R v Law
[2021] ACTSC 351
•2 August 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Law |
Citation: | [2021] ACTSC 351 |
Hearing Date: | 23 July 2021 |
DecisionDate: | 2 August 2021 |
Before: | Refshauge AJ |
Decision: | 1. William Thomas Law be convicted of aggravated dangerous driving and be sentenced to 15 months imprisonment to commence on 27 July 2021 and end on 26 October 2022. Mr Law be disqualified from driving for 12 months from 18 October 2021. 2. William Thomas Law be convicted of drive while disqualified and be sentenced to 4 months imprisonment to commence on 27 September 2022 and end on 26 January 2023. Mr Law be disqualified from driving for 24 months from 18 October 2021. 3. William Thomas Law be convicted of trespass and be required to sign an undertaking to comply with the offender’s good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 3 months, from today, 2 August 2021, until 1 November 2021. 4. William Thomas Law be convicted of minor theft and be sentence to 2 months imprisonment to commence on 27 January 2023 and end on 26 March 2023. 5. A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for William Thomas Law for 18 months from today (commencing on 2 August 2021 and ending on 1 February 2023) in respect of the primary offence of aggravated dangerous driving of which he has been convicted and for which he has been sentenced to 15 months imprisonment. 6. That Order be extended to the offences of drive while disqualified and minor theft, of which William Thomas Law has been convicted and for which he has been sentenced, and which are associated offences of the primary offence. 7. It be noted that convictions for the primary offence and the associated offences have been recorded and that sentences have been imposed for each of them, which convictions and sentences be hereby incorporated into the Drug and Alcohol Treatment Order in the custodial part of the Order. 8. The custodial part of the Drug and Alcohol Treatment Order for the primary and associated offences be hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 2 August 2021, until 26 March 2023. 9. Under ss 22 and 80ZA of the Crimes (Sentencing) Act 2005 (ACT), William Thomas Law be required to sign an undertaking to comply with the offender’s good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the 2 February 2023 until 26 March 2023, with a probation condition that he accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him including as to urinalysis, counselling and treatment. 10. For the treatment and supervision part of the Drug and Alcohol Treatment Order: a. The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed; b. William Thomas Law travel directly from this Court today to Canberra Recovery Services, Fyshwick, by means provided by Alcohol and Drug Services, and admit himself to the residential drug rehabilitation program at that facility by 1:00 pm today, 2 August 2021; c. William Thomas Law be directed to complete the residential drug rehabilitation program at Canberra Recovery Services, to not leave the facility until he has completed the course and to comply with all the directions of the person in charge of the program and all the rules of the program and the facility; d. Should William Thomas Law leave or be discharged from the program before completing it, he report to ACT Corrective Services by 4 pm on the next business day with a view to having his Drug and Alcohol Treatment Order reviewed; e. William Thomas Law undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where he resides, with whom he associates and his attendance from time to time; and f. William Thomas Law comply with any directions of the Court from time to time about attendance at Court in person or by electronic means. 11. William Thomas Law be directed to appear by electronic means in Court on Friday 13 August 2021 at 12:30 pm. 12. William Thomas Law be directed to attend the Court Registry before he leaves the Court precincts to sign a sealed copy of this Order, the Good Behaviour Orders and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this Order is in force. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated Dangerous Driving as a Repeat Offender – Driving While Disqualified as a Repeat Offender – Trespass – Minor Theft Sentences of Imprisonment Imposed – Severe Substance Use Disorder – Rehabilitation – Drug and Alcohol Treatment Order |
Legislation Cited: | Criminal Code 2002 (ACT), s 321 Crimes (Sentencing) Act 2005 (ACT), ss 10, 12A, 22, 33(1), 46J, 46K, 63, 80W, 80Y, 80ZA, 85 Road Transport (Safety and Traffic Management) Act 1999 (ACT), ss 7, 7A |
Cases Cited: | Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 Matruglio v Garrett [2012] ACTSC 110 Singh v The Queen [2017] ACTCA 17 |
Parties: | The Queen ( Crown) William Law ( Offender) |
Representation: | Counsel C Wanigaratne ( Crown) J Cooper ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Aboriginal Legal Service NSW/ACT ( Offender) | |
File Numbers: | SCC 147 of 2021 SCC 148 of 2021 |
REFSHAUGE AJ:
Introduction
Traffic offences are often regulatory and for that reason are often considered not to be truly criminal offences, not real crimes. Of course, this is not correct. They are criminal offences: see Matruglio v Garrett [2012] ACTSC 110 at [22]. Indeed, many of them do great damage to the community, or have the potential do so. A motor vehicle is, after all, potentially a lethal weapon. We only have to consider the road toll. Motor vehicles are, of course, a great contribution to civilisation, as explained in R v Seymour [2021] ACTSC 152 at [1], but these two considerations need careful balancing; hence, the need for regulation. As a result, the sentencing for traffic offences attracts ordinary sentencing principles and a record of traffic convictions has the same negative effect as would a record of other offending.
Now appearing before me for sentence is William Thomas Law, who has pleaded guilty to offences of aggravated dangerous driving as a repeat offender, driving whilst disqualified also as a repeat offender, trespass and minor theft. Mr Law has also asked me to make a Drug and Alcohol Treatment Order (Treatment Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
On sentencing, the Crown tendered the Crown Tender Bundle which, attached to the prescribed cover sheet, contained the committal and transfer documents, including the Magistrates Court bench sheets; the Agreed Statement of Facts; Mr Law's Criminal History; and the warrant of the Sentence Administration Board setting out the order of the Board cancelling a Parole Order to which he had been subject.
