R v Massey (No 2)

[2020] ACTSC 257

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Massey (No 2)
Citation:	[2020] ACTSC 257
Hearing Date(s):	7 August 2020
Decision Date:	7 September 2020
Before:	Refshauge AJ

Decision:	1.	For the charge of dishonestly driving a motor vehicle without the owner's consent on 18 March 2020, Mr Massey be sentenced to 12 months' imprisonment to commence on 17 August 2020.
2.	For the charge of refusing to provide a sample of oral fluid for analysis as directed, as a repeat offender, Mr Massey be sentenced to three months' imprisonment to commence on 17 June 2021.
3.	For that offence, Mr Massey is to also be disqualified
from holding or obtaining a driver’s license for 12 months
from today, 4 September 2020.
4.	Mr Massey be convicted of riding dishonestly in a motor vehicle without the owner's consent on 15 August 2017.
5.	For that offence, Mr Massey be sentenced to 14 months' imprisonment, to commence on 17 January 2021.
6.	The whole sentence be suspended after five months, on 16 January 2021, for a period of 18 months.
7.	Mr Massey be required to sign an undertaking to comply with the offender's good behaviour obligations for 18 months, from 16 January 2021, together with a probation condition that he be on probation subject to the supervision of the Commissioner of ACT Corrective Services or his delegate, and obey all reasonable directions of that person including as to rehabilitation, which might include residential rehabilitation.

Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND
PROCEDURE – Judgment and Punishment – Sentence – dishonestly driving a motor vehicle without the owner’s consent
– refusing to provide a sample of oral fluid as directed –
consideration of the offender’s commission of further similar
offences whilst on bail – Drug and Alcohol Treatment Order not made – imprisonment – signing of good behaviour obligations –
prospects of rehabilitation
Legislation Cited:	Criminal Code 2002 (ACT), s 318(2) Crimes (Sentencing) Act 2005 (ACT), ss 12A, 27, 46J, 80T(1), 80T(2), 80T(3), 80T(5), 80T(6)
Road Transport (Safety and Traffic Management) Act 1999
(ACT), s 5B
Cases Cited:	Bugmy v The Queen [2013] HCA 37; 249 CLR 571 R v Booth [2017] ACTSC 191 R v Massey (No 1) [2020] ACTSC 256
Parties:	The Queen (Crown) Jordan Matthew Henry Massey (Offender)
Representation:	Counsel
K Reardon (Crown) B Morrisroe (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown) Boxall Legal (Offender)
File Number(s):	SCC 133 of 2020 SCC 134 of 2020
REFSHAUGE AJ:

1.       On 17 August 2020, I convicted Jordan Matthew Henry Massey of dishonestly driving a motor vehicle without the owner's consent, of refusing to provide a sample of oral fluid as directed, and of driving whilst disqualified from holding or obtaining a driver licence: see R v Massey (No 1) [2020] ACTSC 256.

2.       I sentenced him then for the last of those three offences and adjourned sentence to consider how the sentence for the other two offences should be served. He now appears before me for that sentencing. Mr Massey had been committed to this Court on charges that could have been dealt with in the ACT Magistrates Court because he was seeking a drug and alcohol treatment order (a treatment order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act): R v Massey (No 1) at [12].

3. Indeed, when he appeared in the court on 26 June 2020, drug and alcohol suitability assessments under s 46J of the Sentencing Act were ordered. Thus, the first issue is whether I should sentence Mr Massey to a treatment order. Before making a treatment order, it is necessary for the court to order an assessment from the Director General of ACT Health and the Director General of Justice and Community Safety: s 46J of the Sentencing Act.

4.       I received three reports: one from a social worker from Forensic Mental Health Services (Canberra Health Services), one from a social worker from the Alcohol and Drug Services (Canberra Health Services), and one from a corrections officer from ACT Corrective Services (Justice and Community Safety). All three reports recommended that Mr Massey was suitable for a treatment order.

5.       While receipt and consideration of such reports is a pre-condition to the court making a treatment order (s 80T(1) of the Sentencing Act), it is not sufficient. A court may consider other matters: s 80T(2) and (3) of the Sentencing Act. The court may then make or decline to make a treatment order despite any recommendation in the reports, but if the court does not act in accordance with the findings of suitability or unsuitability of the offender for a treatment order, it must record the reasons for so acting: s 80T(5) and (6) of the Sentencing Act.

6.       There are other matters of importance in this case to which I now turn. On 24 July 2020, I released Mr Massey on bail. Conditions of that bail included that he does not consume illicit substances including cannabis or any drug illegally obtained, that he remain in his place of residence from 9 pm to 7 am, and that he present himself to police at the door of that residence on request.

