R v McColl
[2022] ACTSC 386
•2 June 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title:
R v McColl
Citation:
[2022] ACTSC 386
Hearing Date:
27 May 2022
Decision Date:
2 June 2022
Before:
Refshauge AJ
Decision:
1. Robert Malcolm McColl be convicted of aggravated robbery and be sentenced to 20 months imprisonment to commence on 26 May 2021 and end on 25 January 2023.
2. Robert Malcolm McColl be convicted of dishonestly driving a motor vehicle without consent and be sentenced to 10 months imprisonment to commence on 26 August 2022 and end on 25 June 2023.
3. Robert Malcolm McColl be convicted of culpable driving and be sentenced to 20 months imprisonment to commence on 26 March 2023 and end on 25 November 2024. It be noted that the six months automatic driving disqualification period commences today, 2 June 2022.
4. Robert Malcolm McColl be convicted of obtaining property by deception and be sentenced to 6 months imprisonment to commence on 26 August 2024 and end on 25 February 2025.
5. Robert Malcolm McColl be convicted of minor theft and be sentenced to 4 months imprisonment to commence on 26 December 2024 and end on 25 April 2025.
6. Robert Malcolm McColl be convicted of possessing stolen property and be sentenced to 1 month imprisonment to commence on 26 March 2025 and end on 25 April 2025.
7. A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Robert Malcolm McColl for 2 years from today, commencing on 2 June 2022 and ending on 1 June 2024, in respect of the primary offence of aggravated robbery of which he has been convicted and for which he has been sentenced to 20 months imprisonment.
8. That Order be extended to the offences of dishonestly drive motor vehicle without consent, culpable driving, obtaining property by deception, minor theft and possessing stolen property of which Robert Malcolm McColl has been convicted and for which he has been sentenced, and which are associated offences of the primary offence.
9. 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.
10. 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 June 2022, until 25 April 2025.
11. Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), Robert Malcolm McColl 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 day after the end of the Drug and Alcohol Treatment Order, 2 June 2024, until the end of the total sentence, 25 April 2025, 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.
12. 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. Robert Malcolm McColl 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
c. Robert Malcolm McColl comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.
13. Robert Malcolm McColl be directed to appear in Court on Friday 3 June 2022 at 11:30 am.
14. Robert Malcolm McColl be directed to attend the Court Registry before he leaves the Court precincts to sign a sealed copy of this Order 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 robbery – Dishonestly driving a motor vehicle without consent – Culpable driving – Obtaining property by deception – Minor theft – Possessing stolen property – Subjective circumstances – Youth – Childhood disadvantage – Mental health – Pre-sentence custody – Sentence of imprisonment – Drug and Alcohol Treatment Order application – Application successful
Legislation Cited:
Crimes (Sentence Administration) Act 2005 (ACT) s 85
Crimes (Sentencing Procedure) Act 1999 (NSW) s 68
Crimes (Sentencing) Act 2005 (ACT) ss 7, 12A, 33, 35, 46J, 46K, 80S, 80W, 80Y, 80ZA
Crimes Act 1900 (ACT) ss 29, 321
Criminal Code 2002 (ACT) ss 28, 310, 318, 321, 324, 326Sentencing Act 1991 (Vic) s 18
Cases Cited:
Agostino v Cleaves [2010] ACTSC 19
Barrett v The Queen [2016] ACTCA 38
Brown v The Queen [2020] VSCA 212; 62 VR 491
Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Director of Public Prosecutions (Vic) v O'Neil [2015] VSCA 325; 47 VR 395
Douglas v The Queen (1995) 56 FCR 465
Kennewell v Rand [2005] ACTSC 89
KT v The Queen [2008] NSWCCA 51; 182 A Crim R 571
Mandranis v The Queen [2021] NSWCCA 97
Markarian v The Queen [2005] HCA 25; 228 CLR 357
R v Alberts [2021] ACTSC 341
R v BB [2013] ACTSC 58
R v Burge [2022] ACTSC 376
R v Campbell [2021] ACTSC 359
R v Carney [2013] ACTSC 266
R v Castles [2018] ACTSC 358
R v Coleman [2021] ACTSC 349
R v Collins (No 2) [2018] ACTSC 294
R v Cooper [2012] ACTCA 9
R v Crawford (No 1) [2020] ACTSC 245
R v Donnelly [2021] ACTSC 336
R v Forrest (No 2) [2017] ACTSC 83
R v Fountain [2018] ACTSC 329
R v Guy [2018] ACTSC 270
R v Hayes [2010] QCA 96
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Higgins [2020] ACTSC 299
R v John [2017] ACTSC 144
R v Lovelock [2014] ACTSC 229
R v Lovelock [2020] ACTSC 376
R v Massey (No 3) [2021] ACTSC 156
R v Mathews [2020] ACTSC 364
R v Novakovic (a.k.a. Noland) (No 1) [2021] ACTSC 62
R v Ogle (No 2) [2018] ACTSC 126
R v Oliver (1980) 7 A Crim R 174
R v Reid (No 1) [2021] ACTSC 334
R v Richardson [2016] ACTSC 133
R v Ryan (1988) 33 A Crim R 288
R v Serena [2019] ACTSC 231
R v Shearer [2020] ACTSC 100
R v Tonna (No 2) [2020] ACTSC 362
R v Verdins [2007] VSCA 102; 16 VR 269
R v Watson [2021] ACTSC 339
R v Whyte [2002] NSWCCA 343; 55 NSWLR 252
R v Woods [2017] ACTSC 17
R v Zamagias [2002] NSWCCA 17
Sampson v De Haan [2016] ACTSC 327
Siganto v The Queen [1998] HCA 74; 194 CLR 656
Singh v The Queen [2017] ACTCA 17
Sladic v Proud [2013] ACTSC 232
Parties:
The Queen ( Crown)
Robert Malcolm McColl ( Offender)
Representation:
Counsel
E Wren ( Crown)
B Rutzou ( Offender)
Solicitors
ACT Director of Public Prosecutions ( Crown)
Legal Aid ACT ( Offender)
File Numbers:
SCC 179 of 2021
SCC 86 of 2022
SCC 87 of 2022
REFSHAUGE AJ
Introduction
1.The entry of young people into criminal activity is always a matter of concern and the more so when it is serious criminal activity.
2.It is desirable for the criminal justice system to try and prevent any further such activity, which is why the law makes it clear that rehabilitation is a primary focus of the judicial response to the offending by young offenders: see, for example, among many authorities, KT v The Queen [2008] NSWCCA 51; 182 A Crim R 571 at 577–8; [22]–[26].
3.Thus, it is now necessary to sentence Robert Malcolm McColl, aged 19 years, who has pleaded guilty to offences of aggravated robbery, culpable driving causing grievous bodily harm, obtaining property by deception, dishonestly driving a motor vehicle without the owner’s consent, unlawful possession of stolen property and minor theft. These offences were basically committed on three occasions, most significantly on two occasions, nearly three weeks apart.
4.In addition, Mr McColl has requested that a Drug and Alcohol Treatment Order (Treatment Order), under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) be made.
5.At sentencing, the Crown tendered the required Crown Tender Bundle. It contained the prescribed cover sheet, which is a most helpful summary of the broad parameters of the sentencing matters, the committal and transfer documents and the Agreed Statements of Facts for each occasion of offending.
6.It also contained Mr McColl’s very short Criminal History, two Victim Impact Statements which, importantly, the Crown prosecutor read out, a Pre-Sentence Report, a Justice Health Services Mental Health Assessment Form, a Forensic Psychiatric Report dated 18 January 2022 prepared by Dr Anthony Barker, consultant forensic psychiatrist, a Forensic Medical Report dated 13 January 2022 on Mr Robbie Williams, the victim of the offence of culpable driving causing grievous bodily harm, prepared by Dr Virginia French, staff specialist in forensic medicine, and a USB containing footage from the dash-cam of a motor vehicle approaching the intersection which was the site of the collision where that offence occurred, but which motor vehicle was otherwise not involved in the matter until afterwards. A dash-cam is a video camera mounted on the dashboard of a motor vehicle and used to record activity continuously through the vehicle’s windshield.
7.In addition, the Crown Tender Bundle included the Drug and Alcohol Treatment Assessments (Suitability Assessments) under s 46J of the Sentencing Act, prepared at the direction of the Court. These were a Drug and Alcohol Sentencing List Suitability Assessment Report dated 17 March 2022 of Alcohol and Drug Services of Canberra Health Services, as well as a Case Plan for Mr McColl, a Drug and Alcohol Treatment Assessment dated 31 March 2021 prepared by ACT Corrective Services and updated reports by Alcohol and Drug Services and ACT Corrective Services, dated 17 May 2022 and 19 May 2022 respectively.
8.The video footage of the dash cam was played to the Court, showing, in the distance, the collision and in particular, the vehicle driven by Mr McColl proceeding through a red traffic light. It also showed the location of Mr McColl’s motor vehicle after the collision.
9.As noted, Ms E Wren, counsel for the Crown, read out the Victim Impact Statements.
10.There was no objection to any of this evidence and no challenge to the contents of it.