It also included a Drug and Alcohol Treatment Assessment dated 15 July 2021 of ACT Corrective Services, a Drug and Alcohol Sentencing List Suitability Assessment dated 16 July 2021 of the Alcohol and Drug Services and a Drug and Alcohol Sentencing List Cultural Assessment dated 15 July 2021 of the Aboriginal Liaison Officer of the Alcohol and Drug Services, as well as a Case Plan and additional progress report dated 2021 of the Alcohol and Drug Services, all of which are Drug and Alcohol Treatment Assessments (Suitability Assessments) made under s 46J of the Sentencing Act.
Mr Law tendered a certificate of completion by him of the Solaris Therapeutic Community program, together with an email reference of the team leader of the Therapeutic Community team; a letter from Karralika Program Inc., which partners with the Alexander Maconochie Centre (AMC) in the conduct of the Solaris Therapeutic Community; and a copy of his relapse prevention plan.
No objection was taken to the tender of any of this material by either party and there was no challenge to the contents of any of them.
The facts
On 6 July 2020, Mr Law drove his vehicle into the underground carpark of an apartment complex in Wanniassa, ACT.
On 18 April 2019, he had been convicted of driving with a prescribed drug in his oral fluid and other offences and, as part of the sentence, was disqualified from holding or obtaining a driver licence for two years from that date; that is, to 17 April 2021.
On 4 June 2021, he had been convicted of driving whilst disqualified and was disqualified from holding or obtaining a licence for 24 months from that date; that is, until 3 June 2023.
10. Accordingly, he was, at the time of driving, a disqualified driver. Having been convicted of the same offence on 4 June 2021 within five years of the present conviction that must be entered on his plea of guilty, he is, for the purposes of this offence, a repeat offender: s 32(9) of the Road Transport (Driver Licensing) Act 1999 (ACT) (Driver Licensing Act).
11. He was not authorised to enter the car park and so, in doing so, he committed a trespass on the premises. He parked his vehicle and alighted. He walked to another vehicle owned by a resident in the apartments. He used a screwdriver to unscrew the number plates to that vehicle, returned to his car and then left the car park with the number plates. The replacement value for the plates was $194.50. It was helpful and appreciated to have that value provided in the Statement of Facts, as it is not always included. These events constituted the offence of minor theft.
12. When the vehicle owner found that the number plates on his car had been stolen, he notified police who accessed the CCTV footage from the carpark and Mr Law was identified from it.
13. In the midmorning of 7 July 2020, police saw Mr Law driving his motor vehicle in Wanniassa. The police officer, aware that Mr Law was not licensed to drive at that stage, followed him and activated his emergency lights and siren in an attempt to stop him. Mr Law immediately accelerated away and drove through the suburb along suburban streets, with residences on either side, until he came to Sulwood Drive, with residential premises also lining that street. The police officer drew alongside Mr Law's vehicle and through the open window of Mr Law's vehicle, had a clear and unobstructed view of Mr Law, identifying him as the driver.
14. Mr Law then sped away into Athllon Drive, moving at speed onto the incorrect side of the street, requiring oncoming traffic to take evasive action to avoid a collision. Mr Law then drove his vehicle into an intersection against a facing solid red traffic light. He reached a speed of not less than 120 km/h in the part of the drive for which the speed applied under a speed limit sign was of 80 km/h.
15. He then sped through another intersection, against another solid red traffic light, appearing briefly to lose control and narrowly avoiding colliding with another vehicle. Police then terminated the pursuit.
16. Police estimated that there were well over 20 pedestrians walking in and around the area through which Mr Law had driven, including children on school holidays and elderly persons.
17. This driving constituted the offence of aggravated dangerous driving.
18. Mr Law had been convicted on 18 April 2019 of aggravated dangerous driving and so was, for this offence, a repeat offender: s 7A(4) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (Traffic Management Act).
19. Because of the nature of the driving, it was an aggravated offence in that he exceeded the applicable speed limit by more than 30%(s 7A(1)(a)(v) of the Traffic Management Act) and that his manner of driving put at risk the safety of vulnerable road users (s 71(1)(a)(vi)), which includes pedestrians (s 7A(4)).
20. Mr Law was arrested on 19 August 2020 and charged with the offences of aggravated dangerous driving and driving whilst disqualified. He appeared in the ACT Magistrates Court the next day and was granted bail.
The proceedings
21. As noted (at [20]), Mr Law first appeared in Court on 20 August 2020. He pleaded not guilty and was released on bail. The proceedings were relisted twice, however, and, on 4 June 2021, bail was revoked and he was remanded in custody. The matter was listed for hearing on 7 and 8 June 2021. It was indicated that further offences would be preferred, but also that it was expected that the matter would resolve before the hearing date. That date was later vacated.
22. On 15 June 2021, the offences of trespass and minor theft were also preferred, and he pleaded guilty to all of the offences with which he had been charged. He was committed for sentence to this Court with an expectation that he would appear in the Drug and Alcohol Sentencing List. An Eligibility Assessment was ordered. He remained in custody.
23. Mr Law then appeared in this Court on 18 June 2021, when, on the recommendation of the Eligibility Assessments, the Court ordered Suitability Assessments and listed the matter for sentencing. Mr Law was remanded in custody until the sentencing on 23 July 2021, when he was further remanded in custody until today.
