the offences on his record are dishonesty offences, though less serious ones. The offence of dishonestly driving a motor vehicle without consent, however, counts both as one relating to motor vehicles and also dishonestly and is a more serious dishonesty offence than some of the others he has committed.
He has also failed to appear to answer his bail on one occasion, but in 2017.
He was first imprisoned in 2017, but the sentence was suspended. In 2018, however, he was sentenced to seven months imprisonment. Then, on 14 September 2018, he was further sentenced to a lengthy term of imprisonment with a non-parole period of 13 months and two weeks from 20 May 2018, only a little over a month after his previous term of imprisonment had ended. He was further sentenced to imprisonment on 27 March 2019 for offences dating from prior to the earlier imprisonment. As noted above (at [29]–[31]), part of the time in custody for these offences has been served as a sentence for other offences dealt with in the ACT Magistrates Court.
Mr Guy has performed unsatisfactorily when released on community-based orders, especially parole orders. He has, of course, reoffended while on such orders as shown above (at [21]), but has also been the subject of breach reports of parole from using illicit substances, not following directions and not residing as directed. He has been reported as having behaved in a stupid and apparently childish manner while on remand on 17 December 2021.
Current sentencing practice
Section 33(1)(za) of the Sentencing Act requires the court sentencing an offender to take into account current sentencing practice. This is in addition to the way it has been taken into account already, when considering the aggravating or mitigating factors that the courts have identified to determine the nature and circumstances of the offence and how serious the actual offences committed are.
There are various ways that this can be further considered. Generally, it is preferable to consider comparable decisions of the Court in recent times. This shows not only the sentences imposed, but also the reasons for doing so, the principles applied towards the sentence and the relevant factors taken into account.
Given the diversity of the ways in which offences are committed and the personal circumstances of the offender, it can be difficult to find decisions that are actually comparable. In this case, neither counsel drew the Court's attention to any particular decisions.
In R v Law at [29]–[32], the Court considered a number of relatively recent cases on the offence of aggravated dangerous driving. It is not necessary to repeat that consideration here, but regard will be had to it and to the decisions referred to in that decision itself, in which Mr Law was sentenced for that offence. There are, of course, differences, but they have been valuable in considering the nature and seriousness of the offending.
The Court has also had regard to the decisions in R v Pelecky (No 2) and R v Seymour.
The second way in which current sentencing practice can be considered is by having regard to the sentencing statistics for the offence recorded for the offence, as recorded in the ACT Sentencing Database.
It must be acknowledged that there are limitations on such statistics. This has been discussed in R v Mathews [2020] ACTSC 364 at [44]–[48]. The issue is to be approached in that way.
One of the sad limitations on the Database is that many of the sentencing remarks are merely summarised. There are links that sometimes appear so that the Court, when researching using the Database, can read the decisions themselves to see the relevant factors considered and the principles applied, but, regrettably, some, but not many of these factors and sometimes not the more significant ones, are recorded in the statistics.
In this case, the number of records is so low — in the Supreme Court, one offence under ss 7 and 7A of the Road Transport (Safety and Traffic Management) Act — as to make the records unhelpful and uninformative. Under s 7, there is a page for what is nevertheless said to be “aggravated furious, reckless, dangerous driving”, though it is actually s 7A that renders it an aggravated offence. There were four records, all of fines.
Regrettably, two of the sentencing remarks which were linked to the Database were of R v Pelecky (No 2), for which the penalty was not, in fact, a fine, but a sentence of nine months imprisonment for one and 14 months imprisonment for the other. The third linked to the decision of R v Collins [2019] ACTSC 302 where, again, the penalty was not a fine, but a sentence of one year and three months imprisonment, though not so shown in the statistics.
The fourth was more puzzling. It referred to R v Vardai [2020] ACTSC 297, which was a sentence for recklessly inflicting grievous bodily harm and not aggravated dangerous driving at all. It also referred to R v Eichmann [2019] ACTSC 212, which was the sentencing remarks for a decision to impose a sentence of 12 months imprisonment and not a fine at all.
Regrettably, this raises serious questions about the value of what should otherwise be a very valuable resource, though with the limitations referred to above. [Since this judgment was delivered, the Database has been updated.]
Nevertheless, the Court has had regard to these decisions.
Consideration
Mr Guy must now be sentenced for the offences he has committed and to which he has pleaded guilty. The law requires that the sentence be a just one: Wong v The Queen [2001] HCA 64; 207 CLR 584 at 616; [85].
In order to achieve that objective, it is extremely important to have clarity about what the sentence is intended to achieve and this will then require the identification of the purposes of the sentence.