7.       On 10 August 2020, Mr Massey admitted to consuming cannabis. Then, on 13 August 2020, a police officer attended Mr Massey's place of residence and requested his presence at the door. Mr Massey did not attend either because, as seems most likely, he was not there as required, or he simply refused to come to the door. Those actions constituted a breach of his bail.

8.       As a result of those breaches of bail, I revoked his bail and remanded Mr Massey in custody on 17 August 2020. While in custody he was subject to a search. Before the search commenced, he was asked if he had any prohibited items on his clothes or in his person and he said that he did not. He was then searched, and illegal drugs were located on him.

9.       Most troubling of all is that a further offence has since come to the attention of authorities. Mr Massey has been charged with a further offence of dishonestly riding in a motor vehicle without the owner's consent on 15 August 2020, that is, while he was still on bail, preparatory to the sentencing hearing at which his suitability for a treatment order was to be considered. The circumstances of that offending are that Mr Massey and two other persons were in a Holden Captiva crossover SUV which was doing burnouts and fishtails on Isabella Playing Fields, Isabella Plains, and then driving erratically on a greenbelt beside Isabella Drive later in the afternoon on 15 August 2020.

10.    The driver did not appear to be in control and then dropped straight into an embankment on the side of the car. Gouges were seen in the grass where the car had been driven. Three males emerged from the vehicle and Mr Massey was identified as one. His wallet was later recovered from the vehicle. Checks showed that the numberplates on the vehicle did not belong to it but had themselves been stolen from an address in McKellar, ACT.

11.     The vehicle itself had been stolen from an address in Nicholls, ACT on 12 August 2020. There is no evidence to suggest that Mr Massey stole the vehicle or the number plates or drove the vehicle. He was a rear seat passenger and, it was submitted, that he therefore could not be held responsible for the manner of driving. I am not satisfied, however, that he can simply absolve himself completely from the manner in which the car was driven, merely by being a passenger in the vehicle. It was clearly a joint enterprise of the three persons in the car.

12.     Mr Massey has, however, pleaded guilty to the charge of dishonestly driving in the vehicle without the owner's consent. This is, of course, a similar offence to the primary offence for which he was to be sentenced two days later. These matters have caused me concern about whether Mr Massey is, in fact, suitable for a treatment order at this stage.

13.     By itself, the use of cannabis is not of a major concern so far as his suitability for a treatment order is concerned. Drug addicts obviously find the need to use drugs an almost overwhelming urge, though it was soon after his release that he breached an express condition of his bail. The failure to comply with the curfew is concerning. It also seems that such behaviour is a continuation of problems earlier identified in the drug and alcohol assessment report from ACT Corrective Services.

14.     In particular, it reported:

Mr Massey was in custody from the beginning of the assessment period and engaged appropriately in two appointments conducted before he was released on bail on 24 July 2020. Since his release on 24 July 2020 it has been difficult to engage with Mr Massey.

15. Later, it noted:

Mr Massey was released … [on] bail and has been required to live in a Justice Housing

Program (JHP) property since 24 July 2020. Contact with Catholic Care staff from the JHP confirm[s] Mr Massey has engaged with staff sporadically during the time he has been required to live at the address. Staff informed there have been no formal issues of non- compliance with the JHP house rules but at times there had been difficulty contacting Mr Massey and issues with him accepting the support being offered regarding his accommodation and making Centrelink arrangements to support the tenancy.

16.     Similar difficulties were experienced with his interaction with the social worker from

Canberra Health Services’ Alcohol and Drug Services. Mr Massey failed to attend an

appointment after originally being released from custody in July and then later failed to arrange a COVID-19 test in a timely manner until directed to do so by ACT Corrective Services even though this had prevented him from attending other scheduled appointments for consultation.

17.     Similarly, his commitment to rehabilitation, while expressed, is somewhat guarded. He sees this as being for a limited time, rather than for as long as necessary, and seems to be at least hesitant to engage in residential rehabilitation. These matters in themselves may not constitute a significant issue, other than underlining the chaotic lifestyle so often encountered with those using drugs, how entrenched they are in the criminal justice system, and their perhaps natural reluctance to commit to a strenuous regime of rehabilitation. They do, however, provide a background suggesting that it is an actual impression of his current situation, gained from his more recent behaviours committed in the context of an impending opportunity which a treatment order would give him as he was on bail granted by me, and then when returned to custody after that bail. The impression is that he is not genuinely ready to commit himself to the type of rehabilitation that a treatment order designed to help him in his current situation would give him.

18.     A further offence is perhaps the most significant reason why Mr Massey is, in my view, not suitable for a treatment order. While it is undoubtedly a less serious offence than the primary offence, in that Mr Massey was not charged as the driver, it did have worrying aspects. The manner of the driving was a serious breach of the road rules and risked danger to other road users. Mr Massey was not entirely responsible because he was not the driver and was, it was submitted, merely a passenger. But as I have indicated above at [11], I am not satisfied that that is an entirely accurate assessment of the situation. The Statement of Facts, which was agreed to by Mr Massey, reported that a witness almost stopped his car while he was driving as he was afraid that the driver of the vehicle would swerve from the green belt onto Isabella Drive and collide with his car.

19.     It is a more serious offence because Mr Massey was on bail, that is, on conditional liberty. That, while on bail, he would commit a similar offence to one for which he was to be sentenced gives me little confidence that he would be able to manage, at liberty, under a treatment order at this time. It also very substantially undermines the credibility of his expressed commitment to rehabilitation.

20.     This is, of course, a great pity, for Mr Massey is still young enough to be able to address his drug addiction and criminality before it becomes so entrenched, and before he commits more serious crimes from which it will be more difficult to return to a respectful and civil place in the community. Because of this, and because of his expressed wish for rehabilitation, and the statements made to the various authors of the suitability assessment reports as to his intentions to rehabilitate and seek training for employment, it seems to me that I should craft a sentence that provides him with that possibility if he wishes actually to take it up.

21. I, of course, now have to sentence him. I now have also to deal with the additional offence. It is another offence contrary to s 318(2) of the Criminal Code 2002 (ACT) and makes Mr Massey liable to a maximum penalty of five years' imprisonment, a fine of $80,000, or both.

22.    Mr Massey appeared in the ACT Magistrates Court on 3 September 2020 and pleaded guilty. It was then committed to this Court for hearing today as I was sentencing Mr Massey for the other offences for which he was to be sentenced.

23.     I have considered the nature of the offence of dishonestly driving a motor vehicle

without the owner’s consent in the first decision I dealt with concerning Mr Massey, in

R v Massey (No 1) at [54]-[59]. I later considered the sentencing range, and whether there was a tariff in the same case at [76]-[79]. I adopt what I there said.

24.     As noted above at [9]-[11], the offence is quite a serious one. The manner of driving, the damage it did to the grass and possibly to the vehicle, and the fact that he was on bail at the time, more than overwhelm the mitigating fact that he was not the driver. There is no evidence of any damage to the vehicle but the fact that it was driven into the embankment on its side must mean that, at the very least, it would have caused problems to retrieve.

25.     I also have no information about the value of the vehicle or even the year of its make.

The evidence does not show that the vehicle – while Mr Massey was in it – was

driven for any lengthy distance or for any significant length of time. While it was not used for a crime for which anyone has been charged, the use of the car for a burnout is, in fact, an offence under s 5B of the Road Transport (Safety and Traffic Management) Act 1999 (ACT).

26.     These matters are aggravating but not substantially. Of more significance is that it is Mr Massey's fourth offence of this kind. Most significantly, this offence was committed while he was on bail, that is, on conditional liberty. In those circumstances it becomes a significantly more serious offence: see, for example, R v Booth [2017] ACTSC 191 at [11].

27.     In further mitigation is that Mr Massey pleaded guilty at the first opportunity in the Magistrates Court. The Crown case was strong but certainly not overwhelming as it

relied on some identification – always a fraught area. Nevertheless, it entitles Mr

Massey to a not unsubstantial discount on the sentence to be imposed.

28. I considered initially the possibility of a deferred sentence order under s 27 of the Sentencing Act but it seems to me that this is not relevantly different from a treatment order, except that it does not have the intensive support and supervision of the latter. If I am concerned that Mr Massey is unlikely to succeed with a treatment order it does not seem likely that a deferred sentence order would be relevantly different and would indeed be riskier. It also became quite inappropriate in the light of the further offence.

29.     Nevertheless, it is still possible to craft a sentence that first reinforces the seriousness of the criminality in which Mr Massey is continuing to engage and the need for him to take positive and committed action if he is genuine about his wish to rehabilitation, and secondly gain himself an opportunity to engage in the appropriate employment of his liking.

30.     Accordingly, I propose to sentence him to a term of imprisonment, but with a relatively short period of fulltime custody, followed by a lengthy period under a good behaviour order with an opportunity for rehabilitation, which will assist him to achieve his goals if he acts positively to gain it.

31.     As I said in R v Massey (No 1) at [86]:

That there are multiple offences also requires careful consideration. In particular, the appropriate sentence for each offence is important. I have carefully reviewed the sentences to ensure that where there are overlapping common elements between any of the offences the offender is not punished twice. I have also considered whether the sentences should be partly or wholly concurrent because, for example, they are part of the same enterprise or otherwise.

32.    Of course, in this case, totality is an important consideration. In my view, Mr Massey's relative youth is relevant. His childhood disadvantage plays some part having regard to the principles enunciated in Bugmy v The Queen [2013] HCA 37; 249 CLR 571.

