R v KI (No 3)
[2021] ACTSC 297
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v KI (No 3) |
Citation: | [2021] ACTSC 297 |
Hearing Dates: | 8 November 2021 and 19 November 2021 |
DecisionDate: | 19 November 2021 |
Before: | Loukas-Karlsson J |
Decision: | See [54] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of suspended sentence – breach of good behaviour order – breach by further offending – where original offences were committed when offender was a young person – where fresh offences were committed when offender is now an adult – re-sentence |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) ss 86, 107, 108, 110 Crimes (Sentencing) Act 2005 (ACT) s 12 Road Transport (Safety and Traffic Management) Act 1999 (ACT) ss 7, 7A |
Cases Cited: | Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379 Guy v Anderson [2013] ACTSC 5 The Queen v PM (No 2) [2015] ACTSC 358 |
Parties: | The Queen ( Crown) KI ( Offender) |
Representation: | Counsel N Deakes ( Crown) S Zahnleiter ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) | |
File Numbers: | SCC 99 of 2020; 100 of 2020 |
LOUKAS-KARLSSON J:
Introduction
On 15 February 2021, KI (the offender) was sentenced by me for various offences that occurred at the Bimberi Youth Justice Centre: R v KS; R v KN; R v KI (No 2) [2021] ACTSC 23 (R v KI (No 2)). The offences and respective sentences were as follows at [182]-[191] of R v KI (No 2):
182. I record convictions in relation to the offences.
183. In respect of the offence of assault occasioning actual bodily harm (CH 1088/2019), the young person is sentenced to a term of 12 months of imprisonment, commencing on 4 February 2021 and expiring on 3 February 2022.
184. In respect of the offence of conspiring to escape from custody (CH1092/2019), the young person is sentenced to a term of 10 months of imprisonment, commencing on 4 May 2021 and expiring on 3 March 2022.
185. In respect of the offence of common assault (CH1085/2019), the young person is sentenced to a term of five months of imprisonment, commencing on 4 February 2022 and expiring on 3 July 2022.
186. In respect of the offence of common assault (CH1087/2019), the young person is sentenced to a term of five months of imprisonment, commencing on 4 April 2022 and expiring on 3 September 2022.
187. In respect of the offence of common assault (CH1086/2019), the young person is sentenced to a term of five months of imprisonment, commencing on 4 June 2022 and expiring on 3 November 2022.
188. In respect of the offence of knowingly resist a territory official (CH399/2020), the young person is sentenced to a term of two months and two weeks of imprisonment, commencing on 20 September 2022 and expiring on 3 December 2022.
189. In respect of the offence of knowingly resist a territory official (CH1090/2019), the young person is to enter into a good behaviour order for a period of 12 months.
190. In respect of the offence of affray (CH1091/2019), the young person is to enter into a good behaviour order for a period of 12 months.
191. Pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT), the sentences of imprisonment are to be suspended from today, 15 February 2021. The young person will enter into a Good Behaviour Order for a period of 22 months and comply with the core good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT). The young person is to comply with the following additional condition:
(i) Accept supervision of Child & Youth Protection Services and abide by any directions of officers of that service.
The offender’s sentences were wholly suspended upon entry into a good behaviour order for a period of 22 months. The good behaviour order commenced on 15 February 2021 and will expire on 14 December 2022. As noted above, the offender was separately sentenced to two 12 month good behaviour orders in respect of an offence of knowingly resist a territory official and an offence of affray. Those discrete good behaviour orders are not part of a suspended sentence. At the time the original offences were committed and when he was originally sentenced, the offender was a young person. Pursuant to s 86(1) of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act), a core condition of the offender’s good behaviour orders was that he must not commit an offence against a territory law, or a law of the Commonwealth, a State or another territory, that is punishable by imprisonment.
The offender has since pleaded guilty in the Magistrates Court to the following offences that occurred on 21 June 2021 (the fresh offences):
(a) An offence of aggravated furious, reckless, or dangerous driving, as a first offender, contrary to ss 7(1) and 7A of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (Safety and Traffic Management Act) (CC2021/6573). The maximum penalty for this offence is 3 years’ imprisonment, a fine of 300 penalty units ($48,000), or both: s 7(1)(a) Safety and Traffic Management Act. For the present matter, the offence also carries an automatic disqualification period for holding or obtaining a driver licence for a minimum of 12 months: s 63(3) Road Transport (General) Act 1999 (ACT).
(b) An offence of unlicensed driver, licence never held, as a repeat offender, contrary to s 31(2) of the Road Transport (Driver Licensing) Act 1999 (ACT) (Driver Licensing Act) (CC2021/6504). The maximum penalty for this offence is 6 months’ imprisonment, a fine of 50 penalty units ($8,000), or both: s 31(2)(b) Driver Licensing Act. The offence as particularised in this matter also carries an automatic disqualification period from obtaining a driver licence for a minimum of 3 years: s 31(3)(b) Driver Licensing Act.
On 7 September 2021, Magistrate Theakston committed the offender to the Supreme Court so that the breach of the offender’s good behaviour obligations could be dealt with by the Supreme Court: s 107(2) of the Sentence Administration Act.
As the offender’s 22 month good behaviour order was made pursuant to s 12(3) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) thereby attaching it to a suspended sentence, the offender’s breach is to be dealt with having regard to s 110 of the Sentence Administration Act. The offender’s breach of the two 12 month good behaviour orders are to be dealt with by application of s 108 of the Sentence Administration Act.
At the time of the fresh offences, the offender had since attained 18 years of age and is legally an adult. However, as the fresh offences breach the good behaviour orders and suspended sentences that were imposed when he was a young person, the offender will retain his anonymised name for the breach proceedings, in compliance with s 712A of the Criminal Code 2002 (ACT).
Legislative Regime
Section 107 of the Sentence Administration Act relevantly provides:
107 Offence committed while under good behaviour order
(1) If the Supreme Court finds an offender guilty of an offence committed during the term of the offender’s good behaviour order, the court may deal with the offender under this part for breach of the offender’s good behaviour obligations.
(2) If the Magistrates Court finds an offender guilty of an offence committed during the term of the offender’s good behaviour order, and the order was made or changed by the Supreme Court, the Magistrates Court must, in addition to dealing with the offender for the offence, commit the offender to the Supreme Court to be dealt with under this part for breach of the offender’s good behaviour obligations.
(3) For subsection (2), a magistrate may remand the offender in custody until the offender can be brought before the Supreme Court.
Section 108 of the Sentence Administration Act outlines a Court’s powers when a breach of the obligations of a good behaviour order without a suspended sentence occurs:
108 Court powers—breach of good behaviour obligations
(1)This section applies if—
(a)a court is satisfied an offender has breached any of the offender’s good behaviour obligations; and
(b)section 110 (Cancellation of good behaviour order with suspended sentence order) does not apply to the offender’s good behaviour order.
(2)The court may do 1 or more of the following:
(a)take no further action;
(b)give the offender a warning about the need to comply with the offender’s good behaviour obligations;
(c)give the director‑general directions about the offender’s supervision;
(d)amend the good behaviour order;
(e)if the offender has given security under the order—
(i)order payment of the security to be enforced; and
(ii)order the good behaviour order to be cancelled on payment of the security (if the term of the order has not already ended);
(f)cancel the order.
Examples for par (d)
impose or amend an additional condition of the order, or amend the term of the order
(3)If the court cancels the good behaviour order, the court must—
(a)if section 109 applies to the offender’s good behaviour order—deal with the offender under that section; or
(b)in any other case—re-sentence the offender for the offence for which the good behaviour order was made (the relevant offence).
(4)The Crimes (Sentencing) Act 2005 applies to the re-sentencing in the same way that it applies to the sentencing of an offender on a conviction for the relevant offence.
(5)The court’s powers under this section are subject to section 113 (Good behaviour orders—limitations on amendment or discharge).
(6)To remove any doubt, an offender re-sentenced by a court under this section has the same right of appeal as the offender would have had if sentenced by the court on being convicted of the relevant offence.
Section 110 of the Sentence Administration Act establishes what the Court must do when an offender breaches good behaviour obligations that form part of a suspended sentence order. It states the following:
110 Cancellation of good behaviour order with suspended sentence order
(1) This section applies if—
(a) an offender’s good behaviour order was made under the Crimes (Sentencing) Act 2005, section 12 (3) (Suspended sentences) on the offender’s conviction for an offence; and
(b) a court is satisfied the offender has breached any of the offender’s good behaviour obligations.
(2) The court must cancel the good behaviour order and either—
(a) impose the suspended sentence imposed for the offence; or
(b) re-sentence the offender for the offence.
…
Statutory Construction
As I discussed in R v Collier(No 2) [2021] ACTSC 177 (R v Collier (No 2)) at [9]-[11], s 107(2) of the Sentence Administration Act does not mandate whether the Magistrates Court is to sentence the offender prior to or after the breach of the good behaviour order is dealt with by the Supreme Court. Section 107 is also silent on the definition of what the Magistrates Court must do when “dealing with the offender”.
The parties in R v Collier (No 2) made submissions that the provision is silent on the appropriate sequence of which Court is to proceed first so to allow flexibility in matters of this kind. The silence allows for the appropriate course to be determined on the circumstances of each matter.
On 8 November 2021, I discussed with the parties in this matter whether it was appropriate that the Magistrates Court deals with the offender for the fresh offences prior to the Supreme Court dealing with the breach. The approach adopted was for sentencing in the Magistrates Court to proceed.
Subsequently, on 11 November 2021, the offender was sentenced in the Magistrates Court for the fresh offences. Special Magistrate Campbell sentenced the offender as follows:
(a) For the offence of aggravated furious, reckless, or dangerous driving (CC2021/6573), the offender was convicted and sentence to 6 months’ imprisonment from 21 June 2021 to 20 December 2021. Special Magistrate Campbell imposed the automatic disqualification period for holding or obtaining a driver’s licence for 12 months.
(b) For the offence of unlicensed driver, licence never held, repeat offender (CC2021/6504), the offender was convicted and fined $350 with no time to pay. Special Magistrate Campbell imposed the automatic disqualification period for obtaining a driver’s licence for 3 years.
I note that Special Magistrate Campbell also re-sentenced the offender for breaches of good behaviour orders that had been imposed in the Magistrates Court. Those matters do not breach the suspended sentences and good behaviour orders imposed by the Supreme Court and therefore do not fall to be considered.
Facts
As recently noted by Refshauge AJ in R v Kelly (No 2) [2021] ACTSC 253 (R v Kelly (No 2)) at [15], the Court must have detailed information of the facts pertaining to the original offending that resulted in the imposition of the suspended sentence with a good behaviour order, as well as the facts of the offences that amount to the breach: see also Gyory v The Queen [2012] ACTCA 28; R v Beniamini (No 2) [2017] ACTSC 32 at [52]-[53].
The Crown Tender Bundle for the breach proceedings contained the agreed statement of facts for the original offending, my decision in R v KI (No 2), as well as the statement of facts for the fresh offences.
The Prior Offences
In R v KI (No 2), I summarised the agreed facts from [9]-[40] as follows:
9. At about 6pm on 26 August 2019, Mr Feain (a youth worker) was supervising KI, KN, QH, and two other Bimberi detainees in Majura Wing 2 at Bimberi. Ms Bowen (a youth worker) was supervising KS, CR, and one other detainee in Majura Wing 1. Ms Redman (the team leader) was stationed in the Duty Point, an area in which only staff were permitted.
10. Mr Feain observed that the detainees under his supervision were acting strangely and surmised that they might be planning a disturbance. In fact, at the instigation of KI, they were planning to “rush” the Duty Point and take keys.
11. At about 6:20pm, Mr Feain entered the Duty Point and told Ms Redman of his concerns. Ms Bowen raised similar concerns. It was decided that chores would be cancelled, and the detainees would go to bed early.
12. While Mr Feain was in the Duty Point with Ms Redman, there was a knock at the door connecting the Duty Point to Majura Wing 2. Mr Feain opened the door and saw KI, QH, and KN standing against the doorway.
13. KI, QH, and KN pushed forward into Mr Feain, forcing him backwards. Mr Feain tried to push them outside the room. KN responded by pushing Mr Feain. Mr Feain felt two punches to his head.
14. In relation to KI, the breach of the Duty Point was an overt act in furtherance of the conspiracy to escape lawful custody, which had been planned in education that morning (KI: conspiracy to escape lawful custody).
15. Mr Feain started screaming “black, black, black” to request a code black. Ms Jones (the control room operator) announced a “Code Black” over the radio to signal a security incident.
16. Ms Bowen told KS and CR to go to their rooms and they refused, instead putting their shoes on. Ms Bowen approached the duty point door to open it. KI yelled: “boys, shut the door, shut the door”. KS said to CR: “it’s happening, it’s happening”.
17. Ms Redman attempted to pull QH, KI and KN off Mr Feain and stop them from punching him. KN slammed the door on Ms Redman. At one point, KN and QH were involved in an altercation in which Ms Redman sustained a wound to her left forearm occasioned by a sharp object (KN: assault occasioning actual bodily harm by joint commission).
18. KI closed the door to Majura Wing 2 and opened the Duty Point door to Majura Wing 1. As he opened the door, he stated: “Come on boys, let’s do this”. KS and CR pushed past Ms Bowen and entered the Duty Point.
19. The young persons began throwing punches at Mr Feain as he tried to restrain them. KI punched Mr Feain to the back of the head with full force. Mr Feain was struck on the right side by KS and, immediately after, on the left side of his head. KS threw a number of punches to Mr Feain’s right jaw (KS: common assault). Mr Feain grabbed KS and pushed him into the corner of the desk.
20. Mr Feain tried to push KI and KN across the room and they went over the desk, hitting the computer and landing on the floor. QH then began assaulting Mr Feain, hitting him twice to the side of the head and cutting open his head. QH was holding a sharp screw which was poking out of his hand.
21. Mr Feain flung QH to the ground. KN and KI then moved towards Mr Feain and started striking him in the side and the back of the head (KI and KN: common assault). KN stabbed Mr Feain in the face with a pen, causing Mr Feain’s head to bleed (KN: assault occasioning actual bodily harm). Mr Feain then spun KN and KS around and flung them towards the door.
22. At this time, KI picked up a computer hard drive, held it above his head and started moving towards Mr Feain. Ms Redman screamed at him not to do it. KI smashed the hard drive over Mr Feain’s head using both hands and splitting Mr Feain’s head open (KI: assault occasioning actual bodily harm). KI and KN then continued punching Mr Feain in the head.
23. During this time, Ms Redman and Ms Bowen tried to pull the young persons off Mr Feain and push them out of the Duty Point. They managed to push QH, KN, KS and CR out of the Duty Point and into the Majura Wing 1 Recreation Room. Ms Bowen then “shoulder-charged” KI out of the Duty Point and into the same Recreation Room. Ms Brennan then entered the Recreation Room.
24. KI and KS then yelled at Ms Redman to give them her keys. KS grabbed hold of the keys on Ms Redman’s belt and tried to pull them off her. Ms Redman attempted to restrain KI and KS, but they continued to push her away (KS: resist territory official).
25. Ms Brennan attempted to assist Ms Redman in restraining KI. KI forcefully pushed Ms Brennan away (KI: common assault).
26. Ms Ashley Payne, Mr Simon Fahey and Mr Brent Owen entered the Recreation Room to intervene and assist the other staff members in restraining the young persons.
27. Mr Fahey grabbed hold of KS and pulled him to the ground. KS reached around and unfastened a set of keys tied to Mr Fahey’s belt. KS yelled at CR and threw the keys across the room towards him. CR ran after the keys, followed by Ms Redman.
28. In relation to KS, the breach of the Duty Point, attempting to take Ms Redman’s keys, and taking Mr Fahey’s keys were overt acts in furtherance of the conspiracy to escape lawful custody, which had been planned in education that morning (KS: conspiracy to escape lawful custody).
29. KI, KN and QH punched Mr Feain in the head as he attempted to restrain KN on the ground (KI and KN: common assault). QH came over and stabbed Mr Feain in the back and side with the screw, yelling “get off him!”.
30. CR exited the Recreation Room and QH followed him. Further offences were committed by CR and QH after leaving the Recreation Room.
31. A number of additional youth workers attended the Recreation Room to assist in restraining KS, KN and KI.
32. KS was restrained by three youth workers. At one point, he stood up and tried to break free from their grip. At 6.25pm, KS was dragged to a cell, kicking and lashing out with his body (KS: resist territory official).
33. KI violently resisted being restrained by a number of youth workers, including Ms Bowen. He head-butted Ms Bowen with full force and said: “Jane, you know I don’t want to hurt you. Just, you know, fuck off. Fuck off”. KI thrashed his head around and hit Mr Owen’s head multiple times (KI: resisting territory official). It was decided that KI needed to be picked up and carried to his cell. Five youth workers were required to carry KI to his cell; he was secured at 6:29pm (KI: resist territory official).
34. Mr Feain returned to the Recreation Room to assist Mr McFarlane to restrain KN. Mr Feain and Mr McFarlane got KN to his feet while he was resisting and screaming. Mr Feain took hold of KN’s arm and asked him if he was ok. KN stopped resisting, looked at Mr Feain, and replied “Sorry. I’m okay. Are you okay?” to which Mr Feain replied, “I’m okay”. KN immediately began resisting and screaming again. Four youth workers transported KN to his cell, where he was placed and secured at 6:31pm (KN: resist territory official).
35. The violence engaged in by all of the young people during the incident constitutes the charges of affray (KS, KN, KI: affray).
36. On 28 August 2019, KI disclosed in a phone call that the purpose of the incident was “to try and get out”, and that the group was “trying to get the keys … this this worker got in the way … and then [CR] got out with the keys. Nearly got out”, and that KI “was the instigator”. He further stated: “I was sick of getting locked in my room … Like, I get locked up in my cell anyway, so I wanted to make it for something that I’ve done this time instead of being locked in my cell all day for other people”.
37. On the same day, in a separate phone call, KN disclosed:
So at the start we planned it – like we’d just rush the duty point … Then we told [CR]’s unit we’re … “doing it cunt”. And then they’re like, “Alright. At six thirty.” It got to six thirty, bro, and we ran in.
38. KS also told a family member via recorded phone call that he was involved in the incident.
39. Some weeks after the incident, KS and KN had a conversation about the incident with Ms Bowen. They stated that it had been planned that day in education and that KI had intended to escape and go to Queensland.
40. Throughout the incident, Bimberi staff told the young persons to stop attacking staff but were ignored.
(emphasis added)
The Fresh Offences
On 21 June 2021 at about 12:50PM, police were conducting a patrol in an unmarked police vehicle in Conder. Police observed a silver Ford Territory bearing NSW registration plates (the silver Ford) travelling west on Heidelberg Street. Police followed the vehicle onto Heidelberg Street and activated their emergency lights and sirens in an attempt to conduct a traffic stop.
The silver Ford proceeded to accelerate heavily away from police before turning right onto Box Hill Avenue. Police continued to follow the silver Ford onto Tharwa Drive. The silver Ford continued to travel at what was estimated to be not less than 130 kilometres per hour in an 80 kilometres per hour speed zone.
Police briefly lost sight of the silver Ford after it briefly lost control whilst attempting to negotiate a left turn. The silver Ford was then seen heading at speed into the Lanyon Market place, which was extremely busy with vehicular and pedestrian activity at the time. The silver Ford was further observed to be travelling at speed.
A short time later, the silver Ford was located and seized by police. The silver Ford was a confirmed stolen motor vehicle. Police then observed the offender walking form the location where the silver Ford was found. The offender was placed under arrest.
Police checks showed that on 11 June 2020, Magistrate Cook had disqualified the offender from holding or obtaining a driver licence for a period of three months. At the end of the disqualification period, the offender did not apply for a driver licence. At the time of driving the silver Ford, the offender was an unlicensed driver.
Subjective Circumstances
The subjective circumstances of the offender at the time the suspended sentences and good behaviour orders were imposed are summarised in R v KI (No 2) from [101]-[120]. It is not necessary to repeat this information in full, as there is further material before the Court for the breach proceedings. However, it is important to note the following factors that were discussed in R v KI (No 2).
While growing up, the offender had an extensive history with Children Youth and Protection Services (CYPS) which included him being removed from his parents’ care as a toddler and being placed in kinship care for a period of approximately seven years. The offender was then reunited with his mother.
The offender enjoyed furthering his education and at the time of the original sentencing, had expressed he wished to obtain his year 12 certificate, as well as potentially go on to study law at university.
I also made reference to the offender’s criminal history at the time of the original sentence and noted that it involved numerous periods of custody.
Before me for the breach proceedings is an updated pre-sentence report, a letter from the offender’s mother, a letter from the offender’s college, and a letter from the offender.
Updated Pre-Sentence Report
The updated pre-sentence report is dated 28 October 2021 (the updated PSR) and expands on the original pre-sentence report dated 2 February 2021 that was before the court for the original offences.
The updated PSR notes that the offender was remanded in custody on 22 June 2021 for the fresh offences. At the time the updated PSR was completed, the offender was remanded in the Alexander Maconochie Centre (AMC), as he is now an adult. I note at this juncture that as a result of the sentences imposed by Special Magistrate Campbell, the offender will remain in the AMC as a sentenced prisoner until 20 December 2021. The updated PSR states that the offender was compliant with requests for the purposes of completing the report.
The offender claimed he has spent his time on remand reflecting on his poor choices. The offender informed the author that prior to being remanded in custody, he had begun to make positive changes to his life. This included engaging with prosocial companions in the community and positive relationships with his family. The offender stated this was the first time he has felt like he has had something to lose by coming into custody.
The offender has engaged in personal development activities while on remand and reported he had completed self-directed learning booklets as well as engaging in employment as a sweeper.
At the time of his arrest for the fresh offences, the offender was enrolled in a college in the ACT working towards completion of his year 12 certificate. Regrettably, the updated PSR notes that the offender has not been able to continue his education whilst he has been remanded in the AMC.
The offender reported that he commenced using cannabis at 12 years old and started using methamphetamine when he was 13 years old. During a period in juvenile detention, the offender engaged with the Ted Noffs Foundation and the offender stated he had ceased methamphetamine use in 2019.
The offender reported recent cannabis use, and this was evidenced by urinalysis upon entry to the AMC. The offender informed the author that he has not used cannabis since being in the AMC and stated he will remain abstinent upon release. The updated PSR notes that the offender would benefit from support from specific drug and alcohol treatment services to maintain his abstinence in the community.
The offender attempted to apply to the Triple Care Farm in Robertson NSW, a youth drug and alcohol program that offers withdraw, rehabilitation, and aftercare support to Australians aged from 16 to 24 years. The offender reported that he had difficulty sourcing the information to complete the application. Correspondence from Triple Care Farm indicated that the offender’s application has been closed due to the lapse in time with no progression with supply of requested information.