11.During the sentencing hearing, a note was passed to the Court indicating that Mr Williams and his mother were in Court and would be available to speak to the Court. The Court was then adjourned and a brief conference was, with the consent of the defence, held between the Crown counsel and Mr Williams and his mother. When the Court resumed, Crown counsel, with consent, made a statement of the evidence that Mr Williams would give and this was admitted without challenge.
12.Mr B Rutzou, counsel for Mr McColl, did not adduce any additional evidence.
13.Both counsel did, however, provide carefully prepared, thoughtful and targeted written submissions, supplemented by helpful oral submissions, and these were of great assistance in identifying the particular issues.
14.From this material, the following findings are made.
The facts
15.On 19 April 2021, Mr McColl stole a number of items from a motor vehicle parked in front of a residence in Belconnen. The items included a black men’s wallet containing the owner’s driver licence, a bank-issued Mastercard and other various cards, as well as $300 in cash. In addition, the items included an invoice and receipt book of the owner’s business, carpet cleaning equipment, a toolbox, and an electric drill. The whole of the property was estimated to be valued at $500, an estimate accepted by Mr McColl. These were the events constituting the offence of minor theft.
16.Shortly after, the owner noticed the theft and reported it at Belconnen Police Station. In the meantime, Mr McColl had used the credit card at a petrol station and at stores including two supermarkets, shortly after which the use was notified to the owner. Mr McColl also used it for other purchases, including the purchase of grocery items, petrol, a bottle of drink, food and cigarettes. The total value of the property purchased by Mr McColl, without the owner of the card’s authority, was $514.29.
17.Police viewed the CCTV footage recorded at the supermarket and they were able to identify Mr McColl as the purchaser. These were the facts that led to the charge of obtaining property by deception, being a rolled-up charge for the six separate purchases.
18.On 7 May 2021, Mr McColl was out with some friends. He had drunk four beers that evening and then proceeded to drive a friend home. Another friend, Mr Williams, accompanied them. Despite statements made to the contrary to the police by both Mr McColl and Mr Williams, that the third male, the friend, had been dropped off at home, he was, according to the Agreed Statement of Facts, still in the vehicle in the back seat.
19.The motor vehicle was travelling with these passengers along Southern Cross Drive in Latham. Both Mr McColl and the passenger in the front seat, Mr Williams, were unrestrained by their seat belts fitted for the seats in the car that they occupied. There was no evidence as to whether the occupant of the back seat was restrained with a seat belt or not.
20.Checks later carried out on the motor vehicle showed that the registration plates affixed to the vehicle had been stolen earlier that day from a residence in Hawker, ACT. This resulted in the charge of unlawful possession of stolen property.
21.Mr McColl drove the motor vehicle along Southern Cross Drive, a major arterial road in Canberra. While there was no substantial evidence on this point, it can be accepted that there is usually some traffic on that road. There were, of course, two other vehicles, at least, in the area, that is the vehicle also involved in the collision and the vehicle from which the dash-cam footage was taken.
22.Mr McColl later told police that he decided to “show off” to Mr Williams by speeding and driving through a red light. He drove the motor vehicle fast, though there was no evidence of exactly how fast, and came to the intersection with Kingsford Smith Drive, where the traffic lights facing him were red. He drove straight through.
23.Another motor vehicle, however, was being driven along Kingsford Smith Drive. As the traffic lights facing it were green, the motor vehicle proceeded into the intersection. As the motor vehicle being driven by Mr McColl approached the intersection, it was driven at speed straight through, failing to stop for the red traffic light and collided with the front right-hand side of the other vehicle.
24.That other vehicle came to a rest on the concrete median strip, while the motor vehicle being driven by Mr McColl rolled several times and Mr Williams was thrown from the vehicle through the side window. The vehicle came to rest on the southern side of Southern Cross Drive, shown upside down on the footage from the dash-cam of the third vehicle. Both Mr McColl and the third male got out of the upturned vehicle and fled the scene of the collision on foot.
25.Mr Williams remained on the road until paramedics in an ambulance of ACT Ambulance Services arrived. He was taken to The Canberra Hospital and admitted with serious head injuries. These were later identified at the hospital as a severe traumatic brain injury which led to post-traumatic amnesia for 10 days, complex calvarial and bases of skull fractures, severe bruising and haemorrhage into the brain tissue, fractures of the collar bone, fingers, tooth and manubrium (breastbone), a pneumothorax to the left lung, contusion to the right lung and abrasions to his left elbow, right hand and buttocks.
26.He underwent various investigations, including multiple CT scans and emergency surgery. He subsequently received speech pathology, physiotherapy, occupational therapy, neuropsychology, clinical psychology and audiology rehabilitation. He spent some time at the Brain Injury rehabilitation Unit of Liverpool Hospital, Sydney.
27.He continues to suffer from a number of ongoing disabilities, including some memory loss and confusion, and continues to receive ongoing physiotherapy and speech therapy, as well as dental work. He continues to experience regular headaches, dizziness, difficulties with his hand, a plate in his shoulder which has not fully healed and difficulties with his knees.
28.Later that day, Mr McColl attended The Canberra Hospital with the mother of Mr Williams. He was subject to a blood test, which showed that his blood alcohol content was 0.055 grams of alcohol in 100 millilitres of blood, taken at 1:43 am, some three hours after the collision.
29.He was later approached by ACT Police Officers on 17 June 2021, served with an Immediate Suspension Notice and offered the opportunity to participate in a record of interview, which he declined.
30.On 1 August 2021, Mr Williams spoke to police. His evidence was consistent with these facts, save that he said that the third male had been taken home and, at the time of the collision, there was only Mr McColl and himself in the motor vehicle. These were the facts that led to the charge of culpable driving causing grievous bodily harm.
31.At about 5:25 pm on 24 May 2021, however, Mr McColl approached a woman who was returning to her motor vehicle, a 2018 Subaru sedan WRX STI model (WRX). The motor vehicle was parked at the Jamison Tennis Club carpark in Macquarie, ACT. He said to her “give me your keys”. The car owner took half a step back, but Mr McColl grabbed her left hand and pointed a knife in his other hand towards her stomach, saying, “I’ll fuck you up”. The car owner feared that she would be assaulted.
32.Mr McColl then snatched the keys from the owner’s grasp, got into the WRX and drove away, though the owner was able to retrieve her handbag and laptop bag from the front passenger seat before the vehicle left. The owner reported the matter to police. She had not given Mr McColl permission to threaten or assault her, or to take the WRX.
33.These were the facts that founded the charge of aggravated robbery, the circumstance of aggravation being the use of a weapon.
34.Early the next day, Mr McColl drove the WRX from where it was parked in Allott Place, Belconnen, ACT. This constituted the offence of dishonestly driving a motor vehicle without the owner’s consent. Mr McColl driving away was captured on some CCTV at the location.
35.He appeared to have later returned the WRX to that place, where it was seized by police at about 9:18 pm that day.
36.The police also executed a search warrant at 11 Florance Place, Macquarie on the next day, 26 May 2021. It is not clear why the warrant was directed to that place, as it is not shown on any documents to be Mr McColl’s known place of residence. It was not the place where the police seized the WRX and it was some 750 metres from where the WRX was seized, and some 350 metres from where Mr McColl had stolen it.
37.Mr McColl was, in any event, at the location and police, in executing the search warrant, seized a number of items including the keys to the WRX and a knife fitting that described by the owner of the WRX as being sued by Mr McColl in the aggravated robbery. Clothes and other items found were consistent with those shown on the CCTV footage from Allott Place.
38.Mr McColl was arrested and taken to the ACT Watchhouse.
The proceedings
39.As noted, Mr McColl was arrested on 26 May 2021 and appeared in the ACT Magistrates Court that day. He was charged with aggravated robbery and dishonestly driving a motor vehicle without the owner’s consent. He was remanded in custody.
40.After a number of adjournments, while he remained in custody, he entered pleas of guilty on 28 July 2021 and was committed on these charges to this Court for sentence. He remained in custody.
41.On 13 October 2021, however, summonses were issued for the remaining offences. That is, culpable driving causing grievous bodily harm, dishonestly obtaining property by deception, minor theft and unlawful possession of stolen property. The summonses were made returnable on 14 December 2021, but had not, by then, been served and so, were amended to be returnable on 15 March 2022.
42.Mr McColl appeared in the ACT Magistrates Court on that day and, after one adjournment to 5 April 2022, he entered pleas of guilty to each offence and was committed for sentence by the Supreme Court and the summary charges were transferred to this Court also.
43.By this time, the earlier proceedings had been referred in the Supreme Court to the Drug and Alcohol Sentencing List. Mr McColl had appeared in that List on 18 February 2022, when the Suitability Assessments were ordered to be prepared.
44.The matters were adjourned to 8 April 2022 and, on that day, the other more recently committed and transferred offences were listed to proceed together for sentence. Updated Suitability Assessments were directed to be prepared and the matter listed for sentence on 27 May 2022. Mr McColl remained in custody.
45.Mr McColl has now been in custody continuously since 26 May 2021, a total of 373 days. This pre-sentence custody must be taken into account in sentencing Mr McColl.
