R v Guy (No 3)
[2024] ACTSC 118
•23 April 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Guy (No 3) |
Citation: | [2024] ACTSC 118 |
Hearing Date: | 22 April 2024 |
Decision Date: | 23 April 2024 |
Before: | Christensen AJ |
Decision: | See [55]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Good Behaviour Order after cancellation of Drug and Alcohol Treatment Order – breach of Good Behaviour Order – s 110 cancellation – imposition or resentence – aggravated dangerous driving – possession of a firearm – possession of stolen property – possession of drug of dependence – driving while disqualified – fines imposed – term of imprisonment suspended – Good Behaviour Order imposed |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) ss 86, 110, Pt 6A.2 |
Cases Cited: | R v Guy [2022] ACTSC 373 |
Parties: | Director of Public Prosecutions ( Crown) Dillon Matthew Guy ( Offender) |
Representation: | Counsel G Meikle ( Crown) C Duffy ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Number: | SCC 273 of 2021 SCC 274 of 2021 SCC 301 of 2021 |
CHRISTENSEN AJ:
Introduction
Dillon Guy comes before the Court to be dealt with for a breach of a good behaviour order made as part of a suspended sentence pursuant to s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act).
Background
On 25 March 2022, Mr Guy was sentenced to a total term of two years imprisonment ordered to be served by way of a Drug and Alcohol Treatment Order (Treatment Order): see R v Guy [2022] ACTSC 373 (R v Guy).
The Treatment Order was cancelled on 31 January 2023 in circumstances where Mr Guy had not completed rehabilitation programs and had occasions of continued illicit substance use. Mr Guy had been subject to the Treatment Order for a period of 10 months at the time of cancellation.
After a period on bail intended to enable continuation of rehabilitation efforts, Mr Guy was resentenced on 4 September 2023: see R v Guy (No 2) (Refshauge AJ, unpublished, SCC 273, 274, 301 of 2021, 4 September 2023) (R v Guy (No 2)).
The Court on resentencing had regard to Mr Guy’s successful completion of the Arcadia House day program, and imposed a suspended sentence with a good behaviour order. Mr Guy was resentenced and a suspended sentence with a good behaviour order was imposed. The total suspended term of imprisonment and the length of the good behaviour order was for 1 year 5 months and 9 days, to commence on 4 September 2023 and conclude on 12 February 2025.
The conditions of the good behaviour order included:
a)a core condition to not re-offend;
b)a probation condition to accept the supervision of the Commissioner of ACT Corrective Services or his delegate (Corrective Services) and obey all reasonable directions; and
c)a supervision condition to not consume cannabis, illicit drugs and prescription drugs not prescribed to him.
On 18 January 2024, Mr Guy appeared in the Supreme Court in relation to an alleged breach of the good behaviour order, with the breach proceeding being initiated on a report by Corrective Services on 4 December 2023. The details of the alleged breach at that stage are set out below at [16]-[21].
At that time, the Supreme Court provided Mr Guy with a further opportunity to engage with supervision. Mr Guy provided an explanation that illness had made it difficult for him to attend supervision appointments. He informed the Court of the work he had been doing with his father, as well as his contact with his daughter.
The matter was returned to the Supreme Court on 29 February 2024. On that occasion, Corrective Services provided a report that Mr Guy had been found suitable for a rehabilitation program, but that he was unable to commit to this due to work commitments. Mr Guy otherwise experienced mental and physical health issues that disrupted his ability to attend to supervision commitments. He was though continuing to engage in employment through his father, who is a cabinet maker and wardrobe fitter.
The matter then proceeded for the finalisation of the breach proceedings.
As at 22 April 2024, the information provided to the Court is that Mr Guy has attended most of his scheduled supervision appointments, and has otherwise provided medical certificates when he was unable to attend. He has been positive and compliant, and he demonstrated a willingness to comply with the terms of the order. His ability to do so though has been hampered by his health.
Concerningly, however, Mr Guy has had two positive results from urinalysis testing conducted on 14 March 2024 and 18 April 2024. These tests have confirmed the presence of methylamphetamine and amphetamine, and for the test on 18 April 2024, also for buprenorphine. Mr Guy has reported engaging with two sessions with SMART recovery and one with his counsellor through Directions in this time.
