R v Longmore (No 2)
[2019] ACTSC 265
•20 September 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Longmore (No 2) |
Citation: | [2019] ACTSC 265 |
Hearing Date: | 20 September 2019 |
DecisionDate: | 20 September 2019 |
Before: | Elkaim J |
Decision: | See [20] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – arson – driving while disqualified – burglary – theft – obtain property by deception - drive motor vehicle without consent – take motor vehicle without authority - make off without payment – damage property - breach of Good Behaviour Orders |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 110 |
Cases Cited: | R v Longmore [2018] ACTSC 298 |
Parties: | The Queen (Crown) Matthew Longmore (Offender) |
Representation: | Counsel Ms M Lucero (Crown) Mr B Dunne (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 67 of 2018; SCC 68 of 2018; SCC 70 of 2018; SCC 183 of 2019; SCC 184 of 2019 |
ELKAIM J:
The offender is before the court on a mix of fresh offences that have been committed or transferred from the ACT Magistrates Court, and breach matters.
On 30 May 2019 the offender entered pleas of guilty to ten charges in the ACT Magistrates Court. On 1 August 2019 those charges were committed for sentence under s 90A of the Magistrates Court Act 1930 (ACT). The charges and their maximum penalties are:
1. One charge of joint commission damage property (CC2019/1853) contrary to s 403 by virtue of s 45A of the Criminal Code 2002 (ACT). The maximum penalty is a fine of $150,000, 10 years imprisonment or both;
2. One charge of joint commission theft (CC2019/1854) contrary to s 308 by virtue of s 45A of the Criminal Code 2002 (ACT). The maximum penalty is a fine of $150,000, 10 years imprisonment or both;
3. One charge of obtain property by deception (CC2019/1855) contrary to s 326 of the Criminal Code 2002 (ACT). The maximum penalty is a fine of $150,000, 10 years imprisonment or both;
4. One charge of aggravated burglary (CC2019/1928) contrary to s 312 of the Criminal Code 2002 (ACT). The maximum penalty is a fine of $300,000, 20 years imprisonment or both;
5. One charge of ride/drive a motor vehicle without consent (CC2019/3543) contrary to s 318(2) of the Criminal Code 2002 (ACT). The maximum penalty is a fine of $80,000, 5 years imprisonment or both;
6. One charge of taking a motor vehicle without authority (CC2019/3130) contrary to s 318(1) of the Criminal Code 2002 (ACT). The maximum penalty is a fine of $80,000, 5 years imprisonment or both;
7. Another charge of ride/drive a motor vehicle without consent (CC2019/5872) contrary to s 318(2) of the Criminal Code 2002 (ACT). The maximum penalty is a fine of $80,000, 5 years imprisonment or both;
8. One charge of failing to stop a motor vehicle for police (CC2019/3544) contrary to s 5C of the Road Transport (Safety and Traffic Management) Act 1999 (ACT). The maximum penalty is a fine of $48,000, 3 years imprisonment or both, and an automatic licence disqualification of 12 months;
9. One charge of aggravated, furious, reckless, dangerous driving (CC2019/3546) contrary to s 7(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT). The maximum penalty for a repeat offender is a fine of $80,000, 5 years imprisonment or both, and an automatic licence disqualification of 12 months; and
10. One charge of damage property over $1,000 in value (CC2019/3550) contrary to s 403(1) of the Criminal Code 2002 (ACT). The maximum penalty is a fine of $160,000, 10 years imprisonment or both.
Four other offences were transferred as related charges under s 90B of the Magistrates Court Act 1930 (ACT). Pleas of guilty were also entered to those charges on 30 May 2019. Those charges and their maximum penalties are:
1. One charge of possess prohibited substance (CC2019/3542) contrary to s 171(1)(b) of the Drugs of Dependence Act 1989 (ACT). The maximum penalty is a fine of $8,000, 2 years imprisonment or both;
2. One charge of driving with a prescribed drug in his oral fluid (CC2019/3545) contrary to s 20(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT). The maximum penalty for a first offender is a fine of $1,600, a minimum 6 month licence disqualification and a default licence disqualification of 3 years;
3. One charge of using a vehicle with the numberplate/registration not properly issued (CC2019/3547) contrary to s 22(1)(a) of the Road Transport (Vehicle Registration) Act 1999 (ACT). The maximum penalty is a fine of $3,200; and
4. One charge of drive while disqualified (CC2019/3548) contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT). The maximum penalty is a fine of $16,000, 12 months’ imprisonment or both, and an automatic licence disqualification of 24 months.