24. Mr Law had been in custody for two days when arrested before bail was granted. On 4 June 2021, the bail was revoked, but he had earlier been returned to custody on 8 April 2021, after his Parole Order was revoked by the Sentence Administration Board and warrant issued on 2 February 2021. That sentence ended on 30 July 2021, at which time he was no longer subject to any other sentencing order.
25. After appearing in this Court, he remained in custody until today. That is, a total of six days of Pre-Sentence Custody which is applicable to these offences. The not inconsiderable time he has spent in custody before sentence was serving the balance of the earlier sentences imposed on him for other offences. This should not be counted in the Pre-Sentence Custody. The six days, therefore, must be taken into account in the sentence to be imposed.
The offences
26. In order to impose a just and adequate sentence, it is necessary to have regard to the facts as set out above (at [7]-[20]), but also a number of other matters set out in s 33(1) of the Sentencing Act.
27. The first matter, s 33(1)(a), is the nature and circumstances of the offence. Clearly the facts are integral to that, as is the maximum penalty of the offence - an essential matter to consider when deciding how to view the offence and its seriousness: see Markarian v The Queen [2005] HCA 25; 228 CLR 357.
28. Most offences span a wide range of circumstances under which they are committed, what consequences they have and the like. The relevant considerations may, as for example in this case where the offence of dangerous driving is an aggravated offence, be set out in the statute establishing the offence. Even there, of course, there is a range and the consideration of the courts, as shown by current sentencing practice (s 33(1)(za) of the Sentencing Act), will identify these matters for the sentencing court. This is very important for, as the High Court said in Hoare v The Queen (1989) 167 CLR 348 at 354, the sentence “should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances”.
29. Aggravated dangerous driving is an offence under s 7 of the Traffic Management Act and is an aggravated offence by virtue of s 7A. For a repeat offender, the legislature has prescribed the maximum penalty of imprisonment for 5 years, a fine of $80,000 or both.
30. The offence has been considered in a number of decisions, including Kelly v Ashby [2015] ACTSC 346; R v Whyte [2002] NSWCCA 343; 55 NSWLR 252; R v Williams [2017] ACTSC 298; R v Lyons (No 1) [2020] ACTSC 358; R v Massey (No 3) [2021] ACTSC 156; and R v Seymour.
31. These, and other decisions, show that in addition to the specified circumstances of aggravation, the presence of matters such as the following will aggravate the offence:
(a)whether other road users were put at risk; the number of them and their vulnerability, so that if they were children or the frail, elderly, as well as vision‑impaired people it would render the offence more serious;
(b)the manner of driving, especially matters such as driving in an oncoming lane on the incorrect side, driving on the footpath or where pedestrians travel, driving through solid red lights, red traffic lights, stop signs or through give way signs without looking;
(c)the distance driven and the period of driving;
(d)whether the area was a residential one with adjacent residences, through a busy commercial area, especially with shared road user zones, would also make the offence more serious;
(e)whether the vehicle’s speed exceeded the speed limit and did not have regard to the applicable conditions;
(f)whether there are passengers in the car, especially if young children;
(g)failing to stop when directed by police, and even more serious, when engaging in a pursuit from police by racing on a public street would also be serious;
(h)whether the offender was intoxicated by alcohol or other drugs and the degree of intoxication; and
(i)whether there was competitive driving, racing on a public street or showing off; and, any damage done by any collisions with other vehicles, objects, houses or, indeed, people.
32. In this case, there were pedestrians, including vulnerable persons, especially children, present. Other drivers were also put at risk by Mr Law driving on the wrong side of Athllon Drive. Mr Law drove at speeds of up to 120 km/h, narrowly avoiding colliding with other motor vehicles and drove through two solid red traffic lights at intersections. The driving was very serious. All these made it a serious version of the offence.
33. Driving whilst disqualified is an offence against s 32(1)(a) of the Driver Licensing Act which sets a maximum penalty, where the offender is a repeat offender, of 12 months imprisonment, a fine of $16,000 or both. There is also an automatic disqualification of the offender from holding or obtaining a driver licence for 24 months or such longer period as the court may order.
34. Under s 69 of the Road Transport (General) Act 1999 (ACT), where there are multiple disqualifications imposed, whether or not by court order or at different times, they are cumulative upon each other, unless the court otherwise orders.
35. This offence was carefully considered in Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299. The number of prior offences of the same type aggravates the offence. Consideration must also be given to whether it is contumacious driving; that is, willfully disobedient to the court's order. That can be proved by the offender knowing that he is prohibited from driving or has no reasonable excuse for doing so. It is also aggravated where the driving was associated with the commission of other offences, though it must be careful not to engage in double sentencing. It is relevant to know the length of time and the distance driven, as well as how recently the disqualification was imposed. The manner of driving can also be relevant, although again, care must be taken to avoid double sentencing.
36. In this case, Mr Law has a large number of prior convictions for driving whilst not being licensed, either through disqualification or suspension. He has, for some of these offences, been sentenced to terms of imprisonment. There can be no doubt that he knew that he was not permitted to drive and the offence was contumaciously committed.
37. The length of driving is not entirely clear. It would have been some kilometres, notably into double figures of kilometres, but not a great distance or period of time. Mr Law was trying to escape from police and was driving dangerously. While this is a separate offence, it is relevant, though care must again be taken not to impose overlapping sentences.
38. Trespass is an offence against s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth) and attracts a maximum penalty of $1,600. The trespass was relatively brief, although for the purposes of theft. It could, therefore, have possibly been charged as a burglary, but that is not so and this shall not be considered any further.
