R v Halligan (No 2)
[2010] VSC 232
•26 MAY 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. S CR 2008 1715
| THE QUEEN |
| v |
| ASHLEY DANIEL HALLIGAN |
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JUDGE: | HARPER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 26 MAY 2010 | |
DATE OF SENTENCE: | 26 MAY 2010 | |
CASE MAY BE CITED AS: | R v HALLIGAN (No 2) | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 232 | |
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CRIMINAL LAW – Breach of community based order – Failure to adduce any explanation for failure to comply – Part performance - Re-sentencing on original charge of robbery – Offender sentenced to imprisonment for 12 months with a non-parole period of six months – Sentencing Act 1991, s.47.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms A Hassan | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Defendant | Dr T Sullivan | Dowling McGregor Pty Ltd |
HIS HONOUR:
Following a plea of guilty to a charge of robbery you, Ashley Halligan, were on 24 July 2008 sentenced to undergo a community-based order for a period of 18 months. Before that sentence was pronounced, your counsel had during the course of a plea of mitigation on your behalf submitted that a non-custodial sentence was appropriate, given in particular, your youth, the plea of guilty, and your undertaking to give evidence, if required, against your co-accused.
As I have just heard, you did fulfil that undertaking to the extent that you gave evidence against co-accused at their committal. You were not further required to give any evidence against them, as each pleaded guilty to relevant charges, and so no trial was necessary. Accordingly, you have discharged your undertaking, and I will take that fact into account in your favour.
The offence to which you pleaded guilty, and in respect of which the community-based order was imposed, was a serious one. It was for a robbery which took place in circumstances which involved a savage assault on a young man late at night, when he was walking home, having caught the last train to Sunshine. It was accompanied by an attack involving a number of people, of whom you were one. Your involvement was less than some of the others, but nevertheless significant. You hit the victim in the face with his shoe.
Another significant fact is that you had previously witnessed - although you had not been an active participant in - a similar attack some hours earlier that evening on another individual male who again was walking home after work and who, as a result of the attack upon him, was killed.
Several people were subsequently charged with his murder. You were not charged with any offence in relation to that incident, but you were aware that the incident had taken place because you were a spectator. Despite this, and therefore in the knowledge that the group of which you were a member had already demonstrated a capacity for and willingness to be involved in acts of violence against innocent pedestrians, you participated actively in the second assault that evening.
I take into account in deciding what disposition is appropriate in the present circumstances that, before the community-based order was made, you were assessed by Matthew Pearce, a Corrections Officer, as being suitable for it. He came to this conclusion after having discussed with you the unpaid community work which would be required of you pursuant to the order, and having been told by you that you understood that requirement.
You did not report to him or any other relevant person any pre-existing problems which either would prevent you from performing your obligations under the community-based order or which should be considered before a placement pursuant to that order was made. The relevant rules and regulations associated with a community-based order were explained to you, and you demonstrated that you understood them and also that you understood the consequences of non-compliance.
You then consented to the order being made; and so it was made, on 24 July 2008. After it was made, you attended an induction program during which the relevant rules and regulations were again explained to you. Again you indicated your understanding of them, on this occasion by signing the appropriate documentation - having previously signed the relevant paperwork in relation to the order itself.
Despite all that, and despite the application for mercy made on your behalf by your counsel on your plea, you breached the community-based order for the first time on 7 January 2009, less than six months after it was made. You failed on that occasion to attend supervision as directed. You then gave the excuse that you had forgotten.
On 3 June, some months later, you failed again to attend for supervision and, as on the previous occasion, you failed to give a valid reason for your non-attendance.
On twelve other occasions you were absent when required to attend either for supervision or for community work. On none of those occasions did you give a valid reason for your non-attendance. The last occasion on which you failed to attend was 27 July 2009. You then lost contact with the Community Corrections Service altogether. You have not given any excuse for that failure to make contact since July last year.
There can, in my opinion, be only one conclusion to be drawn from these failures. You have demonstrated what lawyers would say was a contumelious - that is a very serious, and inexcusable - indeed almost total - disregard for your obligations under the community-based order. The order was made so as to give you a chance to demonstrate that, as had been submitted on your behalf on the plea, you were indeed remorseful for the criminality which you had displayed in gross fashion on 23 January 2008.
Instead, you have demonstrated that the submission was without substance. You have, rather, demonstrated an almost complete lack of commitment to the requirements of the order. Nevertheless, you now seek, in effect, to be excused from your failure.
It has been put on your behalf that, during the period after your sentence on 24 July 2008, you did succeed in achieving some milestones in your career. In particular you successfully completed a number of courses in the VCE program; and I accept that you now have your VCE, although no certificate has been produced to the Court. I also accept that you made serious attempts to obtain employment during the period following your sentence in July 2008, that you had difficulties in maintaining employment partly because of the requirements of your VCE studies but also because of your criminal record. I also accept, of course, that apart from the offence committed by your disobedience to the community-based order, you have not otherwise committed any offence since you were sentenced.