In addition to the information provided as to his compliance with supervision, the Court also received information that there was a further alleged breach of the good behaviour order. That is, on 12 April 2024, Mr Guy was located by police in a vehicle driven by his partner. The incident occurred at 11:25pm, amounting to a breach of a direction by Corrective Services to Mr Guy to reside at his property between the hours of 10:00pm each day and 5:00am next day.
Mr Guy was arrested and, after initially been in hospital due to ill health, he was granted bail by the Magistrates Court. Through his counsel, Mr Guy informs this Court that the circumstances of the alleged breach occurred when he had arranged for his partner to collect him from a friend’s house after he became ill and his partner was delayed in collecting him.
No proceeding has seemingly been commenced by Corrective Services with respect to this alleged breach and it is therefore not entirely clear that it is before this Court for determination. Regardless, it was agreed by the parties that this alleged breach was relevant to be considered as part of the current breach proceeding.
Breaching Conduct
Breach proceedings in respect to the good behaviour order have been formally initiated once.
On 4 December 2023, Mr Guy was alleged to have breached the good behaviour order in two respects:
a)By consumption of illicit drugs; and
b)By failing to notify a change of contact details.
As to the alleged drug use, on one occasion Mr Guy admitted use, and on another occasion, he did not declare the use of illicit substances, but testing resulted in findings of methamphetamine use. At the breach proceeding, through his counsel, Mr Guy admits that this breach occurred.
In relation to his contact details, Mr Guy had changed his residence but did not inform Corrective Services of this change for a period of some three weeks. He does not admit this breach. Through his counsel, Mr Guy provides that he was residing between his parents’ and his partner’s address and that he had informed his Corrective Services officer of this.
As at early December 2023, Mr Guy’s engagement with the community based order is described as being sporadic. There was a failure to engage with any services or interventions and Corrective Services formed the view that Mr Guy was rescheduling appointments to avoid illicit substance testing.
At that time, Corrective Services recommended that Mr Guy’s good behaviour order be extended by 6 months.
Consideration as to Breach
Pursuant to s 110 of the Sentence Administration Act, the court must, if satisfied that the offender has breached any of the good behaviour obligations, cancel the good behaviour order and either (a) impose the suspended sentence imposed for the offence; or (b) resentence the offender for the offence.
It is established that Mr Guy has breached his good behaviour obligations for use of illicit substances, as alleged during the breach proceeding on 4 December 2023.
It is unnecessary to determine if there was a breach of the obligations relating to the alleged failure to advise a change of address at that time, as well as the more recent alleged breach of a direction of a curfew, and the information as to illicit substances, in the circumstances. Section 110 of the Sentence Administration Act is enlivened on the substantiated breach above at [23] regardless. These other aspects of alleged non-compliance are instead informative as to the appropriate order to be made.
Section 110 having been enlivened, the factors that inform a determination as to whether to impose the suspended sentence or to resentence have been helpfully considered by Baker J in DPP v Hagen (No 2) [2023] ACTSC 386 at [19] as being:
a)The proportion of the good behaviour order served.
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b)Any rehabilitation attained prior to the breaching conduct.
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c)The nature of the offence which breached the order, including whether it is of similar conduct.
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d)The relative seriousness of the offence causing the breach (whether imposing the sentence would be disproportional to the gravity of the breach).
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e)The actual facts of the matter for which the offender was first sentenced.
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f)Whether the breach evinces an intention to disregard the obligation to be of good behaviour or to abandon any intention to be of good behaviour.
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g)Whether the offender had received any warnings with respect to breaches.
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h)The level of understanding of the offender of [their] obligations under the terms of the order and the consequences of a breach.
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i)The nature of judicial and community resources previously devoted to the offender.
…
The prosecution submitted that the lack of re-offending is such that imposition is not compelled. It was submitted that a difficult resentencing exercise arises, as Mr Guy has willingness to comply with the supervision, but he has apparent genuine health issues that pose a challenge for his compliance. The prosecution submitted that the Court must though be guarded as to the prospects of rehabilitation going forward.
On behalf of Mr Guy, it was submitted that there is a willingness to comply, including engagement and disclosures to Corrective Services, and engagement to address his health issues and drug use. It was submitted that there is merit in persevering with rehabilitation support for Mr Guy.