39. Minor theft is made an offence by s 321 of the Criminal Code 2002 (ACT) for which the maximum penalty is 6 months imprisonment, a penalty of $8,000 or both. The significant factor is the value of the property stolen. Here, whilst the monetary value was not great, it would have prevented the owner from driving his vehicle until the plates had been replaced, which would all have caused considerable inconvenience.
Subjective circumstances
40. The Court must next consider the matters personal to Mr Law. These are important to be known and taken into account, many of which will be directly relevant to the sentence to be imposed.
41. Mr Law is a Wiradjuri man born 39 years ago in Canberra, where he has lived ever since. He is the eldest of his parents' six children.
42. He had an unremarkable childhood, although his stepfather was strict and, indeed, inflicted physical punishments of great severity so that his childhood was not particularly happy. His stepfather, however, instilled, he said, good values in him.
43. It was reported that he completed Year 10 at school, but left the following year as his stepfather required him to enlist in the Australian Army, which he did.
44. One of the Suitability Assessments reported that he had completed Year 12 at college. This is also what this Court found when considering an appeal from a sentence imposed on him in the Magistrates Court: see Law v Ilievski [2016] ACTSC 291 at [59]. The exact nature of his completion of studies is not necessarily important, but it is clear that Mr Law had academic ability, although he is not necessarily a very accurate historian.
45. He generally liked the army, but left voluntarily when he was 21 years old. This seems the correct chronology. Since leaving the army, he has had no full-time or permanent work, it was reported, but he has had some casual or short-time employment as a labourer. Again, there was some discrepancies, as it was found in Law v Ilievski at [59]-[61], presumably based on the Pre-Sentence Report there provided for the Court, that he had been employed as a removalist for 10 years; it may be that this was casual work. It was also said that he had ‘a good income from his employment’. That decision also found there were some discrepancies between what Mr Law reported and what the agencies reported: see, for example, Law v Ilievski at [63] and [66].
46. He did not know that his stepfather was not his biological father, who had died, until his stepfather told him later. He reported that it affected his emotional state considerably. He has generally positive relations with his mother and his siblings.
47. He has had a number of close personal relationships. The first lasted for about 4 years and his partner gave birth to a daughter, now 14 years old. Mr Law's partner could not look after her so he gained custody, but his drug use and crime made that untenable, so she has been in the custody of his brother for some years now. He maintains contact with his daughter and wishes to re-establish a closer relationship if he manages to be successful in his rehabilitation.
48. Mr Law's alcohol use began with the consumption at age 16 and he has continued drinking, especially into his twenties, but continuing after this. His recall does not completely coincide with Canberra Health Services' records, which suggests heavy drinking as recently as 2021, averaging 14 standard drinks on each occasion.
49. He first smoked tobacco when he was 27 years old and currently smokes a packet of rolling tobacco a week.
50. His other drug use began with cannabis when he first smoked at age 14 or 15. It gave him symptoms of paranoia, however, so he used it irregularly, though for a while he was smoking six to eight cones mixed with tobacco each day. He says that he last smoked in about 2018. Since then, he has used cocaine once or twice in his early thirties and used MDMA (ecstasy) socially from about age 28 to 29 at weekends, but ceased use about 6 to 8 years ago.
51. He also began using speed (amphetamines) at age 28 to 29; again, generally at weekends when he would use 5 to 6 tablets, but he also gave it up about 6 to 8 years ago.
52. He has used GHB 4 or 5 times when he was 36 years old, but he did not like it. He briefly used steroids also, in this case when he was training, around aged 32, but only for about 6 weeks.
53. He has used some heroin, but was prescribed methadone to address its use. After being medicated with methadone for between five and six years, he transferred to Buvidal for a matter of a month and then ceased pharmacotherapy.
54. His drug of choice recently has really been methylamphetamine or ice. He first used it when he was 34 years of age. At the height of his use, he was smoking a gram a day and otherwise about half a gram a day. Again, his last reported use was in November 2020, but Canberra Health Services' records show use on 8 April 2021. At that time, it is reported that he was using one point, that is 0.1 grams, once a week.
55. Apart from pharmacotherapy, he has had no alcohol or other drug therapy in the community. He participated in the Solaris Therapeutic Community in the AMC for eight months in 2019. He recommenced in the program on 28 April 2021, and as noted above (at [5]), has completed that program. The reference from the AMC concerning his participation is positive. The reference, which was unsolicited, reported that he has “been a valued participant and has been a lead for his peers”. He is reported as having, “commitment to his recovery”, and the author commented, “I sincerely commend him”.
56. Similarly, the reference from Karralika Programs Inc. reported that he, “has been seen to be supporting his peers”, and that he, “consistently engages with staff in a respectful manner and often seeks support and guidance”.
57. His relapse prevention plan is comprehensive and thoughtful. The words he used are positive, though, of course, they have to be translated into action. He comments that he needs to, “put myself first for once as I have lost time to negative behaviours and stupid decisions”. He recognises that, “it is a journey”.
58. Mr Law was diagnosed as suffering from depression in 2016 on entry into custody, perhaps unsurprisingly. He was prescribed medication but is assessed as having no relevant symptoms at this time. Mr Law has no physical illnesses or disabilities.
59. He has a very depressing criminal history. It was described in Law v Ilievski at [69] as ‘concerning’ and then it constituted 36 offences. He has since accumulated a large number of further offences. Indeed, the decision in 2016 in the Magistrates Court concerned 27 offences alone.
60. He has now 113 offences on his record. Relevantly, the offences since 2015 do not include any serious dishonesty offences, such as burglary, and are mainly offences related to driving, not including offences of dishonestly taking motor vehicles without the owner's consent, however.