Finally, there are eleven charges before the court that were previously dealt with by me on 29 October 2018. Three of those charges commenced by way of indictment filed 18 June 2018. I imposed the following sentences:
1. In relation to Count 4 (CC2017/31371), the offence of dishonestly drive a motor vehicle, 9 months’ imprisonment;
2. In relation to Count 5 (CC2017/480), the offence of arson, 15 months’ imprisonment;
3. In relation to Count 6 (CC2017/10978), the offence of aggravated robbery, 3 years’ imprisonment.
The balance of the charges were transferred from the ACT Magistrates Court and I dealt with them as follows:
4. In relation to CC2017/10979, the offence of burglary, the offender was sentenced to 6 months’ imprisonment;
5. In relation to CC2017/10981, the offence of theft, the offender was sentenced to 6 months’ imprisonment;
6. In relation to CC2017/10982, the offence of driving a motor vehicle without consent, the offender was sentenced to 6 months’ imprisonment;
7. In relation to CC2018/00474, the offence of driving while disqualified, the offender was sentenced to 6 months’ imprisonment and was disqualified from driving for a period of 24 months;
8. In relation to CC2018/00477, the offence of driving while disqualified, the offender was sentenced to 6 months’ imprisonment and was disqualified from driving for a period of 24 months;
9. In relation to CC2018/00479, the offence of driving while disqualified, the offender was sentenced to 6 months’ imprisonment and was disqualified from driving for a period of 24 months;
10. In relation to CC2018/00473, the offence of make off without payment, the offender was sentenced to 3 months’ imprisonment; and
11. In relation to CC2018/00476, the offence of make off without payment, the offender was sentenced to 3 months’ imprisonment.
In total, and taking into account periods of concurrency, I sentenced the offender to 3 years, 5 months and 27 days imprisonment commencing 4 November 2017 and ending 30 April 2021. The period of imprisonment was suspended from 14 January 2019 on the condition that the offender enter into a Good Behaviour Order for 2 years and 6 months with core conditions, including that he accept the supervision of the Director-General of ACT Corrective Services and that he attended the residential rehabilitation facility at Triple Care Farm from 14 January 2019.
The breach of the Good Behaviour Order is admitted. The details of the breach are set out in the affidavit of Fabi Kandamparambil, sworn 21 March 2019. In summary, the offender has failed to comply with his obligation to accept the supervision of the Director-General of ACT Corrective Services and to attend the residential rehabilitation facility at Triple Care Farm. In addition, he has committed further offences during the suspension period. I regard this as the more severe part of the breach. Good behaviour means what it says.
I have detailed the offender’s subjective circumstances in R v Longmore [2018] ACTSC 298 at [10] – [12].
The offender spent 1 year, 2 months and 10 days in custody before being released on 14 January 2019. He therefore has 2 years, 3 months, and 17 days left on the sentences I imposed on 29 October 2018. He has spent an additional 5 months and 29 days (or 182 days) in custody since being remanded on the fresh offences on 23 March 2019.
As far as the current offences are concerned the basic facts are as follows: adopting the same numbering as used above, charges 1, 2, 3 and 4 occurred when the offender entered a secured car park with another person. They smashed a car window, stole personal items including a credit card and later used that credit card to make some purchases. These offences may be described as approaching medium objective seriousness.
Charge 5 relates to the offender’s DNA being found in a stolen motor car. Without more the offence can only be described as being of minor objective seriousness.
Charge 6 concerns the offender entering a motorcar and trying to use another vehicle to ‘jump start’ it. Again this is of minor objective seriousness.
Charges 7, 8, 9 and 10 related to the offender driving a stolen motor vehicle. There were two passengers. When the police told him to pull over he drove erratically for some time until he crashed into a fence. He had methylamphetamine in his oral fluid. His episode of criminal conduct also included the transfer charges.
The last series of offences, bearing in mind they were all committed while the offender was on conditional liberty, are approaching medium objective seriousness.
When I sentenced the offender in October last year I referred to his main problem being drug use. I said that “there is one glimmer of hope for him in the future which is that he has been accepted into a residential rehabilitation program beginning in January next year”. That glimmer has dissipated. The offender did not complete the rehabilitation program and has obviously chosen not to take the path that was provided to him to get himself back on track.
This is indeed unfortunate, but the offender must now be treated as if there is less emphasis to be placed on his rehabilitation. This is not to say that he is beyond rehabilitation but that the court, having given him the opportunity to participate in a program, cannot again give him the same consideration which includes the encouragement for rehabilitation which was previously offered.
The difficulty in this case arises from the effects of s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) with respect to the breach. I either have to reimpose the former sentences, or resentence the offender. If I do the former there is likely to be an injustice arising from the addition of the sentences for the fresh matters. Principles of totality require me not to impose a crushing sentence.
I think the best approach is to resentence the offender, taking into account events that have happened since he was originally sentenced, including the periods he has already spent in custody in respect of each offence. Because the sentence for Count 4 has already been entirely served in prison there is no need to resentence him for that offence.
