R v John (No 4)

[2022] ACTSC 85

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v John (No 4)

Citation:

[2022] ACTSC 85

Hearing Date(s):

21 April 2022

DecisionDate:

21 April 2022

Before:

Elkaim J

Decision:

See [11]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Breach of Good Behaviour Order

Parties:

The Queen ( Crown)

H John ( Offender)

Representation:

Counsel

E Priestly ( Crown)

T Kelliher ( Offender)

Solicitors

ACT Director of Public Prosecutions ( Crown)

Tim Sharman Solicitors ( Offender)

File Number(s):

SCC 17 of 2016

Elkaim J

1. This matter comes before the Court because the offender is in breach of a Good Behaviour Order (GBO) and consequently needs to be dealt with. The original crimes that she committed which ultimately led to the GBO took place on 25 July 2015.

1. Those offences were serious offences, including aggravated burglary, damaging property as well as theft. She was originally sentenced by Refshauge J on 4 May 2017. However, because of breaches of Community Service Orders, after an appearance before McWilliam AsJ in 2018, she came to be re-sentenced by Burns J on 12 September 2019.

1. Burns J sentenced her to terms of imprisonment which he suspended upon the offender entering into a two-year GBO. That is the GBO that she is in breach of. The breach occurred on 14 July 2020 and was constituted by a driving offence in which the offender was pulled over, I understand, randomly. Upon testing, she was found to have drugs in her system.

1. It will be immediately seen that a lot of the events are fairly old. For reasons that seem to have developed from an initial plea of not guilty and then other delays, it was not until 1 February 2022 that the offender was dealt with for the driving offence. She received a 12-month GBO and was disqualified from driving for 18 months. I am told that the Magistrate when sentencing the offender specifically took into account, as an aggravating feature, that the offence was committed in breach of a GBO.

1. It might be said therefore that the offender has been punished both for the driving offence and for breach of the order. Nevertheless I am compelled to cancel the GBO that was imposed by Burns J and to re-sentence the offender.

1. For these purposes, not only do I note the subjective features that are set out in the judgments of Refshauge and Burns JJ, but also, and importantly, the material that has been handed up today by Mr Kelliher on behalf of the offender.

1. There are some references which I take account of, but the documents that have most influenced me in the course I am about to take are the documents showing the rehabilitation process that the offender is undergoing. She has started her own business involving hair extensions which she operates both on a mobile basis and also from home.

1. For a person like this offender, rehabilitation is absolutely vital and it would be completely inappropriate for me to interrupt the course of rehabilitation.

1. The Crown’s original submission was that a short but sharp period of imprisonment should be considered. The Crown however, when forming that view, had not had the benefit of the documents now before the Court. The Crown has very fairly acknowledged the force of the suggestion made by Mr Kelliher on behalf of the offender.

1. I intend to adopt that suggestion which I think is both fair and just.

1. I make the following orders:

(a)The sentences and GBO entered on 12 September 2019 are cancelled;

(b)The offender is resentenced as follows:

(i)For offence of aggravated burglary: 12 months’ imprisonment commencing on 21 April 2022 and ending on 20 April 2023;

(ii)For damaging property, six months’ imprisonment commencing on 21 April 2022 and ending on 20 October 2022;

(iii)For theft, 8 months’ imprisonment commencing on 21 April 2022 and ending on 20 December 2022;

(iv)For theft, 6 months’ imprisonment commencing on 21 April 2022 and 20 October 2022;

(v)For burglary, 10 months’ imprisonment commencing on 21 April 2022 and ended on 20 February 2023;

(vi)For theft, 9 months’ imprisonment commencing on 21 April 2022 and ended in on 20 January 2023;

(c)Each of the above terms of imprisonment is suspended with immediate effect upon the offender entering into a GBO for 12 months from today.

I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: