R v KS (No 2)
[2022] ACTSC 81
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v KS (No 2) |
Citation: | [2022] ACTSC 81 |
Hearing Date: | 20 April 2022 |
DecisionDate: | 20 April 2022 |
Before: | Elkaim J |
Decision: | See [16] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of Good Behaviour Order |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 108 |
Cases Cited: | R v KS [2021] ACTSC 109 |
Parties: | The Queen ( Crown) KS ( Accused) |
Representation: | Counsel D Swan ( Crown) J Cooper ( Accused) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Aboriginal Legal Service ( Accused) | |
File Number: | SCC 181 of 2020 |
ELKAIM J:
I sentenced KS on 2 June 2021 for breaching a family violence order (R v KS [2021] ACTSC 109). He was sentenced to imprisonment for six months, commencing on 18 March 2021. The imprisonment was suspended after four months provided KS entered into a Good Behaviour Order (a GBO) for 12 months.
KS did enter the GBO but he breached its conditions on 22 October 2021 when he committed a driving offence.
KS pleaded guilty to the driving offence and was sentenced on 9 December 2021. Special Magistrate Hopkins imposed a term of three months’ imprisonment to commence on 22 October 2021, but this term was suspended from 9 December 2021 and a 12 month GBO commenced.
The effect of the above sentence was that he spent a period of time in custody and then became subject to a GBO which will expire in December of this year.
The conviction for the driving offence placed KS in breach of the GBO that had been entered into on 17 July 2021.
The options that I have are set out in s 108(2) of the Crimes (Sentence Administration) Act 2005 (ACT). The range is from a taking no further action to a complete re-sentencing.
The breach occurred only three months into the span of the GBO. On the other hand the driving offence is not connected with the original offending and KS has been punished for the driving offence.
The offender was born in 1983. He has accumulated a significant criminal history both in the ACT and in New South Wales.
The pre-sentence report says that the offender has not been compliant with GBOs. Sometimes he reschedules at the last minute, other times he simply does not attend.
The offender is a local indigenous man. His father was abusive. He became homeless when he was 13 years of age, although eventually re-joined his mother. He has three children of his own, but is no longer in a relationship with their mother. The children live with their maternal grandmother. The offender has regular phone contact with them. Further details of the offender’s background can be found in my 2021 reasons.
The offender clearly has a major problem with drugs. The question that arises is what to do with him now.
I do not think the option of taking no further action is available. He must understand that breaching a GBO is a matter not to be taken lightly.
He must also understand that the action I am taking might be viewed as “lenient”, but it is a message to him that he must in future comply with his legal obligations.
After the benefit of discussion with the legal representatives, who have assisted me in reaching the conclusion that I have reached, I have decided that the appropriate course is to re-sentence the offender to a term of imprisonment of two months but then to suspend that term with immediate effect on condition that he enter a GBO for a period of 18 months.
I have chosen 18 months because it provides some extension to the already existing GBO. I have also chosen the period of two months because that is the amount outstanding of the original prison sentence.
I make the following orders:
(a)The offender is re-sentenced to a term of imprisonment of 2 months, to commence today and end on 19 June 2022.
(b)The above sentence of imprisonment is suspended with immediate effect, on the condition that the offender enter into GBO with core conditions for a period of 18 months from today.
| I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: |
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