In respect of the fresh offences, the offender is entitled to a discount for his pleas of guilty which I have assessed at approximately 20% and factored into the sentences I will impose.
I make the following orders:
Sentences imposed on 29 October 2018
The offender is resentenced as follows.
a) The Good Behaviour Order is cancelled.
b) For Count 5, arson (CC 2017/480), the offender is sentenced to 1 month imprisonment commencing on 23 March 2019 and ending on 22 April 2019.
c) For Count 6, aggravated robbery (CC 2017/10978), the offender is sentenced to 9 months’ imprisonment commencing on 22 April 2019 and ending on 21 January 2020.
d) For the offence of burglary (CC 2017/10979) the offender is sentenced to 6 months’ imprisonment commencing on 3 August 2020 and ending on 2 February 2021.
e) For the offence of theft (CC 2017/10981) the offender is sentenced to 6 months’ imprisonment commencing on 3 August 2020 and ending on 2 February 2021.
f) For the offence of drive motor vehicle without consent (CC 2017/10982) the offender is sentenced to 6 months’ imprisonment commencing on 3 August 2020 and ending on 2 February 2021.
g) For the offence of driving while disqualified (CC 2018/00474) the offender is sentenced to 6 months’ imprisonment commencing on 3 August 2020 and ending on 2 February 2021.
h) For the offence of driving while disqualified (CC 2018/00477) the offender is sentenced to 6 months’ imprisonment commencing on 3 August 2020 and ending on 2 February 2021.
i) For the offence of driving while disqualified (CC 2018/00479) the offender is sentenced to 6 months’ imprisonment commencing on 3 August 2020 and ending on 2 February 2021.
j) For the offence of make off without payment (CC 2018/00473) the offender is sentenced to 3 months’ imprisonment commencing on 1 February 2021 and ending on 30 April 2021.
k) For the offence of make off without payment (CC 2018/00476) the offender is sentenced to 3 months’ imprisonment commencing on 1 February 2021 and ending on 30 April 2021.
Sentences imposed for fresh matters
l) For the offence of joint commission damage property (CC2019/1853) the offender is sentenced to 6 months’ imprisonment commencing on 23 March 2019 and ending on 22 September 2019;
m) For the offence of joint commission theft (CC2019/1854) the offender is sentenced to 6 months imprisonment commencing on 23 March 2019 and ending on 22 September 2019;
n) For the offence of obtain property by deception (CC2019/1855) the offender is sentenced to 6 months imprisonment commencing on 23 March 2019 and ending on 22 September 2019;
o) For the offence of aggravated burglary (CC2019/1928) the offender is sentenced to 2 years imprisonment commencing on 23 March 2019 and ending on 22 March 2021;
p) For the offence of ride/drive a motor vehicle without consent (CC2019/3543) the offender is sentenced to 3 months imprisonment commencing on 22 February 2021 and ending on 21 May 2021;
q) For the offence of ride/drive a motor vehicle without consent (CC2019/5872) the offender is sentenced to 3 months imprisonment commencing on 22 February 2021 and ending on 21 May 2021;
r) For the offence of taking a motor vehicle without authority (CC2019/3130) the offender is sentenced to 3 months’ imprisonment commencing on 21 April 2021 and ending on 20 July 2021;
s) For the offence of failing to stop a motor vehicle for police (CC2019/3544) the offender is sentenced to 6 months’ imprisonment commencing on 20 June 2021 and ending on 19 December 2021;
t) For the offence of aggravated, furious, reckless, dangerous driving (CC2019/3546) the offender is sentenced to 12 months’ imprisonment commencing on 20 June 2021 and ending on 19 June 2022;
u) For the offence of damaging property over $1,000 in value (CC2019/3550) the offender is sentenced to 6 months’ imprisonment commencing on 19 March 2022 and ending on 18 September 2022;
v) For the offence of possess prohibited substance (CC2019/3542) the offender is sentenced to 6 months imprisonment commencing on 17 July 2022 and ending on 16 January 2023;
w) For the offence of driving with a prescribed drug in his oral fluid (CC2019/3545) the offender is sentenced to 6 months imprisonment commencing on 15 October 2022 and ending on 14 April 2023;
x) For the offence of using a vehicle with the numberplate/registration not properly issued (CC2019/3547) the offender is fined $1,000 with no time to pay;
y) For the offence of drive while disqualified (CC2019/3548) the offender is sentenced to 6 months’ imprisonment commencing on 13 February 2023 and ending on 12 August 2023.
z) The total sentence for all offences is 4 years, 4 months, and 21 days starting on 23 March 2019 and ending on 12 August 2023.
aa) I set a non-parole period of 2 years, 1 month and 11 days starting on 23 March 2019 and ending on 3 May 2021.
bb) I note automatic disqualification periods will apply.
| I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: 24 September 2019 |