The updated PSR states that the offender’s risk of general reoffending was assessed as medium. It states that the offender could reduce his risk of general reoffending by completing his education, seeking employment or further study, seeking treatment to address substance abuse, engaging in prosocial activities, and undertaking an anger management program.
The author of the updated PSR opines that the offender is suitable for a medium level of intervention by ACT Corrective Services. Such supervision would include strategies to address the following identified areas of dynamic risk:
(a) Education and employment;
(b) Alcohol and other drugs;
(c) Financial;
(d) Leisure and recreation; and
(e) Attitudes and orientations.
To address these risks, the offender could participate in further education, alcohol and drug treatment, seek employment, engage in prosocial activities, and motivational interviewing. The updated PSR notes that if a good behaviour order is imposed, it is recommended that a condition be included that supervision be only for the period deemed necessary by ACT Corrective Services.
The updated PSR also reports that the offender has been assessed as suitable for a community service work condition. However, if the offender reengages with working towards obtaining his year 12 certificate, it may be difficult for the offender to engage in community service.
Letter from the Offender’s Mother
Counsel for the offender tendered a letter under the hand of the offender’s mother that had been prepared in support of a bail application in the Supreme Court on 24 September 2021. That letter contains the following:
I am aware of the charges [my son] faces, the subsequent breaches and acknowledge the seriousness of those offences.
I wish to make you aware of the significant changes [KI] has made in his life since his release from Bimberi in 2020. [KI] had been working extremely hard on making more positive choices, was taking an active role in addressing his earlier drug use and was engaging well with his supervision with CYPS and any requirements they had. Upon his release he began employment with ABS Facades where he was a reliable and productive employee. The only reason he ceased his employment was to concentrate on his schooling and the completion of his Year 12 certificate as this has become an important goal for [KI] and his aspirations for the future.
[KI’s] schooling is extremely important to him and the inability to continue his studies whilst in AMC is a devastating blow. I feel the chance to complete his studies puts him in a much better position to build a positive future and to become a productive member of society.
I have spoken with student services at [name of college] where he is currently enrolled and [KI] is able to resume his studies if released. This can be done either via the online platform or in person dependent on the health orders currently in place. [KI] has his chromebook at home which is already set up as an online platform.
[KI’s] lapse in judgment for less of a better explanation in June was extremely disheartening for myself as I had just witnessed how much of a change in his life he had made and for the first time in a long time I felt I had my son back. I am extremely disappointed to see him back before the courts after making so many positive steps and now finding himself incarcerated in an adult prison within a few weeks of turning 18. I know [KI] shares my disappointment realising the consequences of his actions and the possibility of undoing his hard work and efforts.
(emphasis added)
Letter from the Offender’s College
Counsel for the offender also tendered a letter from the offender’s college under the hand of the executive teacher dated 31 August 2021. The letter confirms the offender is enrolled as a fulltime year 12 student. It also includes the offender’s progress report for quarter one, semester one of 2021 dated 19 March 2021. It records that the offender was enrolled in the following courses:
(a) Business – Unit 3: Planning for Current Context
(b) Essential English – Unit 1: Comprehending and Responding
(c) Legal Studies – Unit 1: Crime, Justice & Legal System
(d) Essential Mathematics – Unit 3
(e) History – Unit 3: Modern Nations
The progress report notes whether a student’s assessment and attendance is marked as either “satisfactory” or “cause for concern”. It is noted that the offender’s attendance was satisfactory for all courses except legal studies and his assessment was satisfactory for all courses except essential mathematics.
Letter from the Offender
The final document tendered by counsel for the offender was an email from the offender’s AMC address to his counsel in support of the bail application. It states:
- School
- Last time I was in BYJC I was granted bail for two days to attend a funeral, I find this point of great significance because I was just accompanied by my mother and I knew on my return that I would be looking at a lengthy sentence (for someone of my age). But as I should of done and which I did do I complied with all conditions and returned on time.
- If I am granted bail I’m planning to help my mum around the house and my little brother with his school work. I am also planning to indulge in some new positive activities such as fitness, study, helping my mum garden and others which I will take on as they come.
- I’m planning to write a resume and then start to look for a part time job.
- When lock downs are lifted I am going to purchase a gym membership.
- I haven’t had much thought on what I want to do when I’m older I definitely want to attend university at some point. I’d much like to have a job which involves keeping trouble youths out of the justice system so that they don’t become institutionalised and suffer other consequences that come with entering the system.
- The fact that I completed my bail last time with not one breach.