In this Territory, fortunately, the purposes of sentencing are set out by the legislature in s 7 of the Sentencing Act and it is important that a court sentencing an offender have regard to them: R v Hoang [2016] ACTSC 183 at [29].
The serious breach of society's norms, which Mr Guy's offending constitutes, requires a retributive response so that punishment must contribute to the sentence. At the same time, this must reinforce the norms both by denouncing the conduct and also by making it clear that other persons should be deterred from committing the same or similar acts.
Of course, Mr Guy should also have it clear from the sentence that he should not continue to offend in this way, so that he might be deterred from repetition. This has not yet been effective as he is a repeat offender and this will inform the nature and severity of the sentence.
On the other hand, it will be relevant to consider how Mr Guy might be encouraged and enabled to rehabilitate so that the factors that contributed to his offending may be addressed and hopefully managed so that he does not reoffend.
All of this will contribute to the protection of the community, both from Mr Guy and more generally.
Finally, there are victims of Mr Guy's offences. The owner of the stolen motor vehicle has not only suffered from the temporary loss of his vehicle, it has also been damaged and that compounds the loss and inconvenience. This harm must be acknowledged.
Mr Guy pleaded guilty and this is also relevant. In appropriate cases, this will justify a reduction in his sentence: s 35 of the Sentencing Act. This has been part of the common law: Cameron v The Queen [2002] HCA 6; 209 CLR 339 at 343; [11].
While the utilitarian value of such a plea to the criminal justice system has been a primary, if not the only, consideration in determining the amount of reduction in a sentence (R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at 10; [32]) it is accepted that, in this Territory and as indicated in Cameron v The Queen, there are other factors to be taken into account and which will affect the sentencing: s 35 of the Sentencing Act; Cranfield v The Queen [2018] ACTCA 3 at [35].
Mr Guy pleaded guilty in the Magistrates Court before the proceedings were transferred to this Court. The prosecution had prepared a Brief of Evidence, so for some of the offences he had earlier pleaded not guilty. The material available does not show the precise chronology, though it is set out above so far as the Court is aware.
The entering of the pleas is some evidence of remorse and a wish to rehabilitate, for which Mr Guy showed enthusiasm. While there is some evidence of remorse in the plea of guilty, Mr Guy was said, in the Suitability Assessment, without challenge, to have shown limited insight into the risk his offending posed to the community. It was, however, expressly noted in the other Suitability Assessment, also without challenge, that he “appeared highly motivated to do better for the sake of his daughter and appeared remorseful at times regarding his offending behaviour and how this had impacted on his daughter and his mother particularly”. In all, a reduction of the sentence as a result of the plea of guilty is to be afforded to him.
As also noted above (at [89]–[91]), Mr Guy has committed a number of the current offences before. Indeed, some he has committed a number of times.
Nevertheless, care must be taken with the way in which this factor is addressed. Generally, but not necessarily, it will deprive an offender of leniency, but may merely allow for limited moderation of the sentence and where, for instance, a prior offence was committed a long time ago or was of a different character, in which case it may not affect the leniency that can be afforded: see R v Steen [2015] ACTSC 259 at [21]. It can, however, elevate the culpability for the current offences: Millard v The Queen [2016] ACTCA 14 at [38].
It is important, however, to note that the prior offending cannot justify a sentence greater than that which is appropriate to the current offence and cannot justify preventive detention or elevate general deterrence above that which otherwise is just and appropriate. It is important that the effect of the sentence is not seen as imposing a fresh penalty for the prior offences: Veen v The Queen (No 2) (1988) 164 CLR 465 at 468, 491, 496.
Mr Guy has shown some commitment to his rehabilitation, though he still has a long way to go. He was described, without challenge, as “enthusiastic and engaged”. He would, as noted in one of the Suitability Assessments, benefit from further participation in prevention and substance abuse programs.
Account must and will be taken of the nature and circumstances of the offences that Mr Guy has committed and as they have been described above. The personal circumstances of Mr Guy, as they have also been described earlier, must and will also be taken into account. The harm done to the victims of Mr Guy's offences which, despite not having any Victim Impact Statements, the Court can nevertheless understand from the Court's own knowledge, must and will further be taken into account. The Court accepts the relevant matters also referred to above.
Having considered the relevant material and all other alternatives, no other penalty than a sentence of imprisonment is appropriate: s 10 of the Sentencing Act.
Mr Guy must now be sentenced for five offences. In doing so, the Court is required to impose a sentence for each offence, as set out in Pearce v The Queen (1998) 194 CLR 610 at 623–4. The Court, as also required, has carefully considered the length of each sentence to ensure that it does not punish Mr Guy twice and yet it is just and adequate.
