R v Kaddour
[2022] ACTSC 303
•2 November 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kaddour |
Citation: | [2022] ACTSC 303 |
Hearing Date: | 2 November 2022 |
DecisionDate: | 2 November 2022 |
Before: | Loukas-Karlsson J |
Decision: | See [21] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of good behaviour order – where breach taken into account in the Magistrates Court – where prosecution submitted no action should be taken on the breach – consideration of offender’s rehabilitation – no action taken |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 s 108 Crimes (Sentencing) Act 2015 (ACT) |
Cases Cited: | Hogan v Hinch [2011] HCA 4; 243 CLR 506 |
Parties: | The Queen (Crown) Ibrahim Kaddour (Offender) |
Representation: | Counsel E Bayliss (Crown) Self-represented (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Self-represented (Offender) | |
File Numbers: | SCC 101 of 2019 SCC 102 of 2019 |
Loukas-Karlsson J:
Introduction
The offender, Ibrahim Kaddour, appears before me today, 2 November 2022, for sentence for a breach of two Good Behaviour Orders that were imposed by myself on 21 November 2019.
The offender entered pleas of guilty in the ACT Magistrates Court on 25 May 2022 to the following offences. The offender was sentenced on 29 July 2022 as follows, after having served 9 months and 16 days in custody:
(a)CC2021/10309 – Use carriage service to menace or harass on 6 June 2021:
Convicted and sentenced to two months’ imprisonment from 14 October 2021 to 13 December 2021.
(b)CC2021/10308 – Assault occasioning actual bodily harm on 8 May 2021:
Convicted and sentenced to six months’ imprisonment from 13 December 2021 to 12 June 2022.
(c)CC2021/10305 – Reckless threat to kill a person on 8 May 2021:
Convicted and sentenced to 20 months’ imprisonment to be served by way of an Intensive Correction Order from 14 June 2022, with a condition that the offender complete 240 hours of community service by 14 June 2023.
(d)CC2022/2496 – Joint commission theft on 8 May 2021:
Convicted and sentenced to 4 months’ imprisonment to be served by way of Intensive Correction Order from 14 February 2024.
(e)CC2022/2493 – Posses offensive weapon with intent on 8 May 2021:
Convicted and sentenced to the rising of the Court.
(f)CC2021/1107 – Possess offensive weapon on 6 June 2021:
Convicted and sentenced to the rising of the Court
(g)CC2021/11008 – Possess unregistered firearm on 14 October 2021:
Convicted and sentenced to the rising of the Court.
(h)CC2021/11009 – Unlawful possession of stolen property on 14 October 2021:
Convicted and sentenced to the rising of the Court.
The total effect of that sentence was that the accused was sentenced to 6 months’ full-time imprisonment. Upon completion of that term, the accused was subject to an Intensive Correction Order commencing 14 June 2022, to expire on 13 June 2024, with community service attached.
Each of the offences outlined above at paragraph 2 place the offender in breach of two concurrent Good Behaviour Orders imposed by me on 21 November 2019.
Principles
The following considerations are relevant in deciding how to deal with the breach of a Good Behaviour Order:
(a)The proportion of the term of the Good Behaviour Order that had been served without a breach;
(b)Any rehabilitation attained by the offender prior to the breach;
(c)The nature of the offence which breached the order, including whether it is similar to the offence for which the sentence of imprisonment, then suspended, was imposed;
(d)Whether the breach evinces an intention to disregard the obligation to be of good behaviour or to abandon any intention to be of good behaviour;
(e)Whether the offender has received any warnings with respect to breaches;
(f)The level of understanding of the offender of his obligations under the terms of the order and the consequences of a breach;
(g)The prospects of the offender’s rehabilitation, noting that the legislation expressly applies the Crimes (Sentencing) Act 2015 (ACT) to any resentencing, which permits all relevant factors on sentence to be taken into account; and
(h)The nature of judicial and community resources previously devoted to the offender: R v Bennett [2017] ACTSC 104 at [11].