Nature and Circumstances of the Offending
The offending involves Mr Guy driving a stolen motor vehicle in the early hours of 15 August 2021. The vehicle had stolen number plates. There was no suggestion that Mr Guy had himself stolen the vehicle or the number plates. The charge of unlawful possession of stolen property relates to his possession of the vehicle he was driving. The value of the vehicle is not known but was “likely to be substantial”: R v Guy at [60].
Police attempted to intercept the vehicle and Mr Guy accelerated away. He reached speeds exceeding the posted speed limit by more than 30%. Thereafter, there were further occasions of police attempting to intercept the vehicle. Mr Guy’s driving including driving on to the incorrect side of the road and driving through a red light.
Police utilised tyre deflation devices which deflated the tyres of the vehicle. Mr Guy continued to drive, including through a red light, and to speed away from police. The vehicle began to lose traction, and then speed. He again drove onto the incorrect side of the road, mounted the road verge, hit a fence and came to a stop.
Mr Guy was pulled from the vehicle and taken to hospital due to a complaint of an injured back. A search of his backpack found numerous clip seal bags containing a total of 0.085 grams of methamphetamine. This was a “reasonably small” amount: R v Guy at [63].
Inside the vehicle, police located a silver gel blaster handgun. Mr Guy had no licence for possession of this firearm. The location where it was found was an insecure location.
At the time of the driving, Mr Guy was a disqualified driver. This was “likely to be contumelious driving”: R v Guy at [68].
As observed by Refshauge AJ in R v Guy at [35]-[69], the driving offending was a sustained episode with an intention to evade police. There were multiple forms of dangerous driving, albeit the high speeds and failing to stop for police established the elements of the offence. There were no passengers in the vehicle, with little other traffic given the time of the driving, but it did place police officers at risk. The driving was described by his Honour as “quite a serious offence, though not the most serious”: R v Guy at [50].
The firearm offending was described as being “not a particularly serious version of a very serious offence”: R v Guy at [57].
Subjective Circumstances
Mr Guy is now 28 years of age and he was aged 26 at the time of the offending.
As already observed, he has struggled with drug dependency for an extended period.
His subjective features are otherwise set out in detail in R v Guy at [70]-[93] and in R v Guy (No 2).
Determination
Mr Guy has had multiple opportunities to engage with community based orders. He has not, to an entirely satisfactory level, done so. He has attended scheduled supervision appointments when well enough to do so, but his attendance could not be described as enthusiastic. Throughout the periods of supervision, he has engaged with rehabilitation programs to varying extents, with some successful completions and some unsuccessful outcomes.
At the time the breach was alleged by Corrective Services in December 2023, the recommendation was for an extension of the good behaviour order. There has been no update to that recommendation, given the period of time that supervision has, sporadically, continued. In the circumstances, I place little weight on that recommendation and will focus on the information available to the Court at the time of the breach proceeding. The most recent information from Corrective Services emphasised that any benefits from continued supervision would be dependent on Mr Guy’s compliance.
A urinalysis test in November 2023 was negative for illicit substances. More recently, there have been testing results that are positive for illicit substances, but also for buprenorphine, which is prescribed to him. Mr Guy’s engagement with a pharmacotherapy program is confirmed by his general practitioner.
Importantly, and as already observed, he has not re-offended since August 2021, a period of some 2 years and 8 months. Prior to this, Mr Guy’s criminal history includes previous occasions of driving and minor drug offending in February and May 2020, serious driving offending in May 2018 and minor drug offending in August and September 2017. Between 2013 and 2017, Mr Guy was sentenced for driving offences and minor offences of damaging property, theft and drug possession.
This history is consistent with Mr Guy’s long-standing illicit substance abuse and does suggest that caution must be had as to whether long-standing rehabilitation, and an ability not to reoffend, has been achieved. But it remains that there has been a lengthy period without re-offending and to disrupt that by a return to custody at this time would be detrimental not only to Mr Guy, but ultimately to the community.
This is particularly so given Mr Guy’s otherwise positive progress towards rehabilitation. Mr Guy appears to have taken personal responsibility to address his illicit substance abuse problem and has had some progress with abstinence. He is engaging regularly with his general practitioner who is assisting him with his mental and physical health challenges.