33.     As I also said in R v Massey (No 1) at [88]:

I have then reviewed the length of the term of imprisonment to ensure the principle of totality is respected, that the total sentence is adequate to reflect the criminality of the offences committed, but not more than that, that the total sentence is not crushing and leaves open the realistic prospect of reform and the hope for the achievement of the offender's goals when he returns to the community.

34.     It is necessary, however, to ensure that offenders are not mistaken into believing that they can commit additional offences with impunity.

35.     It was submitted that I should sentence Mr Massey to imprisonment with a non-parole period, and leave it to the Sentence Administration Board to determine, subject to a non-parole period, when he would be released and the conditions under which he would be released. I am not satisfied that this is the correct approach. I do not consider that a good behaviour order with strict supervision on a probation order is, in reality, less supervision than that provided for on parole. However, it does seem to me that a period of fulltime imprisonment is necessary.

His Honour then spoke to Mr Massey:

36.     Mr Massey please stand.

37.     On the charge of dishonestly driving a motor vehicle without the owner's consent on 18 March 2020, of which I have convicted you, I sentence you to 12 months' imprisonment to commence on 17 August 2020. Had you not pleaded guilty, I would have sentenced you to 15 months' imprisonment.

38.     On the charge of refusing to provide a sample of oral fluid for analysis as directed, as a repeat offender, I sentence you to three months' imprisonment to commence on 17 June 2021, that is, as to be cumulative as to one month on the previous sentence. Had you not pleaded guilty, I would have sentenced you to four months' imprisonment. For that offence, I also order that Mr Massey be disqualified from

holding or obtaining a driver’s license for 12 months from today, 4 September 2020.

39.     I convict you of riding dishonestly in a motor vehicle without the owner's consent on 15 August 2017. I sentence you to 14 months' imprisonment, to commence on 17 January 2021, that is to be concurrent as to seven months on the first sentence. Had you not pleaded guilty, I would have sentenced you to 18 months' imprisonment.

40.     I suspend the whole sentence after five months, on 16 January 2021, for a period of 18 months.

41.     I require you to sign an undertaking to comply with the offender's good behaviour obligations for 18 months, from 16 January 2021, together with a probation condition that you be on probation subject to the supervision of the Commissioner of ACT Corrective Services or his delegate, and obey all reasonable directions of that person including as to rehabilitation, which might include residential rehabilitation.

42.     Mr Massey, that is the formal stuff. What I am obliged to do now is explain what I have really done. I have convicted you for all those charges, and you have heard the length of the sentences I have imposed. At the end of the day, I have said that this total criminality is worth 19 months of imprisonment.

43.     But I do not intend to send you away for that period of time. I intend to give you an opportunity after five months, which is in January next year, to be released into the community, and that is an automatic release, all right? But you are under supervision

for that period of time – for a further 18 months. If you breach any directions of that

supervision then you can be brought back to court and I will not guarantee what will
happen, because that is stupid, there is no point in a guarantee.

44.     If it is a minor breach, I am not necessarily going to send you back to prison at all, but I might send you back for some period of time, or I might direct that you serve the whole of the balance of the sentence. There is a particular condition, and that is a probation condition of supervision with an attention to rehabilitation. Now, this is your opportunity. You have got five months to do two things.

45.     One is to really think about what you want to do with your life. You have got some role models in your parents, what they have done, and you can follow that course. Your mother is now, as I understand it, doing well. That is a good role model; you can do that earlier than she had the misfortune to be able to do. If you really set your mind to it, now is an opportunity.

46.    And secondly, you can explore the opportunities for rehabilitation. There are residential rehabilitation opportunities. My view is that it is probably safer for you and better if you are committed to engage in residential rehabilitation. I suspect, for you, it is better if you commit yourself to that rather than someone ordering you to do that because, as I understand your background, from what I have seen of it, and I do not know you very well obviously, you are more likely to respond better to that.

47.     You have got time to find a place, so that you can say to Corrective Services, when you are released, this is where I want to go, and this is what I will do. It will take you some time because they are busy, they are full. It will take you time to get there. If you do that, then there is a real opportunity, and if you do it yourself that is really good, but you will not be alone. You will have Corrective Services looking over your shoulder, checking up on you, ensuring that you do the right thing, all right?

48.     [Mr Massey responded: Yes.]

49.     So, it is up to you. I hope you take this opportunity. You have not shown yet that you are mature enough to engage with a treatment order now. I am giving you some time to grow up, to take some control for yourself, to do the right thing, and then to engage in rehabilitation. I have no doubt that you can be a useful member of the community.

50.     You can find a good apprenticeship, you can find something that will be useful, and you can live a life of the kind that you want to live rather than what other people will force you to live by sending you back to gaol, time and time again, as clearly was the risk for where you were going to go. So, that is the best I can do for you, and for the community, and for the people whose cars you have played a part in depriving them of their use.

I certify that the preceding fifty [50] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge.

Associate: Samuel Xiang

Date: 2 December 2020