Consideration
Pursuant to s 108(2) of the Crimes (Sentence Administration) Act 2005 (ACT), the Court may do the following:
(a)Take no further action;
(b)Give the offender a warning about the need to comply with the offender’s obligations;
(c)Give the director general directions about the offender’s supervision;
(d)Amend the good behaviour order;
(e)Make orders with respect to any security given under the order;
(f)Cancel the order and effectively resentence.
If the court decides to resentence, a resentence is conducted under the same terms as an original sentence (see s 108(4) of the Crimes (Sentence Administration) Act 2005 (ACT)); the court should possess all relevant information, including the material of the original proceedings; and the court should be appraised of information concerning the offender since.
At the time of the commission of the breach offences, the offender had approximately six months remaining on the 24-month Good Behaviour Orders, having served approximately 18 months without issue.
The prosecution submitted that until the offending in May 2021, the offender was progressing well under the Good Behaviour Orders, as reflected in the pre-sentence report.
10.The prosecution further submitted that the fresh offending has similar features to the offences the subject of the Good Behaviour Order. Both series of offences involved weapons and violence; both series of offences were committed in the presence of other offenders; and both series of offences were committed inside a residential premises and involved assaults on a resident of the premises.
11.The prosecution submitted that in the case of re-offending of a similar nature, the offender’s rehabilitation under the Good Behaviour Orders should be appropriately scrutinised.
12.However the prosecution further submitted that since the commission of the fresh offences, the offender appears to have made progress with respect to his rehabilitation, noting that while on remand for a period of approximately nine months, the offender has participated in programs and interventions outlined in his sentence bundle tendered into evidence before me.
13.Since the commencement of the offender’s Intensive Correction Order on 14 June 2022, there has been no breach action initiated. This is important, and I underline that rehabilitation is an important consideration, having regard to the offender’s relative youth and remorse. I note, in particular, the apology that the offender made in court this morning.
14.I draw on the statement of former Chief Justice French in Hogan v Hinch [2011] HCA 4; 243 CLR 506 that rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest. I also note the following observations made in our jurisdiction, to similar effect, in R v Hill [2016] ACTSC 310 at [48]:
Where a person has very good prospects of rehabilitation, by supporting those prospects in the sentence the court also addresses likely future harm to the community and protection of the community.
15.The prospects of rehabilitation from the evidence that I have before me today indicate that Mr Kaddour has made good progress, and that is clear from both what the prosecution has had to say and also on the submissions made by the offender himself, Mr Kaddour, in court today. Evidence of rehabilitation may mitigate the need for personal deterrence and does so in this case: Stanford v The Queen [2007] NSWCCA 73 at [19]. In light of the evidence referred to by the prosecution and the offender, it is clear that rehabilitation looms large in relation to this matter.
16.The prosecution submitted that although the offender breached the Good Behaviour Orders and these Good Behaviour Orders have now expired, this does not preclude action being taken. Nevertheless, the prosecution further submitted in written and in oral submissions that the presence of the Good Behaviour Orders would have been considered as an aggravating factor on sentence in the Magistrates Court.
17.I note the recent imposition of an Intensive Correction Order and I note the evidence before me today that refers to the fact that Mr Kaddour is compliant with his order, has started his community service and has so far completed a significant number of hours and will continue to attend on Saturdays. Mr Kaddour also indicated he will attempt to do extra days as weather slows down his normal work.
18.The Intensive Correction Order is targeted at addressing the offender's criminogenic risks for a period of 24 months. The prosecution and Mr Kaddour, appearing for himself, submitted it would be appropriate to take no further action on the breach matters. The court agrees with this submission.
19.It bears repeating that the court must do what it can to ensure that rehabilitation is encouraged and there has been good evidence of that before me today. It is important from the court's perspective that court is not a revolving door to more crime and that the court is part of ensuring that rehabilitation continues. I have come to that conclusion in this case, taking into account the relevant principles referred to above and the evidence before me today. Therefore, the order I make is that I will take no further action in relation to the breaches.
20.Mr Kaddour, you must continue with your rehabilitation. That is important to you, your family, and our community.
Orders
21.I make the following order:
(a)I take no action in relation to the breaches.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson Associate: Rebecca Emder Date: 4 November 2022 |
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