These matters, however, go more towards the consequences of the breach of the order itself and whether or not I should impose upon you a fine of the kind which is contemplated by the relevant legislation when a community-based order is breached.
Given the considerations to which I have just referred I do not intend to impose a fine upon you for your breach of the order and in respect of the offence constituted by that breach. Nevertheless, the legislation provides that a breach of a community-based order has other possible consequences. If on the hearing of a charge of breach of such an order the Court finds the offender guilty of that offence, then the Court may deal with the offender for the original offence in any manner in which the Court could have dealt with him or her if the Court had just found the offender guilty of that original offence.
The position then is that I am empowered to deal with you for the robbery as if you had just been found guilty of it. Your counsel has put on your behalf a submission to the effect that I should impose a further community-based order upon you.
In deciding whether or not to accept that submission, I have had regard to the matters to which I have already referred, and also the report which the relevant community corrections officers have prepared, and which was presented to me this morning. That report is dated 18 March 2010.
Amongst other things the report refers to your failure to comply with the order, gives details of that failure, and also gives some further background. You reported to the corrections officers that you were happy that the problem associated with your giving evidence against your co-accused was, by March this year, over, but you said that you were under immense stress following the knowledge of your partner's pregnancy. It is now submitted that that pregnancy is one reason why a further community-based order should be imposed.
In considering that submission I have very great sympathy for your partner. I also have sympathy for you to the extent that you will not be able - if a term of imprisonment is imposed - to be with your partner when your child is born; and you will not be in a position to support the child, or her, in the period immediately after the birth of your child.
On the other hand, if the stress of the knowledge of the pregnancy was an excuse for your failure to comply with the requirements of the community-based order, then it is difficult to see how that pressure would be decreased once the baby was born. It therefore looms as a reason why you might in the future say that you did not obey a fresh order because of the pressures involved in parenthood.
Indeed, the history of your conduct since your sentence indicates that there is very little reason to be confident that any undertaking presently given to comply with a fresh community-based order would be fulfilled. It is true that you completed 48 and a half hours of community work pursuant to the original order. It is also true that in the 18 months allowed to complete the 150 hours of community work required, you failed to complete 101 and a half hours. That seems to me to be another indication of your dismal failure to make any real attempt to comply with the requirements of the order.
I also take into account the fact that after July last year you lost contact, or failed to renew contact, with your community corrections officers. That, in my view, is an inexcusable failure on your part. The corrections officers are in a position to assist a person subject to a community-based order to comply with the requirements of that order. They are not draconian in the exercise of their powers unless compelled to be so. Thus, it was not until you had failed on 14 occasions to attend when required, that any action at all was taken to bring your failure to the attention of the Court.
In other words, the community corrections officers bent over backwards to ensure that you did not come to the notice of the Court, despite your failure to obey the order. It was only when they lost contact with you after July 2009 that the action which brings you before the Court today was instituted.
In all these circumstances, I have, in my opinion, no option but to deal with you as if the robbery was an offence for which you had just been found guilty, and to sentence you to a term of imprisonment.
The maximum penalty for robbery is 15 years. I of course take into account the matters which I took into account in July 2008: these include your youth, your proportionate lack of involvement in the second incident, and your position as merely a spectator in relation to the first, your plea of guilty to the charge of robbery, and your undertaking to give evidence against your co-accused, an undertaking which you have fulfilled.
Given all those factors, and weighing them in your favour, it seems to me that an appropriate sentence would be one of 12 months' imprisonment. I direct that you serve six months of that period before becoming eligible for parole.
Is there anything further required?
MS HASSAN: No, there has been no pre-sentence detention in this matter, Your Honour.
DR SULLIVAN: No, Your Honour.
HIS HONOUR: I am indebted to counsel for their assistance. Mr Halligan may now be removed.
DR SULLIVAN: Perhaps there is one matter, Your Honour. I wish to apologise and this is to ensure that Your Honour is not in error.
HIS HONOUR: Be seated again, Mr Halligan.
DR SULLIVAN: Sorry, my learned friend mentioned that he had given evidence and that I pointed out obviously what the flow is, particularly giving evidence, it is a reasonable inference that he would have to be in protection. Now, I have some difficulty in the sense that I say it is the reasonable inference of his giving evidence and they are in the penal system, that he would have to be in protection. Of course, if that is the case, that would be more burdensome than if he was not in protection.
HIS HONOUR: Well - - -
DR SULLIVAN: Sorry, I just mention that because it was mentioned at the outset, before Your Honour gave your sentencing and I am not sure what Your Honour's view was of that submission and it was not reflected in the sentencing comments that Your Honour has just made.
HIS HONOUR: No. Thank you for reminding me of that. In fact, I had decided, before I was told about the likelihood that you, Mr Halligan, would be placed in protective custody, to impose a sentence of 14 months. I have reduced that to 12, by reason of the fact that you probably will be in protective custody for the time that you remain in gaol.
Thank you for that reminder. Yes, thank you. If there is nothing else required, I will adjourn the court sine die.
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