R v Jacky

[2019] ACTSC 123

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Jacky

Citation:

[2019] ACTSC 123

Hearing Dates:

18 May 2018; 27 November 2018

Decision Date:

15 February 2019

Before:

Burns J

Decision:

See [1]-[2], [5], [7]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – robbery – plea of guilty – breach matters – transfer charge of driving while disqualified – consideration of s 69 of the Road Transport (General) Act 1999 (ACT) – poor criminal history – advances in addressing drug and alcohol abuse

Legislation Cited:

Crimes (Sentence Administration) Act 2005 (ACT) s 42

Road Transport (Driver Licensing) Act 1999 (ACT) s 32

Road Transport (General) Act1999 (ACT) s 69

Cases Cited:

Smith v Stivala [2018] ACTSC 309; 86 MVR 465

Parties:

The Queen (Crown)

Ernest Bruce Jacky (Offender)

Representation:

Counsel

D Sahu Khan (Crown)

J Lawton (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

John O’Keefe Law Firm (Offender)

File Numbers:

SCC 166 of 2017; SCC 169 of 2017

BURNS J:  

1.          Mr Jacky, I accept that you have made advances in addressing alcohol and drug abuse since you were released from Goulburn Correctional Centre where you were serving sentences imposed in New South Wales. I note the contents of the updated Intensive Correction Order Assessment which has been placed before me and, in particular, the results in relation to drug testing which have occurred between November 2018 and the end of January 2019. In all of the circumstances, I propose to proceed by way of an Intensive Correction Order with regard to the charge of robbery (XO2017/31180). My starting point would be a sentence of two years' imprisonment but I will reduce that to 20 months in order to reflect your plea of guilty. You are sentenced to 20 months' imprisonment commencing 15 February 2019, and I order that be served by way of an Intensive Corrections Order which includes the core conditions mentioned in the Crimes (Sentence Administration) Act 2005 (ACT), s 42.

2.          There will further be a curfew condition requiring you to be at your place of residence between 10.00 pm each evening and 6.00 am in the following morning for a period of six months commencing 15 February 2019.

3.          I note that Corrective Services have indicated that the Intensive Correction Order which I have imposed will be primarily directed towards addressing continued engagement with Winnunga Nimmityiah Aboriginal Health Service in relation to alcohol and drug use and continued engagement with that service in relation to your general health, and also employment and/or training.

[Speaking directly to offender]

4.          Mr Jacky, even though you have quite a poor criminal history I am giving you an opportunity not to have to serve a further term of imprisonment with respect to this matter, but really now the ball is in your court. I have given you that opportunity and it is a matter for you whether you take it. As I said, it is very heartening that the drug testing between November 2018 and the end of January 2019 has been negative but you must maintain your commitment. 

Breach matters

5.          With respect to the breach matters, I do not believe that I have any power to take any further action.

Transfer charge

6.          In regards to the transfer charge of driving whilst disqualified (CC17/5732), the disqualification applies by force of the Road Transport (Driver Licensing) Act 1999 (ACT). Section 32(7) of the Road Transport (Driver Licensing) Act 1999 (ACT) provides:

32        Offences committed by disqualified drivers etc

…

(7)       If a person is already disqualified from holding or obtaining a driver licence, or the person’s driver licence is suspended, the disqualification takes effect at the end of the disqualification or suspension.

…

7.          This is not something that I have any discretion with regard to. In many respects it is very draconian in the way in which these provisions work. I will record a conviction and I will simply impose a Good Behaviour Order for a period of six months which will be confined to the core conditions, bearing in mind the fact that the offender is going to be on an Intensive Corrections Order and that statutory disqualification will apply. I do not know what the offender’s situation is with regard to whether he is currently subject to disqualification or suspension. That is something that he will need to get some advice about because if he is currently under disqualification or suspension, that statutory disqualification period of two years is cumulative, so in terms of when he will be in a position to try to regain a licence, he needs to get some advice about that.

8. Counsel for Defence raised s 69 of the Road Transport (General) Act 1999 (ACT), which provides:

69        Multiple disqualifications cumulative unless court orders otherwise

If –

(a)    a person is disqualified (whether or not by court order) from holding or obtaining an Australian driver licence because of being convicted or found guilty by a court in Australia of an offence against the law of any jurisdiction; and

(b) before the period of disqualification has ended, the person is again so disqualified;

the periods of disqualification are cumulative unless a court in Australia orders

otherwise.

9.          I considered that provision in the recent decision of Smith v Stivala [2018] ACTSC 309; 86 MVR 465. In my view that is not a source of power to order that disqualifications be served concurrently. It is, in effect, an acknowledgement of the fact that disqualifications will occur outside the ACT and that provision regulates how they are to be served for the purposes of the ACT.

10.       In my opinion the way in which the legislation works can work injustice because with regard to minimum mandatory disqualifications, those which are imposed by the statute, it appears to me that the Court has no power to order that they be served concurrently. It is, in one sense, bad enough that there is a mandatory disqualification which removes any discretion from the Court to consider the particular circumstances of the case or the particular offender but the potential for injustice is heightened by the statutory scheme which requires, in effect, that all such disqualifications be accumulated.

I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Burns.

Associate:        

Date: