R v HN
[2019] ACTSC 375
•12 August 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v HN |
Citation: | [2019] ACTSC 375 |
Hearing Date: | 12 August 2019 |
DecisionDate: | 12 August 2019 |
Before: | Burns J |
Decision: | See [11]–[15] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Resentence – breach of Good Behaviour Order – breach of different nature and gravity to original offence – relevance of offender’s consumption of alcohol |
Parties: | The Queen (Crown) HN (Offender) |
Representation: | Counsel V Conliffe (Crown) B Dunne (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number(s): | SCC 356 of 2011; SCC 323 of 2011 |
BURNS J:
HN, you appear before me today with regard to a breach of a sentence which I imposed on 15 November 2012 for an offence of intentionally inflicting grievous bodily harm
[XO 15/11] on 1 June 2011. I imposed a sentence of six years' imprisonment which, in combination with other sentences that I imposed at the time, resulted in an aggregate sentence of seven years' imprisonment, commencing on 2 June 2011 and expiring on 1 June 2018.
At that time, you were a juvenile. Due to your status as a juvenile, I could not make a parole order, and as such I made an order suspending the sentence after the minimum period that I considered appropriate. I ordered that the sentence for the offence of intentionally inflicting grievous bodily harm be suspended as at 2 January 2015 with certain conditions that are set out in that Order.
On 19 February 2017, you committed an offence of assault. You were dealt with on
30 June 2017 in the ACT Magistrates Court. A conviction was recorded, and you were placed on a Good Behaviour Order for a period of nine months with certain conditions which were largely directed towards your rehabilitation and to giving you an understanding of the significance of domestic violence offences.
Subsequently, on 5 August 2018, you committed further offences of driving while suspended and driving a motor vehicle with alcohol in your blood. With regard to each of those offences you were convicted and fined. It is as a result of the commission of those offences that you appear before me today to be dealt with on a breach of the Orders which I made on 15 November 2012.
It is certainly a matter of great concern, as emphasised by the Prosecutor, that the common thread with respect to all of these offences appears to have been that you had been consuming alcohol. Indeed, the Pre-Sentence Report suggests that until not long before you were remanded in custody, you had been consuming alcohol at quite dangerous levels.
I accept that you have been under a degree of personal stress. Also, you work in an environment and an industry in which the consumption of alcohol, and indeed heavy consumption of alcohol, is quite frequent. You have to gain an understanding of the fact that when you consume alcohol, and particularly large amounts of alcohol, it appears to affect your judgement such that you are more prone to committing offences against the laws of this country when you are intoxicated.
Now, that means being aware that you cannot rely upon being affected by alcohol as in some way excusing or even explaining your behaviour. Before you begin consuming alcohol, and particularly consuming it to excess, you know the sort of effect that alcohol has on you.
I do take into account the very significant period of time that has passed since I imposed sentence on you. I also take into account that the offences which constitute a breach of the Orders that I made in November 2012 are of a different nature and gravity to that offence for which I sentenced you in 2012.
I am obliged to cancel the Good Behaviour Order that was imposed in November 2012. I then only have two options: I either impose the sentence that was suspended; or I resentence you. Bearing in mind the significant progress that you have made since you were before me in November 2012, which includes obtaining qualifications, obtaining and maintaining employment and also helping to support your family, I do not propose to simply impose the suspended portion of the sentence that I imposed in
November 2012. I will instead resentence you.
Bearing in mind all of the matters that I have referred to, I am going to impose a sentence which is significantly shorter than that which I imposed in 2012. There is always a danger, to some extent, in dealing with a breach of a significant offence in this way, because there will then be on the criminal history a record of the fact that the offence was dealt with in a much more lenient way on the breach. But I see no alternative to that course because one must take into account what has occurred since sentence was imposed in 2012.
Resentence
I will resentence you to a period of 12 months' imprisonment commencing today,
12 August 2019, having cancelled the Good Behaviour Order which I imposed on
15 November 2012.
That sentence will be suspended forthwith, and there will be a Good Behaviour Order for a period of 12 months from today, 12 August 2019, with the same conditions that were imposed by Magistrate Taylor on Charge 1139 of 2019 in the ACT Magistrates Court. That is, that you are to be subject on probation to the supervision of the Director-General of Corrective Services, or that person's delegate, and obey all reasonable directions of that person for a period of 12 months, or such lesser period as deemed appropriate by your supervisor.
You are to attend assessments, programs and counselling as directed, particularly in relation to alcohol use. You are to supply samples of your breath, saliva, blood or urine for alcohol or drug testing, if required by a Corrections Officer.
[Speaking directly to offender]
Undoubtedly, Ms Dunne will explain that to you further, but what it means is that I have cancelled the Good Behaviour Order that I imposed in 2012. I have resentenced you to 12 months' imprisonment, but I have suspended that forthwith and there will be a Good Behaviour Order for a period of 12 months from today.
It is clear to me, HN, that you are somebody who has very significant abilities to be a positive contributor to this community and to your family. You have done a lot since you appeared before me in 2012, very much of it to the positive. You need to tidy up those parts of your life which have led you into further offending, and that particularly relates to alcohol use.
| I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |
0
0