The offences
46.The consequence of Mr McColl admitting, as he has by his plea of guilty, to having performed the acts recounted above, is that he has accepted that he breached the criminal law by committing the offences identified as having been constituted by those acts.
47.To address these breaches of the criminal law, the Court must now impose a sentence for the offences, and that sentence must be just and adequate: Singh v The Queen [2017] ACTCA 17 at [93].
48.This requires the Court to consider the various matters which are, in this Territory, helpfully set out in s 33(1) of the Sentencing Act, generally encoding the common law but permitting consideration of other relevant matters: s 33(3) of the Sentencing Act.
49.The first matter to consider is the nature and circumstances of the offences (s 33(1)(a) of the Sentencing Act), since this must be a primary consideration in a proper exercise of the sentencing discretion.
50.This requires consideration of a number of matters. First, of course, the actual facts must be found, as has been done above (at [15]–[38]). Then, the High Court has emphasised in a large number of decisions, perhaps the most clearly in Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 372; [30]–[31], that the maximum penalty set by the legislature for the offence must be considered. Then, in part, as a consideration of current sentencing practice (s 33(1)(za) of the Sentencing Act), the Court must identify the particular factors that are relevant to identifying the seriousness of the offence as actually committed by Mr McColl, as most offences can be committed in a wide variety of ways and circumstances which affect the seriousness of them and, thus, the sentence that will be just and adequate.
51.Aggravated robbery is made an offence by s 310(b) of the Criminal Code 2002 (ACT), which prescribes a maximum penalty of 25 years imprisonment, or a fine of $400,000, or both. It is, thus, a very serious offence, among the most serious of the criminal law.
52.Robbery is a crime of both violence and dishonesty (R v Watson [2021] ACTSC 339 at [38]), hence its seriousness. The aggravated form of the offence is committed when it is, for example, committed, as here, with the use of a weapon.
53.The crime has been considered in some detail in a number of decisions of this Court, especially influenced, as noted in R v Campbell [2021] ACTSC 359 at [26], by the New South Wales Court of Criminal Appeal guideline judgment of R v Henry [1999] NSWCCA 111; 46 NSWLR 346.
54.The fact that the weapon was a knife is important for the reasons set out in R v Campbell at [27]. There was no actual violence, but there was a real threat of it being used. The car owner was, it appears, in a vulnerable position with no apparent other people in the vicinity, despite the time and place. The victim was, as her Victim Impact Statement attests, clearly affected, at first bemused and dumbfounded, but not for long, and then frightened, though she managed to regain her composure sufficiently to call the police.
55.As noted in R v Lovelock [2020] ACTSC 376 at [17], premeditation or planning will make such an offence more serious. There is no evidence of this. Of course, Mr McColl had to have a knife with him, which makes the offence likely not to have been merely opportunistic, but hardly planned.
56.Mr McColl acted alone; there were no other offenders, which would have aggravated the offence: R v Watson at [41]. The value of the property taken is also a relevant factor: R v Coleman [2021] ACTSC 349 at [31]–[32]. Here, there was no evidence of the value of the car that Mr McColl stole, but it was clearly of significant value. The owner, the victim of the offence, had saved up for it for some time, having, as she said, “worked hard to pay off [her] previous car”, which it replaced. It also had a particular personal value for her, the “pride and joy” which she had “worked hard and dreamed of owning”.
57.The location can be relevant: R v Alberts [2021] ACTSC 341 at [30]. Here, it was a carpark. It was a Monday afternoon at about the time when other people may have been expected to be around, as it was during what, for a working day, would be peak hour in a public and open parking area.
58.Thus, while a serious offence, it was not a very serious version of the offence.
59.Dishonestly driving a motor vehicle without consent is an offence against s 318(2) of the Criminal Code, which attracts a maximum penalty of five years imprisonment or a fine of $80,000, or both.
60.The offence has been considered in many cases, and some of the relevant factors are helpfully summarised in R v Massey (No 3) [2021] ACTSC 156 at [27]–[32]. See also R v Reid (No 1) [2021] ACTSC 334 at [27]–[29]. It is not necessary to set out all the possibly relevant factors, but only those actually applicable here to assess the seriousness of the offence Mr McColl committed.
61.Thus, the fact that the motor vehicle was recovered and, so far as the evidence shows, undamaged, makes it a less serious version of the offence than many seen in the courts. Again, so far as the evidence shows, the motor vehicle was not used in the commission of other offences.
62.The time during which it was driven, and the distance travelled, is relevant but unclear. Interestingly, the CCTV was not used to show its return from where Mr McColl drove it away (Allot Place), so as to tell at least the time of the driving. The only places with which Mr McColl was also associated were, in total, just over one kilometre apart, though his home, in Higgins, would be about 6.5 kilometres away, a round trip of 13 kilometres. This is, of course, purely speculative and the only actual known driving is from the parking area of the Tennis Club to where it was located by police. On the other hand, while the driving was unclear, it was in Mr McColl's possession, or under his control, for just less than 28 hours, which would, of course, be a significant concern to the owner and cause her inconvenience.
63.The offence was, of course, part of a course of conduct and a result of the aggravated robbery, so that a degree of concurrency in sentence will be appropriate.
64.Culpable driving causing grievous bodily harm is contrary to s 29(4) of the Crimes Act 1900 (ACT), and the legislature prescribes a maximum penalty of 10 years imprisonment.
65.Again, the New South Wales Court of Criminal Appeal has published a guideline judgment which has considered a similar offence. This is the decision of R v Whyte [2002] NSWCCA 343; 55 NSWLR 252. The offence there, however, is slightly different. It is “dangerous driving occasioning grievous bodily harm”, which requires the offender to have been driving under the influence of alcohol or a drug, at a speed dangerous to others, or in a manner dangerous to others.
66.An offender in the ACT is held to be culpable if he or she drives negligently or under the influence of alcohol or a drug “to such an extent as to be incapable of having proper control of the vehicle”. Negligently is defined (s 29(7) of the Crimes Act) to mean that the person “fails unjustifiably and to a gross degree to observe the standard of care that a reasonable person would observe in all the circumstances of the case.” Thus, while the tests are different so that some comments in R v Whyte may not be directly apposite, there is much commonality between the offences.
67.Further, the maximum penalties are different: seven years imprisonment in New South Wales and 10 years imprisonment in the ACT. These must be taken into account. Nevertheless, as held in R v Ogle(No 2) [2018] ACTSC 126 at [36], R v Whyte can be used to identify relevant factors. Indeed, as long ago as 2005, it was relied on by a Magistrate and, on appeal, that approach was not disturbed: Kennewell v Rand [2005] ACTSC 89.
68.The relevant factors set out in R v Whyte at 286; [216]–[217], not all of which are relevant here, are:
(i) Extent and nature of the injuries inflicted.
(ii) Number of people put at risk.
(iii) Degree of speed.
(iv) Degree of intoxication or of substance abuse.
(v) Erratic driving.
(vi) Competitive driving or showing off.
(vii) Length of the journey during which others were exposed to risk.
(viii) Ignoring of warnings.
(ix) Escaping police pursuit.
[…]
(x) Degree of sleep deprivation.
(xi) Failing to stop.
69.There is no doubt here that the driving through a red traffic light at speed was an unjustifiable failure to observe the standard of care of a reasonable person.
70.The injuries inflicted have been described. They were very serious and have had a long-term effect on the victim. No doubt the fact that neither Mr Williams nor Mr McColl were wearing seat belts exacerbated the injuries to them both. There were four people put at risk, the three in Mr McColl's car and the driver of the other car. There was speed, but there was no real evidence of how fast the vehicle was travelling, though the speed limit was exceeded and that is 80 kilometres per hour in that area. Mr McColl had admitted having some alcohol and, some hours later, was marginally affected, though his later account of his alcohol consumption suggests that he is likely to have had more over the whole of the day than that referred to by police. There is no reliable evidence as to his state of intoxication at the time. On his version, he drank about four beers and was not severely intoxicated, though the time over which they were consumed is relevant, but not stated.
71.Mr McColl admitted to showing off in the driving. There was no competitive or erratic driving, no warnings, no police pursuit or sleep depravation so far as the evidence shows. Mr McColl did flee the scene, but he did later attend The Canberra Hospital and was subject to an alcohol blood test.
72.The offence was serious, but by no means a very serious one, as are seen in these Courts.
73.Obtaining property by deception is prohibited by s 326 of the Criminal Code and renders Mr McColl liable to a maximum penalty of 10 years imprisonment, or a fine of $160,000 or both.
74.This charge is a rolled-up charge, that is to say, a collection of counts of the one offence. In this case, a number of uses of the credit card were rolled up into one count. The one charge covers a number of acts which could all have led to separate charges for the same offence. See R v Forrest (No 2) [2017] ACTSC 83 at [161].
75.The principles relating to the sentencing of rolled up pleas have been summarised helpfully in R v John [2017] ACTSC 144 at [107] as follows:
·for sentencing purposes, the rolled up count is one charge and the sentence may not exceed the maximum penalty for the offence charged;
·nevertheless, the criminality encompassed within the count is greater than were the count to be constituted by only one offence;
·the sentence is not necessarily, and perhaps not usually, the sum of the sentences that would be imposed for the offences comprising the count, though in an appropriate case it may be; and
·the fact that the count is a rolled up count may have a bearing on the application of the relevant principles as to accumulation or concurrency.