The Court has also considered whether the sentences should be partly or wholly concurrent because, for example, they are part of the same course of conduct. In this case, that does apply to three of the offences, being aggravated dangerous driving, unlawful possession of property and driving whilst disqualified. In addition, these three offences can have some common elements, which requires some concurrency.
The Court must also consider the length of the total term of imprisonment reached from that process and then consider whether the principle of totality then requires that some sentences be made concurrent, or partially concurrent, so that the total sentence adequately reflects the total of the criminality and is not excessive, but no more than that and will then permit Mr Guy a realistic prospect of his reform and leave him with the possibility, when released, of taking an effective part in the community and realising his aims.
While this may result in some leniency, by such concurrency, the total criminality is important, but must not overwhelm Mr Guy's growing awareness of his need for rehabilitation. This is also an important consideration which requires a sentence proportionate to his culpability for the offending conduct and the effect on the community, but also Mr Guy's subjective circumstances and the value of his reform to both the community and himself.
Sentence
[His Honour then spoke directly to the offender]
Mr Guy, please stand.
1.You are convicted of aggravated dangerous driving as a repeat offender and sentenced to 14 months imprisonment, to commence on 22 March 2022 and end on 21 May 2023.
2.You are convicted of unauthorised possession of a firearm and sentenced to four months imprisonment, to commence on 22 May 2023 and end on 21 September 2023.
3.You are convicted of unlawful possession of stolen property and sentenced to four months imprisonment, to commence on 22 July 2023 and end on 21 November 2023.
4.You are convicted of possession of a drug of dependence and sentenced to two months imprisonment, to commence on 22 November 2023 and end on 21 January 2024.
5.You are convicted of driving whilst disqualified as a repeat offender and sentenced to four months imprisonment, to commence on 22 September 2023 and end on 21 March 2024.
That is a total sentence of two years imprisonment, to commence on 22 March 2022 and end on 21 March 2024.
You may be seated.
Drug and Alcohol Treatment Order application
Mr Guy has now been sentenced to imprisonment for the offences that he has committed and to which he has pleaded guilty. He sought a Treatment Order to address his major criminogenic need, namely his dependence on drugs.
In order to consider this request, it is necessary to confirm that he is eligible for such an Order and to decide whether he is suitable. First, then, the Court will address the question of eligibility, which is set out principally in s 12A of the Sentencing Act.
In the first place, on Mr Guy's plea of guilty he has been sentenced to imprisonment. The period is 14 months for the offence of aggravated dangerous driving as a repeat offender. This is within the eligibility range for the primary offence, which is between one and four years imprisonment. He has also been sentenced to a total of two years imprisonment, which is within that range also. All the offences are eligible offences.
Mr Guy is not subject to any other sentencing order within the meaning of s 12A of the Sentencing Act.
The unchallenged Suitability Assessments show a long history of drug use, including periods of abstinence, but then relapse. He has also been assessed as suitable for, and then admitted to, residential drug rehabilitation programs as well as pharmacotherapy programs. He has expressed the wish to be drug free and acknowledges his problematic drug use history. From this, the Court is satisfied that he is dependent on a controlled drug, namely methamphetamine.
The Statement of Facts asserts, also without challenge, that Mr Guy told police when arrested after the offending that he was “heavily under the influence of methamphetamine at the time”. This, together with the other evidence, shows that his drug use contributed substantially to his offending behaviour.
Mr Guy was born in the Queanbeyan area, moved to Canberra at an early age and was educated at Canberra schools. He has lived here since. He has only one offence on his criminal recorded committed in New South Wales, in 2015. He will, on the balance of probabilities, live in the ACT for the next two years.
Mr Guy has signed a form consenting to the making of such an Order. It discloses that he has had sufficient information to be able to make a balanced judgment about whether or not to consent to serve his sentence under the Order and that he has had an opportunity to ask any questions that he might have about the Order. Those questions have been answered and he has apparently understood the answers.
The Suitability Assessments, which are professionally and comprehensively prepared, assist the Court considerably in determining this matter before it. Both recommend Mr Guy as suitable for a Treatment Order. They set out the details of the facts and assessments on which the recommendations are made. No challenge was made to either of them.
There is, so far as any evidence before the Court is concerned, no indication, as set out in Table 46K of the Sentencing Act, of unsuitability that needs to be addressed or which would render Mr Guy unsuitable to be subject to a Treatment Order. No submissions to the contrary or that such an Order would be unsuitable for him have been made by either counsel.
A Treatment Order is therefore suitable for Mr Guy. There is no reason why he should not serve his sentence in this way and every reason why he should do so.
A comprehensive Case Plan has been prepared by the Alcohol and Drug Services, which is appropriate and adequate for the administration of a Treatment Order.