- Looking at my whole history its quite evident that I’ve made some majorly positive changes in my life some of which being that I’ve stopped using drugs (other than cannabis on occasion) which I was using for a lengthy amount of time, I’ve gone back to school which was of great difficulty because I stopped going in year eight and didn’t even attend half of year seven due to truancy, I’ve reconnected with some positive peers from primary school and made some new ones as well, I’ve started staying at home a lot more and reconnecting with my family, I spent my first Christmas out since 2017.
- The difference between this time I’ve been incarcerated compared to others is that I’ve actually lost a lot of stuff I care about and pushed hard to get, which has made me think a lot more about my actions and criticise them. Another big element is that I’m in gaol and not a juvenile centre this time and there is a big difference between the two, I’m with a lot older people and there’s a lot less for me to do positively one thing is not being able to get my year twelve. These circumstances I presume will affect me greatly.
(emphasis added)
Consideration
I note at this juncture that I am satisfied that the offender has breached his good behaviour obligations, by committing and pleading guilty to the fresh offences that are punishable by imprisonment: ss 86(1), 108(1)(a) and 110(1)(b) Sentence Administration Act. The offender has breached both the 22 month good behaviour order that attaches to the suspended sentences and the two standalone 12 month good behaviour orders.
Section 108(2) of the Sentence Administration Act provides the options available to a Court when an offender breaches a standalone good behaviour order. In the present matter, it is appropriate to first deal with the breaches of the 22 month good behaviour order that forms part of the suspended sentences.
Where an offender breaches any of their good behaviour obligations and the good behaviour order was part of a suspended sentence order, the Court must cancel the good behaviour order and either impose the suspend sentence imposed for the original offending or re-sentence the offender: s 110(2) Sentence Administration Act.
In this jurisdiction, there is no presumption in favour of imposition of the sentence that was suspended: Guy v Anderson [2013] ACTSC 5 at [83]; R v BC [2020] ACTSC 308 at [35]. However, the failure of Courts to act where there has been a clear breach of the bond by which the offender avoided being subjected to fulltime imprisonment is likely to bring suspended sentences into disrespect: Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379 at [23] cited in The Queen v PM (No 2) [2015] ACTSC 358 (The Queen v PM (No 2)) at [19] and Saga v Reid [2010] ACTSC 59 at [99]-[101].
As I summarised in R v Collier (No 2) at [43] and as summarised by Refshauge AJ in R v Kelly (No 2) at [15], the facts relevant to the consideration of whether to impose the suspended sentence or re-sentence include:
(a) The proportion of the good behaviour order served before the breach occurred: R v Curtis (No 2) [2016] ACTSC 34 (R v Curtis (No 2)) at [18].
The 22 month good behaviour order for the offender commenced on 15 February 2021 and the fresh offences took place on 21 June 2021. The offender was not yet a quarter of the way through the term of the good behaviour order when the breach occurred.
(b) Any rehabilitation attained prior to the breaching conduct: R v Curtis (No 2) at [18].
It appears that the offender had been complying with his obligations under the good behaviour order prior to the breach and had recommenced attending college. In my view, the offender had demonstrated some rehabilitation. I also note the offender was and is maintaining his abstinence from methamphetamine.
(c) The prospects of further rehabilitation: R v Curtis (No 2) at [18].
I accept that the offender has further significant prospects for rehabilitation. He is eager to get back to completing his year 12 certificate, obtaining a part time job, and improving his physical fitness.
(d) The nature of the offence which breached the order, including whether it is of similar conduct: R v Curtis (No 2) at [18].
I note the fresh offences are of a different calibre to the original offences that the offender received the suspended sentences and good behaviour order for.
(e) The relative seriousness of the offence causing the breach and whether the imposition of the suspended sentence would be disproportionate to the gravity of the breach offending; R v Curtis (No 2) at [18].
While I am not ultimately sentencing the offender for the fresh offences, I can still take into account the relative seriousness of the fresh offences: R v Collier (No 2) at [63]. The fresh offences, while being dealt with in the Magistrates Court, are nevertheless serious.
(f) The actual facts of the matter for which the offender was first sentenced: R v Beniamini (No 2) [2017] ACTSC 32 at [53];
I have referred to the facts of the original offending at [14].
(g) 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: R v Ogilvie (No 2) [2016] ACTSC 265 (R v Ogilvie (No 2)) at [38].
While the fresh offences are serious, as in R v Ogilvie (No 2) at [38], I do not consider that the breaches are so serious that they show the offender has such a disregard of his obligation to be of good behaviour. The offender’s fresh offending was not so contumacious that it demands that the sentence I suspended be imposed.
(h) Whether the offender has received any warnings with respect to the breaches: R v Ogilvie (No 2) at [75].
I note this consideration.
