R v MB
[2014] ACTSC 370
•18 December 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v MB |
Citation: | [2014] ACTSC 370 |
Hearing Date(s): | 18 December 2014 |
DecisionDate: | 18 December 2014 |
Before: | Refshauge J |
Decision: | (1) It be declared that MB breached the Good Behaviour Order imposed on 3 July 2012. (2) The Good Behaviour Order made on 3 July 2012 be cancelled. (3) For the offence of using an electronic means to deprave on 10 December 2012, MB be sentenced to nine months’ imprisonment to commence on 16 June 2013, to take into account his pre-sentence custody, the periodic detention and the partial completing of the Good Behaviour Order. (4) For the offence of sexual intercourse with a person under sixteen years of age on 10 December 2011, MB be sentenced to eighteen months’ imprisonment to commence on 16 June 2013. (5) For the offence of using an electronic means to deprave on 29 December 2011, MB be sentenced to nine months’ imprisonment to commence on 16 June 2014. (6) For the offence of committing an act of indecency on the first complainant on 29 December 2011, MB be sentenced to twelve months’ imprisonment to commence on 16 August 2014. (7) For the offence of committing an act of indecency on the second complainant on 29 December 2011, MB be sentenced to twelve months’ imprisonment to commence on 16 August 2014. (8) For the offence of sexual intercourse with a young person under the age of sixteen years, namely, the first complainant, on 29 December 2011, MB be sentenced to twenty-two months’ imprisonment to commence on 16 October 2014. (9) For the offence of sexual intercourse with a young person under the age of sixteen years, namely, the second complainant on 29 December 2011, MB be sentenced to twenty-two months’ imprisonment to commence on 16 October 2014. (10) For the offence of committing an act of indecency on a person under the age of sixteen years, namely, the first complainant on 29 December 2011, MB be sentenced to twelve months’ imprisonment to commence on 16 December 2015. (11) The sentence be suspended on 18 December 2014 for a period of two years. (12) MB be required to sign an undertaking, under the Crimes (Sentence Administration) Act 2005 (ACT), to comply with the offenders good behaviour obligations under that Act, for a period of two years from today with a probation condition that he be under the supervision of the Director-General, or her delegate, and obey all reasonable directions of that person delegated to supervise him until 2 July 2015. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Judgment and Punishment – Sentencing – Re-sentencing – Breach of Good Behaviour Order – Further offence committed |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), ss 86(1), 110 Crimes (Sentencing Procedure) Act 1999 (NSW), s 17 |
Cases Cited: | Guy v Anderson [2013] ACTSC 5 R v MB (Unreported, ACTSC, Refshauge J, 3 July 2012) |
Parties: | The Queen (Crown) MB (Offender) |
Representation: | Counsel Ms S McMurray (Crown) Self-represented (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Self-represented (Offender) | |
File Number(s): | SCC 67 of 2012 |
Refshauge J:
On 3 July 2012, MB was convicted of eight offences involving sexual offences with children. He was sentenced to a total sentence of three years and six months’ imprisonment to commence the day before sentence, with the next twelve months to be served by periodic detention and then, from 2 July 2013, the sentence of imprisonment was suspended for two years with a good behaviour order.
That good behaviour order included also a probation condition and an obligation to be assessed for, and if suitable to undertake the ACT Corrective Services Adult Sex Offender Program. See R v MB (Unreported, ACTSC, Refshauge J, 3 July 2012).
One of the core conditions of every good behaviour order set out in s 86(1) of the Crimes (Sentence Administration) Act 2005 (ACT) is that an offender subject to a good behaviour order must not commit an offence against a Territory law or a law of the Commonwealth, a State or another Territory that is punishable by imprisonment.
On 19 November 2014, during the currency of the good behaviour order, MB was convicted in the Goulburn Local Court of New South Wales of an offence as a first offender driving with the mid-range prescribed concentration of alcohol.
This, it appears, is an offence against s 110(4) of the Road Transport Act 2013 (NSW), for which the maximum penalty is twenty penalty units (that is, a fine of $2,200), or nine months’ imprisonment, or both. See s 17 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
I am satisfied that MB has breached the good behaviour condition of the good behaviour order and, indeed, he admitted this.