76.As is usually the case with this offence, it is the improper use of a credit card. See R v Donnelly [2021] ACTSC 336 at [65], where it was also pointed out that it is, in this day of “tap and pay”, an easier offence to commit, which is relevant to sentence.
77.The major issue is the amount of property obtained in this way. There were several purchases and the total spent on them was $514.29, so it is not a substantial amount, though not the smallest seen in respect of such offences.
78.The offence of minor theft, which is for larceny of an amount less than $2,000, is made a crime by s 321 of the Criminal Code, for which the maximum penalty is six months imprisonment or a fine of $8,000, or both.
79.Again, the major consideration is the amount stolen: Sampson v De Haan [2016] ACTSC 327 at [41]–[42]. In this case, that was valued at $500. There would, however, have also been significant inconvenience caused to the victim by the loss of his wallet, which contained his driver licence, Medicare Card, Working with Children ID and “a variety of other membership and identification cards”.
80.There were no relevant circumstances of the theft that aggravated it. The theft occurred in the mid-afternoon and it appears from the evidence that Mr McColl simply opened the doors to the motor vehicle and took the property. It was not a particularly serious version of the offence and no contrary submission was made to this effect.
81.The final offence is unlawful possession of stolen property, which is contrary to s 324(1) of the Criminal Code, for which a maximum penalty of six months imprisonment or a fine of $8,000, or both, is set.
82.The items of stolen property were the registration plates on the vehicle being driven by Mr McColl on 7 May 2021. They had been stolen that morning, though there is no evidence as to who had done so and no evidence to suggest that Mr McColl had done so. There was also no allegation that the vehicle itself had been stolen. As this offence is an important support for the integrity of traffic regulation, this dishonesty is more serious than simply the loss of the registration plates by their owner, which would, of course, be an inconvenience.
83.Nevertheless, it was not a particularly serious version of the offence, given the value of the property and the circumstances of their possession.
Subjective circumstances
84.The next matters of importance for consideration by a court required to sentence an offender are the relevant subjective circumstances of the offender. This is the subject of a number of provisions in s 33(1) of the Sentencing Act, especially s 33(1)(m)–(o) of that Act.
85.Mr McColl was born in Canberra, the second of his parents’ two children. His sister is three years older. He has lived in Canberra all his life.
86.His home life was chaotic and disrupted. He was exposed to significant family violence and alcohol and often drug use by his parents. His mother was dependent on alcohol and his father suffered from some mental health challenges. His parents separated when he was three years old and parenting was shared. His father, however, was violent towards him and he refused to go to his home after the separation.
87.Life with his mother was not perfect either, however, as the house was often without food and he was often unsupervised. As a result, from age eight, he would often run away from home and sleep rough. Finally, when he was 15 years old, he left home for good, couch surfing and often experiencing homelessness.
88.In recent years, his father, who had been a regular methamphetamine user, suffered a drug induced psychotic episode, requiring a lengthy inpatient admission to a facility. Mr McColl witnessed this, becoming very fearful and distressed. His father, however, has been “clean and sober” since then and Mr McColl has managed to establish a strong and good relationship with him. He plans to live with him when he is released from custody. Unfortunately, his relationship with his mother remains distant.
89.Mr McColl had difficulties at school. He would regularly instigate fights and he described himself as “a bit of a bully”. As a result, he was frequently suspended and finally sent to Galilee School, self-described as “an independent secondary school," conducted by Communities at Work, which is “designed specifically for disengaged and vulnerable young people […] for whom the mainstream schooling environment has struggled to deliver positive outcomes”. He finally left with a School Certificate at Year 10.
90.Mr McColl had a significant personal relationship with the same partner from age 14 to approximately when he was arrested and taken into custody. He has no dependents.
91.He did obtain some employment after leaving school. Most of it was short-term, of less than three months. It included retail work, employment in a fast food establishment, as well as working in a supermarket and as an arborist and in utilities. Prior to his arrest he was unemployed, receiving Centrelink benefits.
92.Mr McColl has a significant history of drug use. His main drug is alcohol, which he first drank when he was 12 years old. There were some inconsistencies in the history he gave to the various authors of the five reports tendered to the Court, but it appears that the position is as follows.
93.He started drinking alcohol seriously when he left home, primarily to relieve his stress. Not much later, he began drinking daily, initially about two or three drinks in a day, consuming a litre of rum in a week. He felt it was not a problem.
94.His use, however, appears to have escalated, especially after the collision the subject of the current charge of culpable driving causing grievous bodily harm.
95.He would drink alcohol on waking up each day, drinking throughout the day until he became unconscious, usually late in the afternoon. He reported prioritizing alcohol over groceries and consuming, on average, half a litre of rum each day. He reports severe withdrawal symptoms upon his entry into custody, saying that alcohol was “all I could think about”. Relevantly, one disciplinary action taken against him while in custody was for possession or dealing with “jail made brew”.
96.He says that after eight months in custody his craving “went away”, saying “I’m not attracted at all now”, though he acknowledges his vulnerability. Alcohol is his main drug of concern, but he has used others.
97.He used tobacco from age 11 and was smoking daily from 15 years old. He currently smokes 15 cigarettes a day and is not interested in ceasing use.
98.He has consumed cannabis, which he first used when he was 11 years old. He was using daily by the age of 16, usually as a means of easing methamphetamine withdrawal when he was using two points a day of that drug. He told his examining psychiatrist that, in 2018, “it put me into a psychosis. I stayed in a psychosis for eight months… I can’t touch cannabis now”.
99.He started using methamphetamine when he was aged 16, [redacted], and was soon “loving the high” the drug provided. His use gradually escalated up to two points a day over about six months, but he experienced persecutory delusions while using it and, after a drug induced psychotic episode, for which he sought no treatment, he simply stopped using it and has no desire to resume use again.
100.He has used MDMA/Ecstasy sporadically, especially at parties, but has used no other drug.
101.He has had no alcohol, tobacco or other drug treatment.
102.Mr McColl has no physical health issues or problems, apart from a broken elbow as a child and a broken rib sustained in 2021, but has a complex and not entirely clearly mental health history.
103.He reports that when he was a child, he was diagnosed by a psychiatrist with “ADD and ADHD”, though the difference between the two is unclear. Indeed, it has been suggested that ADD is an outdated term that is typically used to describe an inattentive type of ADHD. He was prescribed Ritalin and Sertraline, but was not compliant with his medication regime.
104.He also reported that, in custody, he had been diagnosed with schizophrenia, but there is no record of this. He has, however, reported auditory hallucinations since 2016. Dr Anthony Barker notes that Mr McColl “endorsed experiencing several features of borderline personality disorder”. Dr Barker’s opinion was that he “suffers from significant personality vulnerabilities (i.e. borderline personality traits).” He considered it likely that there was “a realistic connection between Mr McColl’s maladaptive personality features and the index offences”. Dr Barker said:
Noting that Mr McColl experiences a number of borderline personality traits (e.g., affective instability; transient stress-related paranoid ideation; and episodes of inappropriate, intense anger), it is likely to that these symptoms had the effect of: causing or contributing to his offending; impairing his ability to exercise proper judgment; impairing his ability to make calm and rational choices and think clearly; making him disinhibited; impairing his ability to appreciate the wrongfulness of the conduct; and obscuring the intent to commit the offence. However, it is likely that Mr McColl's use of alcohol also significantly contributed to his presentation at the time and acted in a synergistic fashion with his borderline personality traits.
105.Mr McColl has a very short criminal history. [Redacted for legal reasons]. These offences are his first and only criminal offences of which he has been charged as an adult.
106.He has, however, been assessed as at a high risk of general reoffending.
107.Mr McColl was cooperative and engaged with the assessments for preparation of the Suitability Assessments. He was described as “forthright in his communication and appeared to have reflected on his actions”. He was said to have expressed “motivation to address his excessive alcohol consumption, continue his mental health treatment and lead a law-abiding lifestyle in the community”. He did ask questions about a Treatment Order and appeared to understand the answers and accept the level of obligation that treatment entails.
108.He said that the offences were committed in connection with his alcohol use.
Youth
109.A number of important issues are relevant in the sentencing of Mr McColl. One of these is his age. He is currently 19 years old, but was 18 at the time of the offending.
110.While he is an adult at law for sentencing purposes, he is still a young man. As explained in R v Tonna (No 2) [2020] ACTSC 362 at [44]–[48], the consideration and emphasis on rehabilitation that is required when sentencing youthful offenders is not confined to those under the age of 18 years. As expressed there (at [46]), “there is no bright line”. It is a gradual process: [47].
111.The principles of sentencing have been summarised in R v BB [2013] ACTSC 58 at [72] as follows:
(1)Considerations of general deterrence and principles of retribution are, in most cases, of less significance when sentencing a young person than when sentencing an adult for the same offence.
(2)Young people, in recognition of their capacity to reform and mould their character to conform with society’s norms, require considerable emphasis to be placed on the need to provide an opportunity for rehabilitation.
