R v Hart
[2017] ACTSC 319
•19 October 2017
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
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.
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.
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]).
In October 2015, he returned to Canberra of his own volition and surrendered to police. He had committed no further offences since the 2010 robbery.
Mr Hart was remanded in custody, where he spent 106 days before the February 2016 re-sentencing. Refshauge J again imposed the sentence of three years and seven months, backdated to 23 April 2015 to take account of roughly nine and a half months served by way of periodic detention and time in custody before the re-sentencing, leaving just under 34 months still to be served, which was suspended with a two-year good behaviour order with a supervision condition and, again, a condition requiring Mr Hart to complete 350 hours of community service within the two-year period. That is, Mr Hart's sentence had by that stage been reduced by the removal of the requirement to serve a further 14 months-odd as periodic detention.
The two-year good behaviour order, in my view, did not comply with the requirements of s 12 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), given that it related to the suspension of an outstanding period of 34 months. It is fair to say that the reference in s 12(3) of the Sentencing Act to making a good behaviour order "for the period during which the sentence is suspended" could be read as referring not to that portion of the sentence that is to be suspended but to a period for which the obligation to serve that outstanding term in full-time custody is suspended (although it is not clear what, on such a reading, would be the impact of such a suspension).
However, having regard to the reference in s 12(2) to "suspending all or part of the sentence of imprisonment", I am satisfied that s 12, read as a whole, requires that a good behaviour order made under s 12(3) must be for at least the length of the outstanding part of the sentence (that is, the part that is suspended), and that the outstanding term of the sentence cannot be suspended for a period less than that outstanding term.
Be that as it may, Mr Hart began the period of his good behaviour order reasonably well, and by November 2016 he had attended on 21 occasions and completed 123 hours of community service to a satisfactory standard. On the other hand, I note that he had also failed to attend community service as directed on 6 occasions without letting his supervisor know, and had also produced medical certificates explaining 8 other absences. Between November 2016 and February 2017, he produced 10 further medical certificates explaining his inability to attend community service. Mr Hart also provided a medical certificate stating that he was unable to do community service work between 10 February and 20 June 2017 due to suffering double vision. After the end of that period, he failed to turn up to community service on 4 more occasions before the breach of good behaviour order affidavit was sworn on 21 July 2017.
Evidence
As well as the affidavit setting out details of the good behaviour order breach, I have before me:
(a)an updated pre-sentence report, which builds on the January 2016 pre‑sentence report prepared for the earlier sentence by Refshauge J; and
(b)a letter from Mr Hart's mother, who is also his employer, about his current employment arrangements and other matters.
Subjective circumstances
Mr Hart is now 39 years old. His criminal history in the ACT before the aggravated robbery was relatively insignificant, involving two common assaults, a Level 2 drink‑driving offence and several traffic offences.
He now seems to be living in the ACT again, and it is not clear from the updated pre‑sentence report whether his personal circumstances have changed in other respects from those reported in February 2016.
Mr Hart is reported to be working as a skip bin delivery driver Mondays to Saturdays from around 6.30 am to 5.30 pm and earning an adequate wage. This is said to reflect some improvement in his health, presumably in particular the double vision, although he explained before me that there were still some difficulties with the work he has been offered as community service due to ongoing back problems. The pre-sentence report author noted that Mr Hart's answers to an alcohol use assessment test suggested his alcohol use is at a risky level, and he may benefit from alcohol-related counselling.
The letter from Mr Hart's mother, as noted, explained that Mr Hart works for her company which delivers and collects skip bins six days a week. She notes that the business does not always work the six days, but she expects her employees to be available, presumably on the basis that this will make it difficult for Mr Hart to complete his community service. She suggested that instead she should dock Mr Hart's pay each week, by an amount representing eight hours pay, and make an equivalent donation to a charity nominated by the Court.
I can understand why Mr Hart's mother might suggest such an alternative, but I am not convinced that it is an appropriate option.
First, it would be invidious for the Court to have to choose a charity.
Secondly, it is not clear how such an order could be monitored or enforced by Corrective Services and, of course, there is always a risk that Mr Hart's health will fail him again, which would presumably end his mother's ability to deduct eight hours pay from his wages each week. It would not be appropriate, in my view, for Mr Hart's offending to be expiated by charitable donations that might turn out to be made by his mother from her own or the business's funds.
Next, the tax implications of such a proposal are unclear, to say the least; for instance, would Mr Hart still declare the eight hours pay deducted as part of his taxable income, and who would receive the benefit of any tax deduction associated with the charitable donation? As well, of course, given the relationship between Mr Hart and his employer, it would not be clear that the proposed scheme would actually impose any hardship on Mr Hart at all.
Finally, if the 2010 offence was appropriately dealt with by a financial penalty, that could have been imposed a long time ago. The problem is that this aggravated robbery is not clearly such an offence.
Other sentencing considerations
Mr Hart has been given significant leniency since the very beginning of this sentencing process; the original sentence was on the lenient side, especially as regards how it was to be served. Since then, he has been excused 14 months of periodic detention due to earlier health problems. It seems to me that the time has come for Mr Hart to finally accept the obligation to complete his sentence one way or another.
While his health appears to be relatively good, he needs to get on with his community service and complete the outstanding 227 hours (roughly 28 more days). The opportunity given last year by Refshauge J was a remarkably generous opportunity to complete what would otherwise be up to 34 months of full-time custody – if completing the community service cannot be managed, then Mr Hart might have to serve some further full-time custody with the prospect of release on parole in due course.
After discussing these options in Court, Mr Hart suggested that an extension of his good behaviour order to allow him to complete the community service hours at a rate of one day per fortnight, rather than weekly, would be helpful, and the prosecutor did not object to this proposal.
Sentence
Mr Hart, please stand. I note the conviction entered by Refshauge J for the 2010 aggravated robbery. I find that the good behaviour order made in 2016 has been breached by a failure to comply with the community service condition and, accordingly, I cancel that good behaviour order under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT).
I now re-sentence you for the aggravated robbery to imprisonment for 3 years and 7 months, backdated to 19 October 2016 to take account of periodic detention actually served, time in pre-sentence custody, and the 123 hours of community service that you have so far completed, so the sentence will now run until 18 May 2020.
The remainder of the sentence, 2 years and 7 months, is immediately suspended, and I now order you to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act for 2 years and 7 months.
The good behaviour order is subject to the conditions:
(a)that for such period not exceeding 2 years as Corrective Services consider necessary, you accept the supervision of ACT Corrective Services, and obey all reasonable directions of the Director-General, or her delegate, and you undertake such counselling, courses, programs or treatments as directed by the supervising officer;
(b)that before 19 August 2019 (a period of 22 months) you complete 227 hours of community service; and
(c)finally, that on or before close of business tomorrow, 20 October 2017, you attend Corrective Services (which is now at Level 1, 249 London Circuit) to arrange your supervision.
You will be given a written copy of the good behaviour order and it will be read to you by the court officials, but in short, as you know, and you have had this order made before now, it means that for the next 2 years and 7 months you need to keep out of trouble, keep in contact with Corrective Services and perform the community service, given that the order now is only 227 hours. If you commit another offence during that time, or if you otherwise breach the undertaking, you will find yourself almost certainly back before the Court yet again, and I suspect next time, depending on exactly how the undertaking has been breached, you might find that you've exhausted the Court's sympathy, and you could find yourself serving some or all of the remaining part of this sentence in full-time custody.
If you have any detailed questions about that, you could ask the court officials.
You may sit down.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Date: 2 November 2017 |
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