(i) The level of understanding of the offender of his obligations under the terms of the order and the consequences of a breach: The Queen v PM (No 2) at [20]-[22]; and
The offender was able to abide by the terms of the good behaviour order for a period of approximately four months of the 22 month term. I believe the offender understood his obligations and the consequences of a breach when he proceeded to commit the fresh offences.
(j) The nature of judicial and community resources previously devoted to the offender: R v Bennett [2017] ACTSC 104 at [11].
There is nothing in the material before me that would suggest the resources that have been dedicated to the offender are over and above what would normally be expected in such a matter.
The prosecution did not submit that this was an appropriate matter for the Court to impose the period of the suspended sentence to be served. Counsel for the prosecution correctly submitted that it would be more appropriate for the offender’s good behaviour order to be cancelled and for the offender to be re-sentenced in the same terms as he had been in February of this year.
Counsel for the accused similarly submitted that the appropriate disposition would be for the offender to be re-sentenced in the same terms as the original sentence. It was submitted that the commencement date of the suspended sentences under re-sentence should be the date of re-sentence.
Conclusion
I will adopt the approach I outlined in R v Collier (No 2) at [61]. I will therefore deal with the offender’s breach of the 22 month good behaviour order by way of re-sentence, rather than imposing the balance of the suspended sentence. While there are important policy reasons behind the option to impose the balance of the suspended period, there is a recognition in the authorities that justice may require a different response: The Queen v PM (No 2) at [20]; R v Goolagong (No 2) [2021] ACTSC 131 at [148]. Justice in this case favours re-sentence, particularly in circumstances where neither party submitted that the imposition of the suspended period was appropriate and in light of the offender’s subjective circumstances.
I underline that s 110(4) of the Sentence Administration Act confirms that the Sentencing Act applies to re-sentencing in the same way that it applies to the sentencing of an offender on conviction for the offence. I note that I referred to the relevant youth justice principles extensively in R v KI (No 2) at [130]-[137]. The youth justice principles continue to have application in this sentencing exercise because I am re-sentencing on the offences that occurred when the offender was a young person.
In respect of the two standalone 12 month good behaviour orders, I will cancel each good behaviour order pursuant to s 108(2)(f). I must then re-sentence the offender for those offences: s 108(3)(b). For consistency and uniformity with the re-sentencing exercise in respect of the suspended sentences, I will also re-sentence the offender in the same terms for the offence of knowingly resist a territory official and the offence of affray as I did on 15 February 2021. The offender will be re-sentenced to a 12 month good behaviour order for each of those offences commencing on 19 November 2021.
Orders
I make the following orders:
(a) The 22 month good behaviour order dated 15 February 2021 imposed in respect of the suspended sentences is cancelled.
(b) The two 12 month good behaviour orders dated 15 February 2021 are cancelled.
(c) The offender is re-sentenced as follows:
i. In respect of the offence of assault occasioning actual bodily harm (CH 1088/2019), the offender is sentenced to a term of 12 months of imprisonment, commencing on 19 November 2021 and expiring on 18 November 2022.
ii. In respect of the offence of conspiring to escape from custody (CH1092/2019), the offender is sentenced to a term of 10 months of imprisonment, commencing on 16 February 2022 and expiring on 15 December 2022.
iii. In respect of the offence of common assault (CH1085/2019), the offender is sentenced to a term of five months of imprisonment, commencing on 19 November 2022 and expiring on 18 April 2023.
iv. In respect of the offence of common assault (CH1087/2019), the offender is sentenced to a term of five months of imprisonment, commencing on 17 January 2023 and expiring on 16 June 2023.
v. In respect of the offence of common assault (CH1086/2019), the offender is sentenced to a term of five months of imprisonment, commencing on 19 March 2023 and expiring on 18 August 2023.
vi. In respect of the offence of knowingly resist a territory official (CH399/2020), the offender is sentenced to a term of two months and two weeks of imprisonment, commencing on 5 July 2023 and expiring on 18 September 2023.
vii. In respect of the offence of knowingly resist a territory official (CH1090/2019), the offender is to enter into a good behaviour order for a period of 12 months.
viii. In respect of the offence of affray (CH1091/2019), the offender is to enter into a good behaviour order for a period of 12 months.
ix. Pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT), the sentences of imprisonment are to be suspended from today, 19 November 2021. The offender will enter into a good behaviour order for a period of 22 months and comply with the core good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT). The offender is to comply with the following additional condition:
1. The offender is subject to the supervision of the Director-General of ACT Corrective Services for the period of the good behaviour order or such lesser period as determined by the Director-General.
| I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson Associate: Rhiannon McGlinn Date: 19 November 2021 |
1
11
0