(3)The law recognises that the cognitive, emotional and psychological immaturity of a young person contributes to their breaching of the law and so allowance is made for youth and not just their biological age.
(4)The weight given to such youth does not vary depending on the seriousness of the offence.
(5)Considerations of general deterrence and retribution cannot be completely ignored as there is a considerable public interest in deterring criminal conduct.
(6)The emphasis on rehabilitation rather than general deterrence or retribution may be moderated where a young offender has behaved in the way adults might behave, thus considering matters such as use of weapons, pre-meditation, prior history, and the nature and circumstances of the offence.
(7)The weight given to these considerations diminishes as the offender’s age approaches the age of maturity.
112.Thus, while Mr McColl should not be sentenced as though he were a child under the special regime legislated for them, he is to be afforded much of the moderation appropriate to a young person to the ordinary rigours of sentence appropriate to adults, perhaps itself moderated to a degree by the particulars of the offending behaviour.
113.Much of the offending, though, clearly has the hallmarks of immaturity, which reflects the reality of such an approach.
Childhood disadvantage
114.There is no doubt that, as described, Mr McColl suffered considerable disadvantage in his early years. He was exposed to violence and drug and alcohol use and he had little parental support and supervision, as would be expected. He had a disrupted schooling.
115.It is now accepted by the Courts that this childhood disadvantage requires a Court sentencing such an offender to recognise that and take into account that this will moderate the moral culpability of the offender: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 594–5; [43]–[44].
116.The Court there noted that this principle does not diminish over time, either with increasing age or experiences in the criminal courts.
117.Both counsel submitted that these principles were applicable when sentencing Mr McColl.
Mental health
118.A civilised society does not impose punishment on a person who is not mentally responsible for their conduct. That is why the law provides for the verdict of not guilty because of mental impairment: s 321 of the Crimes Act. That mental impairment must, for such a verdict, have the effect that the person does not know the nature and quality of the conduct committed, or that the conduct is wrong or could not be controlled: s 28 of the Criminal Code.
119.Impaired mental functioning less than such mental impairment may, in certain circumstances, however, moderate the sentence that must be otherwise imposed. In R v Verdins [2007] VSCA 102; 16 VR 269 at 275; [26], the Victorian Court of Appeal set out a non-exhaustive list of ways in which impaired mental functioning at the time of offending may reduce the offender's moral culpability and, thus, moderate the sentence to be imposed. These were:
(a) impairing the offender’s ability to exercise appropriate judgment;
(b) impairing the offender’s ability to make calm and rational choices, or to think clearly;
(c) making the offender disinhibited;
(d) impairing the offender’s ability to appreciate the wrongfulness of the conduct;
(e) obscuring the intent to commit the offence; or
(f) contributing (causally) to the commission of the offence. (footnotes omitted)
120.The Court then proceeded to set out six ways in which such a finding may affect the sentence: R v Verdins at 276; [32]. This approach has been accepted in this Territory: Agostino v Cleaves [2010] ACTSC 19; R v Cooper [2012] ACTCA 9.
121.It is clear that Mr McColl has some mental impairments. The report of Dr Barker, parts of which were set out above, shows that. Dr Barker, however, describes them as “borderline personality traits”. There has been an issue about whether a borderline personality disorder is a mental impairment for the purposes of the principles in R v Verdins.
122.This arose because the Queensland Court of Appeal in R v Hayes [2010] QCA 96 and the Victorian Court of Appeal in Director of Public Prosecutions (Vic) v O'Neil [2015] VSCA 325; 47 VR 395 both held that a borderline personality disorder could not enliven these principles.
123.The Queensland Court of Appeal explained in R v Hayes at [28]:
There is no substance in the submission the applicant’s borderline personality was not taken into account in determining the appropriate sentence. It was irrelevant. A prisoner’s mental illness which reduces her capacity for judgment or understanding, or ability to control behaviour, and therefore reduces the moral blameworthiness in the offending is rightly regarded as an important mitigating factor in the sentencing process. It is my understanding that the law has never regarded personality disorders as having this effect. This is for the reason that they are not illnesses which impact upon the capacity of the sufferer to perceive the world around her and respond to it. A personality disorder is a description of a personality type, or the traits which define the person and the person’s predominant modes of behaviour. The personality type becomes a disorder when the traits become manifest in behaviour which “deviates markedly from the expectations of the (person’s) culture”, and leads to “distress or impairment”. The passages are from DSM IV […]
124.The reasons for decision in Director of Public Prosecutions v O'Neil at 418; [85]–[86] were to the similar effect.
125.Subsequently, however, an offender sentenced in the Supreme Court of Victoria sought to have her sentencing influenced by her borderline personality disorder and when the sentencing court, bound by these decisions, declined to do so, she appealed to the Victorian Court of Appeal, seeking to challenge Director of Public Prosecutions v O'Neil. The Court convened a bench of five judges and unanimously held that such a broad rejection was unjustified, though it did not accept that without limitations: Brown v The Queen [2020] VSCA 212; 62 VR 491. The Court explained at 509; [68]–[69] (emphasis added, footnote omitted):
[68] Looking ahead, it would seem from the expert evidence that a personality disorder is likely to engage the Verdins principles only in a case of some severity. But, plainly enough, it is not for this Court to suggest any threshold level of severity which must be reached before those principles would become applicable. Senior counsel for the Director properly conceded that this was so.
[69] Nor is it appropriate to say more about those categories of personality disorder (anti-social personality disorder and narcissistic personality disorder) about which the expert witnesses expressed scepticism. As we have noted, their evidence was that the attachment of those diagnostic labels may be no more than descriptive of maladaptive behaviour and, hence, will provide no insight into an offender’s mental functioning. Whether in a particular case involving such a disorder the expert evidence establishes a clinically significant impairment of mental functioning will, of course, depend on the circumstances of the case and the nature and content of the expert opinion.
126.This is the approach that should be taken. The question is, then, whether the disorder diagnosed by Dr Barker is “of some severity”. The Crown submitted that it was not. Dr Barker set out also in his Report the notes of Dr Paul Collbran, psychiatric registrar, who, it appears, examined Mr McColl in custody in the Alexander Maconochie Centre on a number of occasions. He diagnosed Mr McColl as suffering from “complex PTSD; depression and anxiety (secondary to cPTSD)”. He was treated with medication of some significance, Sertraline and Risperidone, and with psychological therapy. While Dr Barker differed in the diagnosis, describing it as “significant personality vulnerabilities (i.e., borderline personality traits)”, he also said that it was consistent with Dr Collbran's diagnosis “as there is a significant overlap in the symptomatology of this condition and borderline personality features.”
127.While Dr Barker did say that the symptoms he diagnosed were “likely” to have caused the impairment that he identified. He added, however, that it was also likely that the alcohol consumption of Mr McColl “also significantly contributed to his presentation at the time and acted in a synergistic fashion with his borderline personality traits”.
128.This does not mean that the relevant traits are irrelevant if the alcohol consumption is the major component. Indeed, it appears to mean that the reaction of both the alcohol and the traits were the reason the offending occurred as it did. The diagnosis means, as written, that the traits themselves were a significant contributing factor to the offender, or in contribution with the alcohol, were such a factor. What, however, the Crown cannot show is that Dr Barker was opining that the alcohol consumption, without the traits, would have significantly contributed to the offending. This is not Dr Barker's opinion as set out in the Report.
129.So far as the use of the word “likely” is concerned, that appears to be sufficient in the circumstances. It must be borne in mind that Mr McColl is seeking to rely on this matter in mitigation. He must, therefore, only prove it on the balance of probabilities: R v Carney [2013] ACTSC 266. This has been done.
130.The principles in R v Verdins are applicable. Mr McColl's mental impairment, as diagnosed, will reduce his moral culpability for the offending conduct, moderate the role of general deterrence, though not eliminate it, and moderate the role of specific deterrence.
Pre-sentence custody
131.In R v Crawford (No 1) [2020] ACTSC 245 at [91]–[111], the Court considered the question of how pre-sentence custody should be taken into account in sentencing. Though the context was that of the possibility of the making of a Treatment Order, the consideration is applicable more generally. This is especially so when determining how it is to be dealt with in relation to the making of an Intensive Correction Order (ICO), which was also mentioned (at [96]–[98]), and other forms of restrictions such as pre-sentence immigration detention (at [99]).
132.It was suggested, in that case, that the common law permitted pre-sentence custody to be taken into account by deducting that period of pre-sentence custody from the sentence that would otherwise be imposed. It is not clear, however, that the Victorian authorities cited in that case actually reflected the common law, but rather relied on s 18(1) of the Sentencing Act1991 (Vic), which expressly provided for time in custody to be deducted from a sentence. It is not necessary, however, to consider that matter further.
133.Mr Rutzou, in his diligently explored submissions, drew the Court's attention to Mandranis v The Queen [2021] NSWCCA 97, where the Court considered that it was permissible to deduct the period of pre-sentence custody to permit an ICO to be made. Under s 68 of the Crimes (Sentencing Procedure) Act 1999 (NSW), an ICO could not be made where, in respect of a single offence, the duration of the term of imprisonment imposed exceeded two years.