Although the sentence commenced two days ago and to make a Treatment Order the sentence must be fully suspended under s 80W of the Sentencing Act, for the reasons set out in R v Crawford (No 1) [2020] ACTSC 245 at [91]–[111], this earlier commencement does not breach this requirement.
Drug and Alcohol Treatment Order
[His Honour again spoke directly to the offender]
Mr Guy, please stand again.
6.A Drug and Alcohol Treatment Order be made under s 12A of the Crimes (Sentencing Act) 2005 (ACT) for you for 23 months and 26 days, from today, 25 March 2022 until 21 March 2024 in respect of the primary offence of aggravated dangerous driving as a repeat offender, of which you have been convicted and for which you have been sentenced to 14 months imprisonment.
7.The Order is extended to the other offences of unauthorised possession of a firearm, unlawfully possessing stolen property, possession of a drug of dependence and driving whilst disqualified as a repeat offender, of which you have been convicted and for which you have been sentenced and which are associated offences of that primary offence.
8.The convictions for the primary offence and the associated offences have been recorded and sentences have been imposed for each of them, which convictions and sentences are hereby incorporated into the Drug and Alcohol Treatment Order in the custodial part of the Order.
9.The custodial part of the Drug and Alcohol Treatment Order for the primary and associated offences is hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 from today, 25 March 2022, until 21 March 2024.
10.For the treatment and supervision part of the Drug and Alcohol Treatment Order:
(a) The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 are hereby imposed;
(b) You are to undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of the Team about where you reside, with whom you associate and your attendance from time to time; and
(c) You must comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.
11.You are directed to appear in person in Court next Friday, 1 April 2022 at 11:30 am.
12.You are directed to attend the Court Registry before you leave the Court today to sign a sealed copy of this Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that the Order is in force.
Mr Guy, you have had all that explained to you, but I need to briefly explain it to you. Basically, I have said this spree of offending, in relation to your history and, in particular, driving, must stop. If your use of drugs is a part of that, well, you have come to the right place.
The Order is for two years. You do not have to serve any more than the three days you have already served. Now, you have served a lot of time, but that was for other sentences. You do not have to serve any more days, now that you are under the supervision of the Treatment Order.
That requires you to do various things and you will be told about what you have to do. It will include urinalysis three times a week, attending on a health worker for case management, attending counselling and attending Court, initially once a week, every Friday. That is really for a number of reasons. One is to see how you are going; to congratulate you if you are going well and to sanction you if you are not going well.
The reality is that it will be tough. I have got a letter here, which will set out the requirements. That will set out telephone numbers. You will need to give any Case Manager or any counsellors and others, including Corrective Services, your telephone number so that they can contact you. What is really important is that when they ring you, you ring them back, because no contact is something that you will get sanctioned for.
Obviously, you must not use drugs. It is tough and if you do relapse, and I am not saying you should and I am telling you not to, but if you do, admit it. If you do not admit it, that is more serious. Honesty is really important. That is not just honesty to your counsellors, and to the Case Managers and the Court. You must also be honest with yourself.
You also must not reoffend. Again, if you do, confess it and we will deal with it, but that is more dangerous because if you offend and are sentenced to prison, that is the end of the Order, and you go back to gaol for two years. That happens automatically. I do not say that to threaten you, that is so that you understand the consequences.
If there are things that are getting difficult for you, when you come in on Friday, tell me about it. It can be a bit embarrassing sometimes in the full Court, and we can make arrangements if you want to talk to me privately. If there are things in the Order that are causing you difficulties, we can change them if it is appropriate. I do not offer to do that, but I am saying that we can if we need to. If you have other difficulties, let us talk about them. I am pretty powerful as a Judge. I cannot resolve everything, but often I can direct you to people who can assist you.
I hope this works. You are young enough to put all this behind you. You have got a life before you. Do not waste it. One of my colleague judges described someone as needing to change his residential address to the AMC. You do not want to be like that. You want to be out in the community. You have got a child that you want to commit to being a father to, and be a role model for, which is not someone who is in and out of prison and doing drugs. You have come to the right place. We will help you. We are here, but, at the end of the day, it is up to you.
Mr Chen has done a really good job for you. He is a very experienced and professional lawyer, but he will not be acting for you anymore. A Legal Aid lawyer will act for you for the whole of the period of the Treatment Order. They will make contact with you and you can use them in the same way as any other lawyer.
I hope this works. Good luck. I seriously mean that. This is your opportunity, I hope you take it with both hands and I hope this will work for you.
You may be seated.
| I certify that the preceding one hundred and fifty-six [156] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge Associate: Date: 14 March 2023 |
10
51
0