61. Since 2015, he has, apart from traffic offences, committed only one conviction each for common assault and minor theft. Still, he has committed 16 offences for driving without authority in various forms: driving while licence suspended or while disqualified from holding or obtaining a licence and driving while unlicensed.
62. He has 10 offences of theft on his record and two of minor theft, but none of trespass. He has been convicted only once before, on 18 April 2019, for dangerous driving.
63. The criminal record shows some recent signs of different and less serious criminality, which may be consistent with his wish to rehabilitate, though it is still quite a serious record which incarceration has done little to stem.
Sentencing practice
64. In addition to considering the nature of the offences for which sentence must be imposed as described above, assessment through consideration of current sentencing practice is another way in which current sentencing practice can be relevant through the mandated consideration under s 33(1)(za) of the Sentencing Act,. This is to consider what has been called “the collective wisdom of other sentencing judges” (R v Ellis (1993) 68 A Crim R 449 at 460) as to the sentences that are appropriate.
65. This is sometimes achievable by consideration of sentencing statistics, such as are available from the ACT Sentencing Database, though they have considerable limitations which, however, do not render them inappropriate as a source of relevant information: see R v Matthews [2020] ACTSC 364 at [45].
66. The other and often more important and helpful source of current sentencing practice is by way of comparable decisions of sentencing judges and appellate courts, preferably in this jurisdiction. These can often help to establish the principles by which sentences can properly be constructed to give a just and adequate sentence.
67. In this case, counsel for the Crown most helpfully provided three decisions of this Court which assisted in considering the appropriate sentence for the most significant offence of aggravated dangerous driving. They are R v Goolagong (No 2) [2021] ACTSC 131, R v Collins [2019] ACTSC 302 and R v Williams [2017] ACTSC 298.
68. In the first decision, Mr Goolagong faced two counts of aggravated dangerous driving, in both of which he appeared to be a repeat offender. In the first offence, he drove away from an apparent crime scene. He drove fast, about 100 km/h in a zone with a signposted speed limit of 60 km/h. He swerved across the road and continued driving, despite being directed by police to stop. He drove through residential suburbs while pursued by police and caused his vehicle to collide with a police vehicle on a number of occasions, causing significant damage.
69. For the second offence, Mr Goolagong again drove from a crime scene and fled from police who pursued him. He drove at excessive speed, again through residential suburbs, and failed to stop when signaled to do so. He drove through a solid red light at an intersection.
70. Mr Goolagong was an Aboriginal man aged 27 years, one of 16 siblings, but adopted at age two by a maternal aunt. He suffered from considerable childhood disadvantage. He had a drug and alcohol dependence and suffered from Attention Deficit Hyperactivity Disorder. He was also diagnosed with fetal alcohol syndrome. He showed considerable remorse. He had an extensive criminal history and he was at conditional liberty at the time of offending. He was sentenced to imprisonment for one year and seven months for each offence.
71. The offences seem not dissimilar to that which Mr Law has committed. Mr Goolagong was sentenced for 16 other offences at the same time. There was some greater seriousness perhaps in the offences, particularly given his collisions with police cars. Overall, the offences for which he was totally sentenced resulted in a sentence of five years imprisonment with a non-parole period of two years and seven months. Accordingly, there was considerable concurrence amongst the sentences.
72. In the case of Mr Collins, he drove a stolen motor vehicle and, despite a direction to stop by police and also the deployment of a tyre deflation device, kept driving. Mr Collins, however, drove away at high speed along a footpath, which caused pedestrians to take evasive action.
73. Mr Collins was 28 years old with a supportive childhood and family life. He used drugs from age 19 and got involved with antisocial activities. He, too, was on conditional liberty at the time of the offending. The learned judge held (at [32]) that he was at the “crossroads in his life” at the time of offending.
74. Mr Collins, too, was sentenced for seven other offences. He was sentenced to one year and three months imprisonment for this offence. Mr Collin’s offence seems rather similar to that committed by Mr Law, although it was, in Mr Law's case, his own vehicle. These two cases seem quite comparable. It is not clear the cause of the disparity in the sentences as compared with those imposed on Mr Goolagong, though it is not greatly significant.
75. In the third case, Mr Williams was charged with two offences of aggravated dangerous driving. In the first, he was, at 3:50pm, approached by police attempting to execute a first instance warrant. He escaped into a vehicle and, after ramming and damaging a police vehicle and driving at a police motorcyclist, drove away. Police directed him to stop a number of times, but he ignored them and continued to drive away at high speed. He drove through a residential suburb where there were a number of pedestrians present.
76. The decision records (at [16]) that, “the manner of the offender’s driving was dangerous in light of the nature, condition and use of the road, as well as the amount of traffic on the road at the time”. There was no indication of the actual speed at which he was driving. This is all, unfortunately, a little opaque for making a comparison, though some of the factors making the driving dangerous were mentioned and were similar to those in this case.
77. For the second offence, police approached Mr Williams after a complaint from the public. He drove out of a residence with a passenger. As he was doing so, police approached and there was a minor collision between the vehicles. The passenger then got out and left. A police officer got out of the vehicle and approached Mr Williams' vehicle, but Mr Williams accelerated towards the officer, striking him and causing him to fall on the bonnet of the vehicle. He then continued to drive away, accelerating through the nature strip, weaving between the trees, and again colliding with a police vehicle. The vehicle was eventually boxed in by police and Mr Williams was arrested.