As the order was made when a sentence of imprisonment was suspended, I am required, under s 110 of the Crimes (Sentence Administration) Act, if I am satisfied that any of the obligations have been breached, to cancel the order and either re-sentence MB or impose the sentence I then suspended.
In Saga v Reid [2010] ACTSC 59 at [99], I pointed out that it was important to take seriously breaches of the obligations under a good behaviour order, since failure to do so has the capacity to bring such orders into disrepute and lead offenders into believing that they can ignore then, with impunity.
As Sully J pointed out in R v Stone (1995) 85 A Crim R 436 at 440, conditions attached to such orders are not “optional extras” and breach of them must be addressed by sentencing courts resolutely.
I set out, in Guy v Anderson [2013] ACTSC 5 at [82]-[91], some considerations for the court when dealing with a breach of the conditions of a good behaviour order. These include that there is, in this Territory, no presumption that the period of imprisonment that has been suspended should be imposed. The court must, however, obviously give imposition of the sentence serious consideration.
Nevertheless, the court must consider the proportion between the consequences of the breach in terms of imposing the term of imprisonment that was suspended and the other circumstances surrounding the breach. Those circumstances include the nature and seriousness of the offence which constitutes the breach and its similarity or relevance to the original offence.
It seems to me also that the conduct of the offender more generally while subject to the good behaviour order is very relevant, that is the period of the good behaviour order for which the offender has been of good behaviour, any compliance with conditions, any progress in rehabilitation and the like are all relevant to a determination of how to proceed. The serious nature of the original offence is also a matter that needs to be considered.
I have no details of the offence committed by MB, though the formal description shows much about it. MB drove on a public street with a concentration of 0.08 grams but less than 0.15 grams of alcohol in 210 litres of breath or 100 millilitres of blood. This would, it appears, equate to a consumption of between five and eight seven ounce glasses of beer or six glasses of wine, although the exact amount would, of course, depend on the time between the drinking and the driving.
The offence is, I accept, a serious breach of road safety that is protected by such legislation, but there is no suggestion of an accident being caused as a result of this breach of the road rules or similar loss or injury.
Subjective circumstances
I do not need to repeat what I said when sentencing MB about his subjective circumstances. They are set out in my remarks on sentence, R v MB, and I adopt them.
I have heard, in addition, from MB’s Probation and Parole Officer and that was very helpful in these circumstances. He reported that MB has complied with supervision and attended and engaged well during the periods of supervision. When he had been unable to attend, he had made attempts to let the authorities know but these have been on rare occasions.
He has completed his periodic detention satisfactorily. He has also completed the ACT Corrective Services Adult Sex Offender Program. He is now proposing to continue with the “maintenance period” which involves, as I understand it, monthly meetings. He is currently employed and the Probation and Parole Officer indicated that his employer appreciates the work that MB does.
Before he was convicted for the drink driving offence which constitutes the breach of the Good Behaviour Order with which I am concerned, MB completed the Reverse Program, which I understand is a program relating to educating people about drink driving. That is the kind of program I was told that would be recommended by his Probation Officer should he have been convicted of that offence in this Territory.
There are no concerns about the supervision and no additional programs that were required. This is, as MB properly relied on, very positive progress during the period of the good behaviour order; this is to his credit and must be taken into account.
MB provided to me some written submissions which were very helpful. He expressed remorse and recognised that the offence was one of some seriousness and, as he frankly admitted, not one of which he is proud. He recounted to me the obstacles that I can imagine he had to overcome to get to the position where he now has.
He obviously descended into a period of depression where he lost his job and was relying on Centrelink benefits and, indeed, the depression led to his admission to his hospital and care under a psychologist and a psychiatrist. He has continued to be under the care of those professional persons and still sees his psychologist regularly.
Once he was discharged from hospital, he made particular efforts to change his lifestyle and to re-engage with the community and address the difficulties that he had to overcome. He found a gym. He addressed his health, both his mental health and his physical health, and he has obtained employment.
Consideration
In all these circumstances, it seems to me that I can minimise any additional penalty that ought to be imposed for the breach of the Good Behaviour Order and I will do so.
The legislation requires me, however, to re-sentence MB. That means that I need to impose sentences that are appropriate for the offences that he originally committed. I need, when doing so, to take into account that the conditional liberty to which I granted him following the completion of his periodic detention order has been breached by the commission of a further offence.