134.The Court followed the approach established in R v Zamagias [2002] NSWCCA 17, where the Court sentencing an offender was required to determine first a sentence appropriate for the offence, offender, and other required considerations and then consider whether it was appropriate to be served by an ICO (at [25]–[26]). This is the approach taken in this Court to the making of a Treatment Order: R v Burge [2022] ACTSC 376.
135.In that case, the proper term of imprisonment was held by the Court to be two years and three months. The Court held, however, that an ICO was appropriate. The issue was how to do that when the length of the term exceeded that permitted. In this respect, the provision is similar to s 12A(1)(b) of the Sentencing Act, which limits the making of a Treatment Order to those imprisoned for between one and four years.
136.In Mandranis v The Queen, the Court held (at [61]) after the period of sentence was determined that “it would, if an ICO is found to be appropriate, be acceptable for that term to be adjusted by the deduction of a period equivalent to the term of pre-sentence custody, so that the ICO commences on the day it is made”. It was urged on the Court that, if the sentence to be imposed on Mr McColl were in aggregate to exceed four years, the lengthy period of his pre-sentence custody of over 12 months could be deducted in the same way.
137.This approach was rejected in R v Crawford (No 1), but the Court is not necessarily bound by that decision, though it did not address the precise issue being considered here. That decision was in the context of the requirements of ss 12A(2) and 80W of the Sentencing Act, but the sentence had to be wholly suspended.
138.The problem for applying the approach adopted by Mandranis v The Queen to the question of the length of the sentence, however, is that s 12A(5) of the Sentencing Act expressly prohibits the sentence (which, in practice of both this Court and that expressed in R v Zamagias, must first be determined) from being reduced in order to enable a Treatment Order to be made.
139.The approach set out in Mandranis v The Queen does not seem appropriate for consideration of a Treatment Order, given the particular statutory provisions.
Victim Impact Statements
140.Two Victim Impact Statements were tendered and read. A statement, taken from a victim during the hearing (as noted above at [11]), was also tendered and read by Crown counsel.
141.This is a very important part of the criminal justice system. The interests of the victims which, until relatively recently, were limited to being a witness in any trial, have been considerably enhanced in more recent years. For example, they are now not only made part of the process through the making, tendering and, if agreed, reading out of the Victim Impact Statement, but also, expressly under s 33(1)(f) of the Sentencing Act to be considered by the Court sentencing the offender. This has substantially enhanced the criminal justice system and, of course, been a boon for victims.
142.The owner of the WRX explained how the vehicle was her “pride and joy”, for which she had saved. She had only had it for some eight months when it was stolen.
143.After the car was driven away by Mr McColl she was hysterical, but did manage to control herself sufficiently to call the police. She was shaking with fear and recalling with obvious distress that she might not see it, or the precious things in it, again.
144.She continues to struggle with some of the effects of the incident. Her statement was made in October 2021. That shows that the effects are by no means transitory, but it is to be fervently hoped that they have ameliorated further since then.
145.The effects included fatigue, memory loss, fear of being alone in certain circumstances, waking up in fright, being angry and frustrated, being unwilling to have males near her and difficulty with groups of people, especially young people. She considers that the incident has “fundamentally changed how I live my life” though she bravely commits herself to ensuring that the event will not “define my life or the lives of my family”. She acknowledges that the “scars […] are healing”. It is to be hoped that this will continue apace. She does acknowledge that much of what she was before, a “happy, smiley, bouncy person, who is full of life”, she continues to be.
146.The driver of the other car in the collision also made a Victim Impact Statement. He explained that in the aftermath of the collision, he was “delirious with stress and anxiety”. The memories are, perhaps fortunately, somewhat “scattered”. He immediately experienced panic attacks with sleep disrupted by traumatic flashbacks.
147.His first experience thereafter behind the wheel was distressing and he always gets “a jolt of fear rush through [him]” when he travels through the intersection where the collision occurred.
148.He acknowledges, however, that the nightmares have stopped.
149.He was also forced to purchase a new car and, while he was insured, it did not meet all of the price of a replacement car which he needed to commute to work.
150.He accepts that he was lucky to walk out of the accident with effectively no injuries, though he later developed some back pain, diagnosed as traumatic whiplash, which has resolved. He has no long-lasting physical injuries or ailments now.
151.Finally, Mr Williams did confirm the ongoing effects he continues to suffer (as noted above at [27]) and dealing with them is clearly a significant challenge. In a very generous approach, which is by no means rare among victims and which is fortunate and desirable, he says that he holds no animosity and still views Mr McColl as a friend.
Current sentencing practice
152.As noted above, the relevant factors identified as required to be addressed in order to assess the seriousness of an offence are part of the current sentencing practice required to be considered by a court sentencing an offender, and which it must consider under s 33(1)(za) of the Sentencing Act.
153.The other part of this is that the actual sentences imposed show “the collective wisdom of sentencing judges” (R v Oliver (1980) 7 A Crim R 174 at 177), which will also ensure the important sentencing value of consistency is respected. There are, in essence, two ways in which this may be addressed. The Territory is fortunate to have the ACT Sentencing Database, which records many, though regretfully not all, the sentences imposed in this jurisdiction. This can be a useful source of information for the sentencing court. It has significant limitations, as has been set out in other decisions such as R v Mathews [2020] ACTSC 364 at [44]–[45] and R v Novakovic (a.k.a. Noland) (No 1) [2021] ACTSC 62 at [41]–[43].
154.Thus, such information is not to be rejected, but to be considered with a keen recognition of the limitations of it.
155.The other method of gaining an understanding of current sentencing practice is through consideration of comparable cases. These can, though, regrettably, not often enough, be accessed by links on the ACT Sentencing Database, or by submissions from the parties. In this case, the Court was fortunate that the Crown helpfully drew to the Court's attention a range of decisions.
156.Of course, even comparable cases have limits on their value. Few cases, not even those involving co-accused, are completely identical in all factors. Further, no statistic nor comparable case provides a limit or boundary on the sentence to be imposed.
157.In that context, the following was relevant in this case. In R v Lovelock [2014] ACTSC 229 at [13], it was noted that current sentencing practice is that in the ACT Supreme Court, a common sentence for the offence of aggravated robbery is three years imprisonment. In fact, the range of the sentences of imprisonment recorded in the ACT Sentencing Database is from nine months to 12 years, though 80% were between 21 months, and five years and six months.
158.Of course, as expected, the actual factors in each of the nature and circumstances of the offending, the personal circumstances of the offender, the situation of the victim and other relevant matters need to be considered.
159.The references in the Crown's written submissions were to four cases of aggravated robbery, namely R v Collins(No 2) [2018] ACTSC 294, R v Serena [2019] ACTSC 231, R v Shearer [2020] ACTSC 100 and Barrett v The Queen [2016] ACTCA 38.
160.In R v Collins (No 2), the offender used a knife in a similar way to that used by Mr McColl to steal a car. He was sentenced to three years and three months imprisonment. He was 31 years old with a difficult upbringing and a “significant criminal history”, including offences of violence. The loss of the vehicle caused the victim significant financial loss. His plea was a late plea. This was more serious than Mr McColl's matter.
161.In R v Serena, the offender sought actually to steal the victim's mobile phone, but the victim ran away and so she stole the motor vehicle instead. She was sentenced to 18 months imprisonment. She was 39 years old and had a supportive upbringing. She had no criminal record and expressed remorse. She had pleaded guilty in the ACT Magistrates Court. There are strong similarities with Mr McColl's case.
162.In R v Shearer, Mr Shearer pleaded guilty to four offences of attempted robbery. This is a different offence and makes comparison difficult. The Court has, however, read the decision.
163.Finally, in Barrett v The Queen, Mr Barrett appealed a sentence of two years and three months for an attempted aggravated robbery. He had sat in a vehicle that had been parked by the owner, leaving the keys in it. When the owner saw him, he challenged him and grabbed the keys back. Mr Barrett then produced a metal pole, with which he threatened the owner, but the vehicle started rolling forward and he ran away. Mr Barrett had a dysfunctional background and limited insight into his offending behaviour, poor compliance with community-based orders and had committed the offence while on conditional liberty. He had a lengthy criminal record. The case is not really comparable to that of Mr McColl.
164.So far as the offence of culpable driving causing grievous bodily harm is concerned, the ACT Sentencing Database showed two relevant tables. In one, there were three sentences, two of which were for 12 months imprisonment and one for 22 months and 15 days imprisonment, all of which were served by an Intensive Correction Order. In the other table, it showed sentences of between 18 months imprisonment and five years and four months imprisonment. It also showed one sentence of a fine, two sentences of a fully suspended sentence of 18 months imprisonment, one of three years imprisonment and three of partially suspended sentences of 19, 21 and 30 months imprisonment.
165.The Crown referred to six decisions said to be comparable: R v Higgins [2020] ACTSC 299, R v Fountain [2018] ACTSC 329, R v Ogle(No 2), R v Castles [2018] ACTSC 358, R v Woods [2017] ACTSC 17 and R v Richardson [2016] ACTSC 133. Although they have all been read, the Crown accepted that R v Fountain was the most nearly comparable.