78. Mr Williams was 34 years old with limited schooling and a long and entrenched drug use habit, though with some attempts at rehabilitation. It is not clearly stated, but it appears that he had an extensive criminal history.
79. Mr Williams was also sentenced for 18 other offences, as well as a breach of a Good Behaviour Order. For the aggravated dangerous driving offences, he was sentenced to five months imprisonment for the first offence and four months imprisonment for the second. It is not at all clear why the sentences were apparently so lenient compared to other sentences, for example, the ones already mentioned in these remarks referred to earlier. The only indication is the rather opaque comment (at [54]) that the first incident was “in the mid‑range of objective seriousness for this offence” and the second was appropriate for a lesser sentence, “having regard to the fact that there were no pedestrians, other than pursuing police on the street” (at [67]). It seems, with due respect, that Mr Williams was treated leniently.
Consideration
80. As pointed out by the Court of Appeal in Singh v The Queen [2017] ACTCA 17 at [93], a sentence must be just and adequate. In order to achieve that, the sentencing court must, as well as considering all the relevant factors that are required to be taken into account, especially those set out in s 33(1) of the Sentencing Act, have regard to the objects and purposes of any sentence. In this jurisdiction, these are helpfully set out in ss 6 and 7 of the Sentencing Act.
81. Thus, the seriousness of the offending, especially the offence of aggravated dangerous driving, requires an element of punishment in the sentence. It is important that such conduct is shown to be unacceptable in the community, so that other members of the community be deterred from behaving in this way. Those purposes apply in varying degrees for the other offences as well.
82. The rehabilitation of Mr Law is also an important consideration, together with the setting of standards of behaviour through punishment and the general deterrence, to which both have been referred. Rehabilitation, if it can be achieved, will be “the most durable guarantor of community protection” (Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 536-7; [32]) and is also a mandated purpose of sentencing.
83. Mr Law has committed versions of all of the particular offences earlier in his history, save for the offence of trespass, though his prior burglaries all include, as an element, the trespassing on the premises of other people. This continued re-offending, as well as the unacceptability of his offending, requires an element of specific deterrence of Mr Law in the sentence.
84. Apart from the owner of the number plates which he stole, there are no direct victims of Mr Law's offending in the usual sense, but the other motorists and pedestrians using the road and the owners in general of the underground carpark into which he trespassed are victims. He put the former victims in danger and infringed their and the latter's rights. This harm must be recognised and Mr Law made accountable for his actions. Although there were no Victim Impact Statements provided, the Court can, in general terms, understand the nature of the harm caused for the victims, so as to take it into account.
85. In all, the sentence must be crafted to be constructively adapted to Mr Law's situation, circumstances and future.
86. Mr Law was on parole for dishonesty offences and varying driving offences, especially, and worryingly, for aggravated dangerous driving, at the time of committing these offences. This requires a more severe sentence. The purpose of parole is to alleviate the severity of the sentence and to permit a degree of rehabilitation of an offender through the reintegration of him or her into the community. Thus, as pointed out in R v Tran [1999] NSWCCA 109 at [15], the commission of offences while on conditional liberty is a betrayal of that opportunity and a breach of the trust offered him to be in the community. This requires a more severe sentence to recognise this. The Court shall proceed accordingly.
87. Mr Law has pleaded guilty. This is, of course, a relevant factor that must be taken into account. Mr Law pleaded in the Magistrates Court, which is a relatively early plea. It was entered after a hearing date had been set following his pleas of not guilty; thus, the prosecution had to prepare a Brief of Evidence. Nevertheless, no hearing had to be held and, although that plea was indicated a week prior to the hearing date, the hearing date was vacated some three days prior to the hearing. No witnesses, accordingly, had to be called. This requires a moderation of the sentence, as the utilitarian value of such a plea is significant. The plea was also indicated, following negotiations as to the charges between the parties, and this is also relevant. To some extent the plea is also evidence of his remorse and reinforces the desire he has expressed for reform. This is also evidenced, in part, through his consent to the making of a Treatment Order.
88. The nature and circumstances of the offences as earlier described, the personal circumstances of Mr Law as also described, that the crimes did, in some cases, cause direct harm to certain of the victims and that Mr Law has accepted responsibility for these are all taken into account. Further account is taken of the other matters that have been set out in these reasons. In the circumstances, however, no other sentence but a sentence of imprisonment is appropriate: s 10 of the Sentencing Act.
89. There are, of course, multiple offences. A fair and proper sentence must be imposed on each offence separately and the length of each of them has been carefully considered to ensure that it is just and adequate and that Mr Law is not punished twice.
90. Consideration has also been given to whether the sentences should be partly or wholly concurrent, for example, because they are part of the same course of conduct or contain common elements. That applies especially in the case of the two driving offences, which are part of the same course of conduct, and the trespass and theft, which are part of another course of conduct. There are also similar elements in the aggravated dangerous driving and the driving whilst disqualified.
91. The length of the total term of the sentence arrived at has then been considered to ensure that the principle of totality is respected and that the total sentence adequately reflects the criminality of the offences committed, but no more than that, and that the total sentence is not excessive, but will leave open the realistic prospect of reform and maintain the hope required for Mr Law to take an effective part in the community, to reconnect with his daughter and to realise his other aims when he is released. This may result in what is seen by some as leniency, in that some of the sentences are made concurrent, but, while the total criminality of Mr Law is an important factor, his growing awareness of and commitment to the need for rehabilitation is also important. Thus, it requires a sentence proportionate to his culpability for the crimes, the effect on the community, but also Mr Law's subjective circumstances and the value of his reform, both to the community and to himself.
