R v Hart

[2017] ACTSC 319

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Hart

Citation:

[2017] ACTSC 319

Hearing Dates:

3 August; 19 October 2017

DecisionDate:

19 October 2017

Before:

Penfold J

Decision:

See [22] – [24] below.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – second re-sentence for aggravated robbery – no further offending – failure to complete periodic detention – significant leniency in first re-sentence – removal of periodic detention requirement but re-imposition of significant community service obligation – current breach  of good behaviour order constituted by failing to perform all required community service – non-attendance for community service due to physical health problems – offender working full-time as skip delivery driver – employed by mother – whether part of offender’s wage could be paid to charity as alternative to performing community service – whether offender should serve outstanding sentence in full-time custody – offender given last opportunity to complete community service – period for completing community service extended.

STATUTES – Acts of Parliament – Interpretation – Crimes (Sentencing) Act 2005 (ACT) – suspended sentence – good behaviour order required for “the period during which the sentence is suspended or for any longer period” – period during which the sentence is suspended must be at least the length of the outstanding term of the sentence – no scope for serving a suspended sentence by good behaviour for less than the outstanding term of the sentence.

Legislation Cited:

Crimes (Sentence Administration) Act 2005 (ACT)

Crimes (Sentencing) Act 2005 (ACT), ss 12, 12(2), 12(3)

Parties:

The Queen (Crown)

Justin Hart (Offender)

Representation:

Counsel

Mr M Thomas; Mr J Walker (Crown)

Mr J Hart (in person) (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Unrepresented (Offender)

File Number:

SCC 84 of 2011

The offence

1. On 2 February 2016, Justin Hart was re-sentenced by Refshauge J for an aggravated robbery committed in August 2010.  He had originally been sentenced on, a plea of guilty, by Refshauge J in December 2012, at which point he received a prison sentence of 3 years 7 months.  After minor corrections, that sentence required the first two years to be served by periodic detention, followed by 350 hours of community service to be completed in the following two years.

1. Periodic detention quickly became problematic due to health problems rendering Mr Hart unable to perform physical labour.  By August 2013 he had been able to perform only about six months’ worth of periodic detention, and he was referred back to the Supreme Court for re-sentencing.  At some point during the re-sentencing process he failed to appear on several occasions, and Refshauge J issued a warrant for his arrest.

1. By the end of 2013, Mr Hart, fearing he would be sent to prison, had relocated to Melbourne, where he formed a new relationship and found himself, in Refshauge J's words, “somewhat a surrogate father” to some of his new partner's five children (R v Hart [2016] ACTSC 16 at [24]).

1. In October…