166.In that case, Ms Fountain drove through a red traffic light travelling at about 90 kilometres an hour in a zone marked for 80 kilometres an hour, at about 5:15 pm, namely at peak hour on a Monday afternoon. Ms Fountain's motor vehicle collided with the victim's vehicle, causing the driver severe injuries, although no head injuries. Ms Fountain was 25 years old with no criminal record. The victim suffered mentally, very seriously. Ms Fountain expressed remorse, but her plea was a relatively late plea. A sentence of 18 months was immediately suspended. Ms Fountain has spent no time in custody. This is very similar, though the personal circumstances of Ms Fountain did not appear to include any childhood disadvantage or mental health issues and Ms Fountain was not intoxicated, which is a matter rendering an offence more serious: R v Castles at [15]–[17].
Consideration
167.The Court must now fashion these various matters into a sentence which is the instinctive synthesis of them. In order to do that, it is desirable that the sentence be guided by and meet the objectives which the legislature has set out in s 7 of the Sentencing Act.
168.The seriousness of the aggravated robbery and culpable driving causing grievous bodily harm offences requires a level of punishment. These severe breaches of the standards of conduct expected in a civilised community require this response. Mr McColl has, of course, already spent over 12 months in custody.
169.It is, of course, also helpful to set such standards by denouncing the conduct, as a stern sentence will do. This, of course, includes his criminal conduct and not only the two most dangerous and grave offences. It will, further, encourage others who might be inclined to act in the same way to reconsider such conduct and see the sentence as a deterrence.
170.The need for this sentence to re-affirm these standards in the community, and thus deter those who would breach them, is made more relevant when an offence is prevalent. As noted in Sladic v Proud [2013] ACTSC 232 at [102]–[105], prevalence is something that can be accepted by a Court from knowledge of the cases before it and those in the relevant hierarchy, as also explained in R v Ryan (1988) 33 A Crim R 288 at 293. As noted in R v Guy [2018] ACTSC 270 at [50], driving in a way that is dangerous, sometimes culpably, is prevalent and this reinforces the need for a sentence that recognises that.
171.It is relevant here to note that the roads are, of course, dangerous places and that motor vehicles are, effectively, weapons in the wrong hands, often lethal weapons. Thus, driving contrary to the road rules is conduct to be censured and not regarded lightly.
172.The sentence must also make Mr McColl accountable for his actions. He has, regrettably, begun to accumulate a serious criminal history which, if it can be staunched, will benefit the community, but also himself. Thus, especially for a young man with, hopefully, much of his life before him, if he can be rehabilitated, there will be much benefit.
173.Nevertheless, the sentence should also show to him that he cannot continue with such conduct and that he, too, must be deterred from its repetition.
174.This will, of course, all achieve the important object of the protection of the community when the standards are met, Mr McColl and others are deterred from such conduct and he is assisted to be a productive member of the community.
175.Despite this, it is also important to hold Mr McColl accountable for the offences for which he is, as he acknowledges, completely responsible.
176.It is very important also, that the sentence, not merely these sentencing remarks, must acknowledge the severe harm suffered by the victims of Mr McColl's crimes. Though the Court has evidence of the more grievous crimes, none of the others were victimless crimes and the losses or harms they have suffered must also be acknowledged.
177.It is also important to take into account Mr McColl's pleas of guilty. Mr McColl pleaded guilty in the ACT Magistrate's Court to all offences. Even those for which he was arrested were entered no later than the fourth mention, which was just two days over two months after his first appearance.
178.For the other offences, the pleas were at the second mention which, partly because of the circumstances, were entered three weeks after the first appearance and during which, though not on these charges, Mr McColl was in custody on the counts for which he had been arrested. No plea of not guilty had been entered and no prosecution Brief of Evidence had to be prepared. These were very early pleas with utilitarian value and justify a significant discount on the sentence. See Siganto v The Queen [1998] HCA 74; 194 CLR 656 at 663–4; [22]; s 35 of the Sentencing Act.
179.It is to be noted too, that Mr McColl started consuming alcohol at an early age, no doubt affected by the circumstances of his home life. This is relevant to the degree of influence it had on his offending. See Douglas v The Queen (1995) 56 FCR 465 at 470; R v Henry at 397–8; [273].
180.It is to be noted, further, that, as reported in the Suitability Assessments of ACT Corrective Services, Mr McColl has, since entering custody “made encouraging changes”, including that he “accessed and complied with mental health treatment”. He has reflected on his actions and shown some insight into the effects of his actions on those close to him. His plea of guilty is, at least, an acceptance of responsibility and perhaps some inkling of remorse. He has also, as reported in the updated Suitability Assessment of ACT Corrective Services, “showed a degree of victim empathy by acknowledging the negative impact of his actions were likely to have had upon his victim”, and, later, this was acknowledged to include “some of his victims”.
181.The sentence must also take into account the matters mentioned in these remarks. There are, however, a number of offences to which Mr McColl has pleaded guilty and these must be dealt with also in accordance with law.
182.As noted in R v Burge, the principles for dealing with multiple offences can be summarised as follows:
(1)Each offence must, as will be done as far as possible here, be accorded a sentence that is just and appropriate for it.
(2)In addition, the Court must carefully consider whether there are common elements between the offences or whether they are part of the same course of conduct to justify the sentences for each being wholly or partly concurrent. In this case, that must be considered in relation to the offences of aggravated robbery and dishonestly driving a motor vehicle without the owner's consent and the offences of culpable driving, causing grievous bodily harm and unlawful possession of stolen property.
(3)The length of the total sentence must be reviewed to ensure that the principle of totality is respected and that the total sentence is adequate to reflect the total criminality, but no more than that, and that the total sentence is not excessive and leaves open the realistic prospect of reform and hope for Mr McColl to achieve his goals when he is released into the community.
(4)The Court must also ensure that the sentence does not leave a perception that Mr McColl can commit multiple offences with impunity.
Sentence
[His Honour then spoke directly to the offender]
183.Mr McColl, please stand.
1. You are convicted of aggravated robbery and sentenced to 20 months imprisonment to commence on 26 May 2021 and end on 25 January 2023. Had you not pleaded guilty, you would have been sentenced to 28 months imprisonment.
2. You are convicted of dishonestly driving a motor vehicle without consent and sentenced to 10 months imprisonment to commence on 26 August 2022 and end on 25 June 2023. That is to be cumulative as to five months on the sentence for aggravated robbery. Had you not pleaded guilty, you would have been sentenced to 14 months imprisonment.
3. You are convicted of culpable driving causing grievous bodily harm and sentenced to 20 months imprisonment to commence on 26 March 2023 and end on 25 November 2024. That is to be cumulative as to 17 months on the sentence for dishonestly driving a motor vehicle without consent. Had you not pleaded guilty, you would have been sentenced to 28 months imprisonment. It be noted that there is an automatic disqualification for you from holding or obtaining a driver licence for six months from today, 2 June 2022.
4. You are convicted of obtaining property by deception and sentenced to six months imprisonment, to commence on 26 August 2024 and end on 25 February 2025. That is to be cumulative as to three months on the sentence for culpable driving causing grievous bodily harm. Had you not pleaded guilty, you would have been sentenced to eight months imprisonment.
5. You are convicted of minor theft and sentenced to four months imprisonment to commence on 26 December 2024 and end on 25 April 2025. That is to be cumulative as to two months on the sentence for obtaining property by deception. Had you not pleaded guilty, you would have been sentenced to six months imprisonment.
6. You are convicted of possessing stolen property and sentenced to one month imprisonment to commence on 26 March 2025 and end on 25 April 2025. That is to be wholly concurrent on the sentence for minor theft. Had you not pleaded guilty, you would have been sentenced to two months imprisonment.
184.You may be seated.
Drug and Alcohol Treatment Order application
185.Having decided on the sentence, it is necessary to address the request by Mr McColl that the sentence be served by a Treatment Order.
186.In order to do that, it is necessary to decide whether Mr McColl is eligible for a Treatment Order to be made and, if so, whether he is suitable for such a sentencing disposition.
187.The eligibility is determined by considering the eligibility criteria in ss 12A and 80S of the Sentencing Act. Those in s 80S are in addition to the matters in s 12A, essentially whether Mr McColl is suitable for the Treatment Order, thus it is convenient to deal with the criteria set out in s 12A first.
188.Mr McColl has pleaded guilty to the primary offence of aggravated robbery, which is an eligible offence. He has also pleaded guilty to five other offences, which are eligible offences. As noted, he has been sentenced to terms of imprisonment for these. The term of imprisonment for the primary offence is more than one and less than four years, namely 20 months, as is the total of the imprisonment for all the offences, namely three years and 11 months. These terms, individually and in totality, are within the eligibility for a Treatment Order, namely that the sentence for the primary offence be of at least one years imprisonment and the total sentence must not be more than four years imprisonment.
189.This sentence may mean that the earlier remarks in relation to pre-sentence custody (at [133]–[136]) are, in fact, obiter dicta.
190.The Suitability Assessments show that Mr McColl has a long history of alcohol abuse and it is accepted that he has a significant dependency on alcohol. This is sufficient to show that dependency on the balance of probabilities. The Crown expressed some reservations, but the balance of the evidence justifies the finding that this is so.