92. In imposing the sentences, the time he has already spent in custody prior to sentence must be taken into account under s 63 of the Sentencing Act by backdating the sentence for that purpose.
Sentencing
[His Honour then spoke directly to the offender]
93. Mr Law, please stand.
94. The orders of the Court are as follows:
(1) You are convicted of aggravated dangerous driving and sentenced to 15 months imprisonment, to commence on 27 July 2021 and end on 26 October 2022. Had you not pleaded guilty, you would have been sentenced to 18 months imprisonment. You are disqualified from holding or obtaining a driver licence for 12 months concurrent with your licence disqualification for the offence of driving whilst disqualified of which you are convicted today.
(2) You are convicted of driving whilst disqualified and sentenced to four months imprisonment, to commence on 27 September 2022 and end on 26 January 2023. That is to be cumulative as to three months on the sentence for aggravated dangerous driving. Had you not pleaded guilty, you would have been sentenced to six months imprisonment. You are also disqualified from holding or obtaining a driver licence for two years cumulative on your current licence disqualification.
(3) You are convicted of trespass and required to sign an undertaking to comply with the Good Behaviour Obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of three months from today, 2 August 2021, until 1 November 2021.
(4) You are convicted of minor theft and sentenced to two months imprisonment, to commence on 27 January 2023 and end on 26 March 2023. That is to be fully cumulative on the offence for driving whilst disqualified. Had you not pleaded guilty, you would have been sentenced to three months imprisonment.
95. You may be seated.
Drug and Alcohol Treatment Order application
96. As noted above (at [2]), Mr Law has sought that a Treatment Order be made and therefore that will next be considered. First, the Court must consider whether he is eligible for such an Order, as set out in s 12A of the Sentencing Act.
97. The sentence for the offence of aggravated dangerous driving is imprisonment for 15 months and therefore is greater than the minimum period of 12 months imprisonment to which an offender must be sentenced to be eligible. The total sentence of 20 months, however, is not greater than the maximum period of eligibility, namely four years imprisonment. Further, Mr Law is not subject to any other sentencing order within the meaning of s 12A of the Sentencing Act. It is also satisfactorily established that he will be a resident in the ACT for at least 20 months.
98. It is clear from the Suitability Assessments that Mr Law has a severe substance use disorder which means that he is dependent on illicit drugs, specifically methylamphetamine, and that his dependence substantially contributed to his offending on this occasion. The evidence satisfactorily shows that the Treatment Order regime has been explained to him and that he has had an opportunity to ask any questions about it and had any such questions answered. The Court is satisfied that he has given informed consent to the making of a Treatment Order. Accordingly, Mr Law is eligible to be subject to a Treatment Order.
99. I have carefully read the Suitability Assessments, including the Cultural Assessment referred to above (at [4]). They are always expertly and very professionally prepared and are invaluable to this Court in making the important decision of whether to make a Treatment Order and of great assistance to that task. All of them recommend that Mr Law is suitable to be subject to a Treatment Order and their recommendations and all the evidence satisfactorily shows that this is appropriate.
The Alcohol and Drug Services has prepared a comprehensive Case Plan which is appropriate and adequate to address the issues which Mr Law must face if subject to a Treatment Order.
There are no indicators of unsuitability, as set out in table 46K of the Sentencing Act, that would render Mr Law unsuitable for a Treatment Order.
Accordingly, it is satisfied that Mr Law is suitable for a Treatment Order and that it is appropriate that one be made.
Finally, it is noted that, although the total sentence of imprisonment has commenced six days before today so that it has, in part, been already served and must now be suspended, that does not prevent Mr Law from being subject to a Treatment Order for the reasons set out in R v Crawford (No 1) [2020] ACTSC 245 at [91]-[111].
Drug and Alcohol Treatment Order
[His Honour then spoke directly to the offender]
Mr Law, please stand again.
(5) A Drug and Alcohol Treatment Order be made under s 12A of the Crimes (Sentencing) Act2005 (ACT) for 18 months from today, commencing on 2 August 2021 and ending on 1 February 2023, in respect of the primary offence of aggravated dangerous driving of which you have been convicted and for which you have been sentenced to 15 months imprisonment.
(6) That Order is extended to the offences of driving whilst disqualified and minor theft, of which you have also been convicted and which you have been sentenced and which are associated offences of the primary offence.
(7) It is noted that the convictions of the primary offence and associated offences have been recorded and that sentences have been imposed for each of them which convictions and sentences are hereby incorporated into the Drug and Alcohol Treatment Order into the Custodial Part of the Order.
(8) The Custodial Part of the Drug and Alcohol Treatment Order for the primary and associated offences is hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 2 August 2021, until 26 March 2023.
(9) Under ss 22 and 80ZA of the Crimes (Sentencing) Act 2005 (ACT), you are required to sign an undertaking to comply with the offender's Good Behaviour Obligations under s 85 of the Crimes (Sentence Administration) Act2005 (ACT) from 2 February 2023 to 26 March 2023, with a probation condition that you accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of that undertaking or such lesser period as the person supervising you considers appropriate and that you obey all reasonable directions of the person supervising you, including as to urinalysis, counselling and treatment.
