R v Hagen (No 2)
[2021] ACTSC 260
•12 October 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Hagen (No 2) |
Citation: | [2021] ACTSC 260 |
Hearing Date: | 12 October 2021 |
DecisionDate: | 12 October 2021 |
Before: | Elkaim J |
Decision: | See [23] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Breach of Good Behaviour Order – re-sentence |
Cases Cited | R v Hagen [2020] ACTSC 337 |
Parties: | The Queen ( Crown) Jordan Anthony Robert Hagen ( Offender) |
Representation: | Counsel M Dyason ( Crown) J Robertson ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) JDR Law ( Offender) | |
File Numbers: | SCC 302 of 2019; SCC 304 of 2019; SCC 305 of 2019 |
ELKAIM J:
On 16 November 2020 Mr Hagen appeared before Burns J for sentencing in respect of a number of offences. Quoting from the sentencing reasons (R v Hagen [2020] ACTSC 337), this is the way his Honour proceeded:
11.For the offence of attempting to dishonestly drive a motor vehicle on 8 July 2019
(CAN 7695/19), you will be sentenced to 12 months’ imprisonment, commencing on
16 August 2020 and expiring on 15 August 2021.
12.For the offence of aggravated reckless driving on 8 January 2019 (CC 765/19), you are sentenced to 10 months’ imprisonment, which I have reduced from 12 months because of your plea of guilty, commencing on 16 January 2021 and expiring on
15 November 2021.
13.With regard to each of the offences of failing to stop a motor vehicle for police
(CAN 759/19), driving unlicensed (CAN 761/19), driving unregistered (CAN 762/19) and using an uninsured motor vehicle on 8 January 2019 (CAN 763/19), there will be a Good Behaviour Order for a period of eight months from today, 16 November 2020.
14.With regard to each of the charges of resisting a public official in the exercise of their function (CAN 7697/19; CAN 7696/19), in each matter there will be a sentence of
one month’s imprisonment which will commence on 16 August 2020 and expire on
15 September 2020.
15.I have imposed effectively aggregate sentences of imprisonment from 16 August 2020 until 15 November 2021. The period from 16 August 2020 until yesterday,
15 November 2020, is to be served by way of full-time imprisonment.
16.The balance will be suspended with a Good Behaviour Order for a period of 18 months from today, 16 November 2020, with conditions that:
a) you are to accept the supervision of the Director-General or that person’s delegate for that period of 18 months or such lesser period as deemed appropriate by your supervising officer;
b) second, you are to reside as directed by your supervising officer; and
c) third, you are to undertake such assessments, counselling or treatment as directed by the Director-General or that person’s delegate, particularly with relation to avoiding the relapse into illicit drug use.
17.You are to report to ACT Community Corrections at Level 1, 249 London Circuit within 48 hours of entering into that order.
Mr Hagen is before me today because it is alleged that he breached the terms of the Good Behaviour Order. It was alleged that he failed to comply with supervision and assessment, counselling and treatment conditions set by the Director General of ACT Corrective Services.
Mr Hagen concedes the breaches. The specific breaches are set out in the affidavit of Mila Francis affirmed on 26 March 2021. Importantly they do not include offences committed this year and to which the offender has pleaded guilty in the Magistrates Court.
Mr Hagen was arrested on 22 March 2021 for committing the fresh offences. He was released on bail on 28 April 2021. However on 21 May 2021 he was taken back into custody after allegedly committing further offences. He has since pleaded guilty to these offences in the Magistrates Court, but is yet to be sentenced.
The parties agreed that any sentences that I imposed should be backdated to 3 May 2021.
Technically the recent offences are also breaches of Burns J’s sentences. However I was informed that until they are dealt with in the Magistrates Court they cannot form part of the breaches being dealt with today. I raised with the parties the consequence that the offender would have to come back to the Supreme Court again for further breaches to be dealt with.
Both parties agreed that this necessity would be overcome if I were to impose the whole of the suspended sentences that are outstanding. This was agreed to be 364 days. The only difference between the parties was that the Crown said the sentences should be reimposed while Mr Robertson, on behalf of Mr Hagen, suggested the same sentences be imposed but with the addition of a non-parole period. This was to achieve two purposes:
(a)To enhance the offender’s prospects of rehabilitation.
(b)To allow the Magistrate when sentencing Mr Hagen for the outstanding offences to reset the non-parole period, without the complication of existing supervision orders.
In respect of the breaches, Mr Hagen has effectively ignored reporting conditions by either not attending appointments or being late. Testing also revealed the presence of drugs he should not be taking. He has not participated in drug and alcohol treatment as directed.
It is notable that the progress in respect of drug use highlighted by Burns J at [8] of his reasons seems to have dissipated.
As already stated Mr Hagen has acknowledged the breaches of the GBO. This is to his credit.