191.Mr McColl has also asserted, as is supported by the psychiatric report of Dr Barker, that his dependence was integrally related to his offending, either through seeking funds to support his dependency or being disinhibited and precipitated in the offending by it.
192.Mr McColl has lived in Canberra all his life and has accommodation here through his father, with whom he is now close. The Court is satisfied to the requisite degree that he will be resident in the Territory for the term of the sentence.
193.Mr McColl has also signed a form consenting to the making of a Treatment Order, thus signifying his consent, which signature has been dually witnessed to show that the obligations of the Order have been explained to him. It also asserts that he has sufficient information to make a balanced judgement as to whether to give that consent. He also confirms, as is supported by the Suitability Assessment of Alcohol and Drug Services, that he has had the opportunity to ask any questions about the Order and had those questions answered. He has appeared to understand the answers.
194.Accordingly, subject to suitability, which is, as well, an eligibility criterion, Mr McColl is eligible for a Treatment Order to be made.
195.The Suitability Assessments have been carefully, professionally, and very comprehensively prepared, addressing thoughtfully the question of whether Mr McColl is suitable to be subject to a Treatment Order.
196.Both recommend that he is suitable and neither counsel submitted to the contrary, though some reservations were expressed, so far as the length of the sentence was concerned. Such recommendations must be, and have been, carefully considered in order to come to a conclusion on this issue.
197.A Case Plan has also been prepared, which sets out a detailed and thorough regime of rehabilitation to address the various criminogenic risks that Mr McColl has. This shows that there is an appropriate management available for the administration of the Treatment Order.
198.There are no reasons set out in the Suitability Assessments, or in counsel's submissions, why the sentence should not be served by a Treatment Order. While the compliance by Mr McColl is unable to be assessed because he has been in custody since being arrested, it seems to the Court that it would be appropriate for a Treatment Order to be made.
199.There are no indications of unsuitability for a Treatment Order, as set out in table 46K of the Sentencing Act, that would require, or make it appropriate, that the Court decline to make a Treatment Order.
200.The fact that, while the sentence of imprisonment should be wholly suspended, the sentence imposed on Mr McColl commences well before today and so must be partially suspended, does not render the sentence one that makes Mr McColl ineligible for the sentence to be served by a Treatment Order, for the reasons set out in R v Crawford(No 1) at [91]–[111].
Drug and Alcohol Treatment Order
[His Honour again spoke directly to the offender]
201.Mr McColl, please stand.
7. A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 be made for you for two years from today, commencing on 2 June 2022 and ending on 1 June 2024, in respect of the primary offence of aggravated robbery of which you have been convicted, and for which you have been sentenced to 20 months imprisonment.
8. That Order is extended to the offences of dishonestly driving a motor vehicle without consent, culpable driving causing grievous bodily harm, obtaining property by deception, minor theft and possessing stolen property, of which you have been convicted, for which you have been sentenced and which are associated offences of the primary offence.
9. It be noted that the 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 are hereby incorporated into the Drug and Alcohol Treatment Order in the custodial part of the Order.
10. 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 June 2022, until 25 April 2025.
11. Under s 80ZA of the Crimes(Sentencing) Act2005 (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) Act 2005 (ACT) from the day after the end of the Drug and Alcohol Treatment Order, namely 2 June 2024, until the end of the total sentence, 25 April 2025, with a probation condition that you 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 you considers appropriate and obey all reasonable directions of the person supervising you, including as to urinalysis, counselling and treatment.
12. 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 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; and
c. You are to comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.
13. You are directed to appear in Court tomorrow, Friday 3 June 2022 at 11:30 am; and
14. You are directed to attend the Court Registry before you leave the Court precincts to sign a sealed copy of this Order 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.
202.Mr McColl, that is a lot of words. You have not been around the Courts that much, so some of it may have gone over your head. Much of it was about you, your history and what you did. What I have said is that these were very serious offences, but there were circumstances that justify a sentence that is not, perhaps, as severe as if you were in different circumstances.
203.Nevertheless, it is a severe sentence of three years and 11 months. You have, however, now served about one year of that and that is a significant penalty and sentence for that offending. Nevertheless, I do not require you now to serve any further time in custody, provided you comply with the Treatment Order regime.
204.You are a bit ambivalent about whether you have got the alcohol under control. You are now dependent on alcohol and you will always be dependent on alcohol. You will be able to manage it and, hopefully, it will not be a problem. You will, however, always be at risk. Not huge risk, as time goes on, and it will change, but you will be at risk.
205.What a Treatment Order is designed to do, is to help you and also to help manage your mental health challenges and to be able to be in the community without dependency and without crime. You have just started, but you have started with a bang. I mean, aggravated robbery has a maximum penalty of 25 years imprisonment. It is a very serious offence.
206.Culpable driving is not so serious an offence, except that you have hurt, seriously and forever, your mate. These are serious matters and you, as a young man, do not need that. You do not need to be in that milieu and you do not need to follow that path. You have an opportunity now to lead a better life and I am sure that your mate will appreciate, as some compensation, if you can make something of yourself.
207.If you can be productive in the community, you can have a family (if that is what you want), be a role model to your kids if, in the future, you have any, in a way that regrettably, your parents were not. It is, however, wonderful that you have been able to reconnect with your father and, hopefully, learn from him and move in the right direction.
208.This is an opportunity for you. The Court will help you and there are professional people who will assist you and guide you. At the end of the day, however, only you can do it and you have got to be committed to it.
209.Two things are important. One is, do not assume that this is a “get out of gaol free card”. The obligations are serious. You will be out of custody, but the obligations are serious and initially, especially, they are quite onerous. You need to comply with those, put your shoulder to the wheel, and work on it. If so, you will gain skills that will help you become that productive member of the community.
210.An important thing about that is not to run away from your obligations. Do not use this as an opportunity to commit further crimes, to do silly things, to ignore your obligations, not to turn up for meetings or to Court.
211.If you do that, the likelihood is, the Order will be cancelled and you will be back in prison to serve out the rest of the term, because the time in the community does not count. You have still got the balance of the three years and 11 months hanging over your head.
212.The second thing is honesty. If you are going to get on top of this, you need to be honest. You need to be honest with other people and tell it like it is. Do not worry about people judging you. They are there to assist you, but they need to know what is really going on. If you are in trouble, tell them. Do not try and sugar coat it, do not try and cover it up, tell it like it is, because that honesty will moderate any response.
213.Sometimes, if you have done something, for instance, if you commit another crime, then there is nothing I can impose but a sanction and probably imprisonment. Admitting to it, however, will moderate the term, or the seriousness, if you face up to it and be honest.
214.You must also be honest with yourself. In some ways that can be harder; you do things which you want to do, and you think "well, it’s not so bad", or “I’m not really doing something that I shouldn’t be doing”, and “there's a reason for it,” and you can explain it to yourself. Do not go down that track, do not approach it in that way, because if you fool yourself, you will get trapped.
215.For the first period of this Order, you will see me quite a lot. Every Friday you will come in and, hopefully, it will be very short because you will have done the right thing and things will be going well.
216.If not, then I must impose a sanction to you and those will be explained to you in due course. Sometimes we will have to change things, it may be that the two years that we have got for the Order is too long and you are doing so well that we can shorten it. There are ways in which we can deal with that.
217.It is also an opportunity for you to raise with me any issues that you might have about how things are going, or any difficulties you are having. I am a Judge and I have considerable powers. I am not omnipotent, I cannot do everything and one thing I cannot do relates to housing, but you are lucky, because your father has offered you a residence. It is amazing, however, how I can assist, or I can refer you to people who can assist.
218.If things are not going very well, you can speak to your case managers. You will see them, initially weekly, and you can raise it with them. They may say, “raise it with the Judge,” and then you can come and see me when you are in Court.
219.If it is really something that you do not want to say in public, because courts are public, then we can make arrangements. There will still be people in the Court, but not the general public. We can make arrangements for that so you can raise confidential matters if you need to do so.
220.You have had an excellent lawyer in Mr Rutzou, but he probably will not be appearing for you any further. Legal Aid do appear for everyone in the process but there is a dedicated legal lawyer, Ms Colleen Duffy, who will appear for you and you will get to know her. If there are problems of a legal nature, you can talk to her about them.
221.I am sure much of this has been explained to you. You need to understand that this is an opportunity for you. I am not minimising the seriousness of what you did, but you have been punished for that. If you genuinely want to rehabilitate, which will be better for the community and I hope will be some compensation and consolation for those victims, if you can be turned from a life of crime, then we will all be ahead.
222.It is your responsibility now, but you will have people supporting you, encouraging you, advising you and providing you with assistance.
223.I note that there is an automatic disqualification from you holding, or obtaining, a driver licence for six months from today. If you get behind a motor vehicle wheel, steering wheel, you will have committed a crime and that will put your Treatment Order at risk. Quite apart from whatever penalty that may be, and driving without a licence is a serious offence, you will put at risk your Treatment Order and be likely to go back to custody.
224.You may be seated.
I certify that the preceding two hundred and twenty-four [224] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge
Associate:
Date: 11 February 2025
Corrigendum: 11 February 2025
1.Redact the first sentence in [99] from after “aged 16,” to before “and was soon”.
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