(10) For the Treatment and Supervision Part of the Drug and Alcohol Treatment Order:
a. The core conditions of the order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) are hereby imposed.
b. You are directed to travel directly from this Court today to Canberra Recovery Services, Fyshwick, by means provided or organised by Alcohol and Drug Services and admit yourself to the residential drug rehabilitation program at that facility by 1:00pm today.
c. You are directed to complete the residential drug rehabilitation at Canberra Recovery Services, not to leave the facility until you have completed the course and to comply with all directions of the person in charge of the program and all the rules of the program and the facility.
d. Should you leave or be discharged from the program before completing it, you are to report to ACT Corrective Services by 4:00pm on the next business day with a view to having your Drug and Alcohol Treatment Order reviewed.
e. You are directed to undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the treatment and supervision team and obey all reasonable directions of any member of that team about where you reside, with whom you associate and your attendance from time to time.
f. You are directed to comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.
(11) You are directed to appear in Court by electronic means on Friday, 13 August 2021 at 12.30pm.
(12) You are directed to attend the Court Registry before you leave the Court precinct to sign a copy of this Order and the Good Behaviour Orders and an undertaking to comply with the obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this Order is in force.
Mr Law, that is a lot of words and a lot of legal stuff. You have been around the courts long enough now probably to understand most of it, but I am obliged to explain to you what I have done.
Basically, what I have said is that, given your history, continued repeat of putting people in danger on the roads and disobeying the road rules, preying on other people's property and taking that from them - a total sentence of 20 months imprisonment is appropriate, together with a Good Behaviour Order that you do not commit any further offences for three months from today. However, given your circumstances, given the way you have behaved yourself in the Solaris program, given your request for it and your wish to rehabilitate, I am prepared to make a Treatment Order.
This is a privilege. A lot of resources will be provided to you to assist you and I urge you to take advantage of that privilege. You have shown in Solaris that you can do it, but that is in a different environment in custody. You are now in the community and your history shows that in the community you fall apart pretty soon and go back to your old ways. I am satisfied that that is largely a result of your drug dependency, but it also leads to other things like you knocking around with antisocial associates. They are the people that you consume drugs with or you get your drugs from and they involve themselves in crime because crime and drug use is interrelated. You have got to stop all of that.
You have got a daughter. You can be a role model to her. You can support her. You want to work on that. You have got family who love you and want you to be reunited with them, but I cannot imagine the distress that they have with your continued behaviour and your drug use.
This is an opportunity and I urge you to take it with both hands and work on it, but it will be hard. It is not easy to manage a drug dependency, which is a vicious dependency, which has become pretty entrenched over the 15 or so years that you have been using. It will be hard, but, as you address those problems and rise above them, it will make you stronger and you will have people who will help you. At Canberra Recovery Services, you will have some fine professionals who will assist you if you will let them do so. In the Treatment and Supervision Team, you will have people who will assist you also.
You will not be represented any more by the Aboriginal Legal Service who have done a very fine job in supporting you. It will now be Legal Aid, but you will have a lawyer who can assist you if you get into any difficulties or if you do not understand and need to talk to someone about your legal situation.
All of that means - and it is extremely important - that you need to be honest. You need to be honest with the people you are dealing with, but you also need to be honest with yourself and in some ways that is the hardest thing, because you have to live with yourself and so it is easier to make yourself seem, to you, better than you probably are, but confronting the reality can be ultimately really strengthening and it will be necessary for you to get through this.
The other thing that is really important is that, if you are committed to this and not using this just as a way to get out of AMC for a little while, then you must commit to it wholeheartedly. What you must avoid doing is being tempted, because there will be other people in there, some of whom will not necessarily be doing the right thing.
I know that is easy for me to say and it will be hard for you to do, but it is so important.
If things get too tough then come and see me, and I mean that literally. You will see me. You are going to come back in a fortnight now, but otherwise, for a while, you will see me every week and then for a while every fortnight. You can see me more frequently than that if you speak to your lawyer and arrangements can be made.
If there are problems, if you really cannot hack it, if you really want to do something else, then come back to me. I do not say I can solve every problem, but judges have got enormous power. I can send you to jail. That is a pretty big power, but I also have other powers. I cannot solve everything, but it is amazing how much can be resolved, as long as you share it and as long as you raise it. Sometimes it cannot be resolved and I have got to tell you to manage it, but, in doing so you will often be stronger by surviving and getting over it.
Probably the worst thing you can do is to run away. If things get tough and you do the wrong thing and are discharged do not run away. Come back and see me, because even though being discharged and breaching the rules is a breach of the Order, it is compounded by running away and not coming back, and I think there is history in this Court List of people being given second chances if they are prepared to own up, face it and say “I am sorry, it was a mistake. I am committed and will learn from this and have another go”. If you just run away, the chances of being given a second chance are very remote. I cannot say it never happens, but it is very rare.
This is a real opportunity. As I say, it is a privilege. I do not want you to be burdened by that, but it is important for you to understand that you are getting what many other people have not got, which is a real opportunity to be an ordinary, useful citizen in the community with a family that you can love and see, not through the windows of the AMC.
You can use this opportunity to strengthen your connection to your culture, which is an incredible culture that stretches back millennia. It is something that you have not had the chance to engage with much, but you will have the opportunity to do that. You can also grow to become a useful member of the community. That does not mean you have to be king of the world, but you can do something that will make you feel good, form bonds with people who are sensible members of the community, can re-engage with your family and with your culture and that will be so affirming and so satisfying for you, should you take this opportunity. I certainly hope you do.
I wish you every good luck in this enterprise. As noted, I will see you quite a lot and I hope your journey will bring me good news.
| I certify that the preceding one hundred and nineteen [119] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge. Associate: Date: 3 August 2022 |
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