R v Hogan
[2015] ACTSC 151
•4 June 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Hogan |
Citation: | [2015] ACTSC 151 |
Hearing Date: | 3 June 2015 |
DecisionDate: | 4 June 2015 |
Before: | Burns J |
Decision: | See [11] |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – breach of good behaviour order – particular offences – property offences – aggravated robbery. |
Parties: | The Queen (Crown) Daniel Hogan (Offender) |
Representation: | Counsel Mr G Mansfield (Crown) Mr D Rutherford (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Services NSW/ACT (Offender) | |
File Number: | SCC 252 of 2011 |
BURNS J:
Background
Daniel Hogan, on 20 December 2013, I sentenced you to three years’ imprisonment fully suspended for an offence of aggravated robbery that occurred on 19 February 2011. I imposed a Good Behaviour Order for a period of 18 months from 20 December 2013, with the condition that you were to accept supervision, treatment and counselling for drug and alcohol abuse. That Good Behaviour Order will expire on 19 June 2015.
On 31 March this year, you were convicted in the Magistrates Court of six offences of common assault and one offence of knowingly resisting a Territory public official. You were sentenced to terms of imprisonment commencing on 8 December 2014 and expiring on 31 May this year. Those convictions mean that you are in breach of the Good Behaviour Order which I imposed on 20 December 2013. By virtue of the Crimes (Sentence Administration) Act 2005 (ACT), where breach of a good behaviour order imposed as part of a suspended sentence order is proved, the court must cancel the good behaviour order and either impose the sentence which was suspended or resentence the offender.
Consideration
Prior to imposing sentence on 20 December 2013, you were subject to a Deferred Sentence Order which I imposed on 30 August 2012, the object of which was to give you an opportunity to demonstrate your willingness to work with ACT Corrections and other bodies to address your drug and alcohol addictions. I told you very clearly on 30 August 2012 that I was giving you an opportunity to demonstrate your commitment to dealing with alcohol and drug issues and to get your life on track. I told you that it was my expectation that you would not consume alcohol or illicit drugs. On 20 December 2013, I was satisfied that you had made considerable advances towards rehabilitation during the period of the Deferred Sentence Order, although there was a concern that you were continuing to use cannabis, albeit at a reduced rate of consumption. I told you that you must work towards ceasing the use of cannabis, because its use had led you to commit offences in the past. When I passed sentence on you, I told you that I was suspending the sentence of imprisonment to give you an opportunity to avoid having to serve a term of full-time imprisonment. I told you that you had made a good start, but you had to maintain your commitment because, if you significantly breached your good behaviour obligations, you should expect to serve at least a part of that three years’ sentence of imprisonment by way of full-time imprisonment.
I note that the offences for which you were convicted in the Magistrates Court on 31 March this year occurred on a range of dates from 28 September 2014 to 6 December 2014. This is not a case where there was a sole breach occurring during the term of the Good Behaviour Order. Breaches occurred on five separate occasions.
According to a Pre Sentence Report dated the 25 March this year, you indicated you were not only using cannabis regularly in the period when the offenses occurred in 2014, but you had also recommenced using methyl amphetamine. You apparently recommenced the use of cannabis after those supervising you pursuant to the Good Behaviour Order stopped requiring you to undergo urinalysis. Your use of that substance escalated after you lost your employment just before September 2014. It is to your credit that, since you have been in the Alexander Maconochie Centre (AMC), you have been participating in drug and alcohol rehabilitation programs. I note that you have completed the SMART recovery program and you are currently in the Solaris Therapeutic Community in the AMC, a program which takes four or five months to complete.
In evidence before me, you said that you want to obtain employment when you are released from the AMC. I note that your father gave evidence that he is in a position to be able to arrange employment for you as a bricklayer’s labourer if you are released sometime within the next six months. You spoke of your desire to remain drug-free, saying that you are more committed to that outcome now than you were previously.
In the light of your unwillingness to cease cannabis use despite having a three year sentence of imprisonment hanging over your head, and the rapid escalation of your drug abuse when confronted with a relatively minor setback such as loss of employment, I have doubts about your level of commitment to ceasing drug use, which I am satisfied is the key to your rehabilitation. Hopefully, completion of the Solaris program will provide you with the incentives and skills to avoid a return to the use of illicit drugs when you are returned to the community.
You are currently 24 years old and, as such, you are still a relatively young man. Rehabilitation remains a significant sentencing consideration. However, it appears that neither you nor the community has achieved any real or lasting benefit from the suspension of the term of imprisonment I imposed on 20 December 2013.
Conclusion
In my opinion, the appropriate course is to cancel the Good Behaviour Order and impose the sentence of three years’ imprisonment. I will backdate the commencement of this sentence to 1 January 2015 so that it is served partially concurrently with the sentences imposed in the Magistrates Court.
I will set a shorter than usual non-parole period of 12 months based upon your age. I recommend to the Sentence Administration Board that any release on parole be accompanied by a requirement that you undergo urinalysis for a significant period after release.
Sentence
The formal orders that I make are:
(a)that the Good Behaviour Order of 20 December 2013 is cancelled and the suspended sentence of three years’ imprisonment is imposed, commencing 1 January 2015 and expire on 31 December 2017; and
(b)I set a non-parole period of 12 months commencing on 1 January 2015 and expiring on 31 December 2015.
| I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 23 June 2015 |
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