I need to be careful, however, that he is not punished twice for committing that offence, but the fact that he has now completed much of the sentence arrangements that I imposed means that I need to be careful about the way in which I sentence him.
In my view, the best way to do that is to sentence him to the same periods of imprisonment but to backdate those to take into account the days that he has already been in prison, the twelve months of the periodic detention. I think that, given that he has completed the Adult Sex Offender Program and completed much of the good behaviour order, I can allow a period of six months off that, effectively adding a period of slightly less than twelve months to the period of time when he will be under sentence and therefore of the good behaviour order.
I do not propose, however, in the circumstances and having heard and appreciated the work of his Probation Officer, to extend the period of the supervision.
MB, please stand:
(1)I find that you breached the Good Behaviour Order I imposed on 3 July 2012.
(2)I cancel the Good Behaviour Order made on 3 July 2012.
(3)For the offence of using an electronic means to deprave on 10 December 2012, I sentence you to nine months’ imprisonment to commence on 16 June 2013, to take into account your pre-sentence custody, the periodic detention and the partial completing of the Good Behaviour Order. Had you not pleaded guilty, I would have sentenced you to twelve months’ imprisonment.
(4)For the offence of sexual intercourse with a person under sixteen years of age on 10 December 2011, I sentence you to eighteen months’ imprisonment to commence on 16 June 2013. Had you not pleaded guilty, I would have sentenced you to two years’ imprisonment.
(5)For the offence of using an electronic means to deprave on 29 December 2011, I sentence you to nine months’ imprisonment to commence on 16 June 2014. Had you not pleaded guilty, I would have sentenced you to twelve months’ imprisonment.
(6)For the offence of committing an act of indecency on the first complainant on 29 December 2011, I sentence you to twelve months’ imprisonment to commence on 16 August 2014. Had you not pleaded guilty, I would have sentenced you to eighteen months’ imprisonment.
(7)For the offence of committing an act of indecency on the second complainant on 29 December 2011, I sentence you to twelve months’ imprisonment to commence on 16 August 2014. Had you not pleaded guilty, I would have sentenced you to eighteen months’ imprisonment.
(8)For the offence of sexual intercourse with a young person under the age of sixteen years, namely, the first complainant, on 29 December 2011, I sentence you to twenty-two months’ imprisonment to commence on 16 October 2014. Had you not pleaded guilty, I would have sentenced you to two years and six months’ imprisonment.
(9)For the offence of sexual intercourse with a young person under the age of sixteen years, namely, the second complainant on 29 December 2011, I sentence you to twenty-two months’ imprisonment to commence on 16 October 2014. Had you not pleaded guilty, I would have sentenced you to two years and six months’ imprisonment.
(10)For the offence of committing an act of indecency on a person under the age of sixteen years, namely, the first complainant on 29 December 2011, I sentence you to twelve months’ imprisonment to commence on 16 December 2015. Had you not pleaded guilty, I would have sentenced you to eight months’ imprisonment.
(11)That is a total sentence of three years and six months.
(12)I suspend that sentence today for a period of two years.
(13)I direct that you sign an undertaking, under the Crimes (Sentence Administration) Act 2005 (ACT), to comply with the offenders good behaviour obligations under that Act for a period of two years from today, with a probation condition that you be under the supervision of the Director-General, or her delegate, and obey all reasonable directions of that person delegated to supervise you until 2 July 2015.
[His Honour then spoke directly to MB]
MB, the sentence of imprisonment commences formally – and it is a bit of a “fiction” you will understand – from 16 June 2013 until 15 December 2016. I do not require you to serve any time in full-time custody or any further time in periodic detention. So it is the same now as when you finished your periodic detention, basically.
The supervision continues until July, so that is the same period, and thereafter there is no supervision but you are still under those conditions and, in particular, if you commit a further offence you can be brought back to me and dealt with again and that may include a sentence of imprisonment. I hope not, because I will have to read out all this stuff again. I only re-do this if that happens, but it is quite a different offence. It is still an offence and it breaches your obligations, so that is still important that you understand that, but we do take it seriously and for that reason I have taken the step of extending that period of imprisonment even though it has been suspended for a period of twelve months or about twelve months.
| I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Refshauge. Associate: Date: 27 January 2015 |
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