There is an up-to-date Pre-Sentence Report and also two references provided on behalf of Mr Hagen. The first reference, from Mr Cottle, says that the offender will have employment in his carpentry business upon his release. The second reference, from Ms Burgess talks of the offender’s employment prospects. The reference is weakened by the fact that it is apparently made in support of the offender obtaining employment. It does not seem to acknowledge his criminal conduct.
The Pre-Sentence Report does not read well for Mr Hagen. The assessor stated:
Consistent with previous engagement, Mr Hagen’s presentation on 10 September 2021 and response to email correspondence on 7 October 2021 reflects his disinterest in meaningful engagement with his Service. When questioned about his apparent anti-social lifestyle, he minimised his involvement in the justice system and stated he does not view his lifestyle as anti-social….
Mr Hagen has been assessed as high risk of general re-offending with his primary risks relating to his extensive offending history, unemployment, involvement with anti-social influences, lack of pro-social peers, drug abuse history and anti-social attitudes.
The report says that Mr Hagen is not suitable for an Intensive Correction Order.
I have also been provided with an email from Mr Hagen’s mother, Ms Trinity Lee Hagen. Ms Hagen is herself currently an inmate at the AMC. She provides a background which goes some way to explaining her son’s current predicament.
Ms Hagen describes her father as a criminal but yet a gentleman and she gives some insight into the family background and its involvement in crime. She says that:
…… My son has always stuck to the CRIMINAL CODE, he has taken the rap for his mates at times and as the same as my dad did, even done time…..
But what really hurts me and causes me sick at the heart is the thought of my boys going down the same track as my father, it hasn’t been hard raising them and even though I haven’t made the right choice in partners over the years, the one TRUE LOVE was Jordan’s father…. who was killed tragically on the Nicklin Highway…
I want you to know that my son is still so young and still has a whole life ahead of him, I don’t want to watch him go down the same track as my father, he is a young boy with many talents and his biggest downfall is girls….
Please give my son a reason to want to move on in life and a chance to show this to not only you but to the wider community and all those who have ever doubted him.
Although the email is long and wanders frequently from its intended subject matter, I nevertheless regard it as a plea from a mother expressing her hopes for her son to lead a better life and a productive life in the community.
The difficulty in this case is to find reasons for leniency. Of course I take into account the pleas of guilty, the offender’s background and his relative youth. The problem is that supervising him in the community does not seem to work. The only current means of controlling his behaviour seems to be keeping him in prison. That of course is an option which is contrary to basic principles of rehabilitation to a non-custodial life.
Ultimately I think the approach of both parties is sound and I will adopt it. In respect of the difference between them, effectively the imposition of a non-parole period, I intend to follow the suggestion of Mr Robertson. As he points out, even though the overall period of imprisonment is just less than 12 months, that is not a bar to imposing a non-parole period.
Normally a non-parole period would not exceed 70% of the whole term of imprisonment. In this case however, while a non-parole period is designed to assist rehabilitation, I think it should be longer than 70% for the reasons I have given above. I think nine months will be appropriate.
The consequence of this approach is that I am re-sentencing the offender and not simply reimposing the suspended sentences. In addition, in order to achieve the same effective result as to the terms of imprisonment imposed by Burns J, I will make all of the sentences concurrent. This results in an overall term of imprisonment of 364 days which is equal to the combined terms of the suspended sentences.
In the re-sentencing I adopt the background and factual descriptions given by Burns J.
The GBO arising from charges, CAN 7695/19 (attempt ride/drive motor vehicle without consent), CC 765/19 (aggravated furious, reckless, dangerous driving), CAN 7696/19 (resist territory public official) and CAN 7697/19 (resist territory public official) must now be cancelled and the offender be re-sentenced, or the suspended sentence be imposed.
I make the following orders:
(i)I cancel the Good Behaviour Order and re-sentence as follows.
(ii)For the offence of attempting to ride/drive a motor vehicle without consent (CAN 7695/19) the offender is sentenced to 364 days imprisonment commencing on 3 May 2021 and ending on 1 May 2022.
(iii)For the offence of aggravated furious, reckless, dangerous driving (CC 765/19) the offender is sentenced to 10 months’ imprisonment commencing on 3 May 2021 and ending on 2 March 2022.
(iv)For the offence of resisting a public official (CAN 7696/19) the offender is sentenced to imprisonment for 1 month commencing on 3 May 2021 and ending on 2 June 2021.
(v)For the offence of resisting a public official (CAN 7697/19) the offender is sentenced to imprisonment for 1 month commencing on 3 May 2021 and ending on 2 June 2021
(vi)The total period of imprisonment is 364 days. A non-parole period of 9 months is set commencing on 3 May 2021 and ending on 2 February 2022.
(vii)I take no further action on the following charges: CAN 759, CAN 761, CAN 762 and CAN 763 all of 2019.
| I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: |
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