At this point, continued supervision of Mr Guy seems only to amount to a drain on the scarce resources of Corrective Services to little benefit. Rather, a sentence order that provides a form of incentive to continue without re-offending, while also providing adequate punishment and accountability is more appropriate. The individual sentences, and their totality, is also relevant.
Sentence orders that involve suspended imprisonment terms, where no penalty other than imprisonment is appropriate, and sentence orders that involve fines where appropriate, are the orders that will best reflect the purposes of sentencing at this time.
These will include fine orders that are substantial, to reflect the seriousness of the original offending, and to meet punishment, accountability and deterrence. They will be of a level to deflect any expectation that failing to engage in supervision can result in an outcome that results in a lesser punishment. It does not and should not.
In determining the appropriate sentences, I have also had regard to the period of time that Mr Guy has spent engaged with residential rehabilitation, this being a period of 102 days. There have otherwise been periods of compliance with the previous court orders that amounts to a form of partial serving of those orders. Further, Mr Guy has also spent a total of 112 days in pre-sentence custody as at the time of the resentencing exercise. These periods have informed the appropriate orders to be made.
I am satisfied in respect to the aggravated dangerous driving offending and the unauthorised possession of a firearm offence that, having considered possible alternatives, no penalty other than imprisonment is appropriate.
In relation to the aggravated driving offence, the information provided to the Court is that there was a plea of guilty at a relatively early stage following negotiations between the parties. In R v Guy at [117], it was said that a brief of evidence had been prepared. A discount in the range of 20% is appropriate.
As to the firearm charge, a plea of guilty was entered at the sentencing stage, but this followed a plea of guilty to an initially erroneously laid charge. In the circumstances, there was significant utilitarian value to the plea of guilty and a discount of 25% is appropriate.
The terms of imprisonment will be suspended with periods of good behaviour to incentivise continued lack of offending. A distinction between the orders to be made today and those made on the previous sentences is that there will not be a supervision or probation condition as additional conditions in the good behaviour order.
This is not to say that Corrective Services will not have a level of oversight of Mr Guy. The core conditions of the orders provide that he must still inform as to any changes of contact information and comply with any direction given to him. Importantly, he must also not commit an offence that is punishable by imprisonment: s 86 of the Sentence Administration Act.
In essence, Mr Guy will be responsible for his own supervision. He will have a significant incentive to comply. In addition to the risk of imprisonment from breaching the orders if he re-offends or fails to comply with the core conditions, if Mr Guy defaults on the fine payments, he faces the potential for consequences with the road transport authority, financial redirection or deduction orders, property seizure orders, community work orders, or imprisonment: Pt 6A.2 of the Sentence Administration Act.
Orders
55. For those reasons the following orders are made:
(1)The Good Behaviour Order dated 4 September 2023 is cancelled.
(2)The conviction of Dillon Matthew Guy of aggravated dangerous driving as a repeat offender (CAN 10596/2021) is confirmed and a sentence of 12 months imprisonment is imposed to commence on 23 October 2023 and expire on 22 October 2024. The disqualification period associated with this offence is noted as served.
(3)The conviction of Dillon Matthew Guy of unauthorised possession of a firearm (SC CAN 24/2022) is confirmed and a sentence of 4 months imprisonment is imposed to commence on 23 October 2023 and expire on 22 February 2024.
(4)The conviction of Dillon Matthew Guy of unlawful possession of stolen property (CAN 11224/2021) is confirmed and a fine of $3,000.00 is imposed to be paid within 6 months from today, 23 April 2024, by 22 October 2024.
(5)The conviction of Dillon Matthew Guy of possessing a drug of dependence (CAN 8523/2021) is confirmed and a fine of $1,000.00 is imposed to be paid within 6 months from today, 23 April 2024, by 22 October 2024.
(6)The conviction of driving whilst disqualified as a repeat offender (CAN 9179/2021) is confirmed and a fine of $4,000.00 is imposed to be paid within 6 months from today, 23 April 2024, by 22 October 2024. The disqualification period associated with this offence is noted as served.
(7)The total term of imprisonment is 12 months, commencing on 23 October 2023 expiring on 22 October 2024.
(8)The sentence of 12 months imprisonment is suspended from today, 23 April 2024, to 22 October 2024.
(9)Dillion Matthew Guy is required to sign an undertaking to comply with the good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months from today, 23 April 2024, to 22 April 2025.
| I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen Associate: Date: |
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