R v McIntosh
[2022] ACTSC 185
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v McIntosh |
Citation: | [2022] ACTSC 185 |
Hearing Date: | 21 July 2022 |
DecisionDate: | 21 July 2022 |
Before: | Mossop J |
Decision: | See [29] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – breach of good behaviour order – further offence – possessing offensive weapon with intent – substantial period in custody prior to suspension of sentence and breach – period of community service completed – good behaviour order cancelled – resentenced to period of imprisonment to be served by way of intensive correction order |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), s 110 Crimes (Sentencing) Act 2005 (ACT), s 80(1) Crimes Act 1900 (ACT), s 381(1) |
Cases Cited: | Guy v Anderson [2013] ACTSC 5 R v Beniamini(No 2) [2017] ACTSC 32 The Queen v PM (No 2) [2015] ACTSC 358 |
Parties: | The Queen ( Crown) Brett McIntosh ( Offender) |
Representation: | Counsel L Etheredge ( Crown) S Robinson ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Tim Sharman Solicitors ( Offender) | |
File Number: | SCC 6 of 2020 |
MOSSOP J:
Introduction
On 6 August 2020 the offender was sentenced by Robinson AJ to 19 months’ imprisonment for the offence of causing grievous bodily harm (SCCAN2020/67) and a further two months’ imprisonment for the offence of common assault (SCCAN2020/68) (R v McIntosh [2020] ACTSC 208). The sentence of imprisonment was partially suspended upon the offender entering into a good behaviour order (GBO) for a period of 24 months from 6 August 2020. At the date of sentence the offender had served five and a half months in custody.
On 23 December 2021 the offender was arrested and charged with possessing an offensive weapon with intent, contrary to s 381(1) of the Crimes Act 1900 (ACT) (CC2021/12080).
On 17 March 2022 Magistrate Theakston convicted the offender of that charge and sentenced him to two months’ imprisonment to commence on 17 March 2022 and end on 16 May 2022. As a result of the conviction, the offender was in breach of the suspended sentence and GBO made by Robinson AJ on 6 August 2020. Magistrate Theakston committed the offender to this court to deal with the breach of the suspended sentence and GBO.
Facts
The facts relevant to the sentence imposed by Robinson AJ are set out in his Honour’s reasons: R v McIntosh at [7]-[12]. In short, on 11 July 2019 the offender accosted the victim when the victim came to the offender’s mother’s house. The offender punched him in the face three or four times, then in the company of his mother, kicked Mr Smith while he was on the ground, then chased him, threw him on the ground and kicked him in the face causing his jaw to break. He subsequently slapped another man across the face but this sentence was fully served and hence is not the subject of breach proceedings.
The facts relevant to the breach of the offender’s GBO are agreed and are, in summary, as follows.
At approximately 12:48am on 23 December 2021 police received a report that several young persons were arguing and trying to fight at a residence in Conder, Australian Capital Territory (ACT).
At approximately 12:53am police attended the residence and immediately heard several persons yelling from inside the residence. However, they were unable to make out what was being said.
At this time police observed a male run towards the front door of the residence while looking back behind him. The male appeared to be agitated and panicked as he approached the front door.
Police stepped back to allow the man to safely exit the residence. A minute later the offender approached the man but stopped on the inside of the closed screen door. He was extremely aggressive and holding up a large kitchen knife in his right hand, having an argument with the man who had just exited the building. The offender then raised the kitchen knife and shoved the blade through the screen door in the direction of the man’s chest area and a second time in the direction of the man’s face. Police immediately directed the offender to drop the knife. The offender lowered the knife to his waist and retreated inside the residence.
Police observed the man outside the house to have a minor laceration to his hand with fresh blood covering most of the hand and fingers. Police formed the opinion that this injury occurred while the offender was thrusting the knife through the screen door.
A minute later the offender exited the residence, walked towards police and was arrested short time later. He was unsteady on his feet and incoherent in his speech, smelling of an intoxicating substance. Police formed the opinion that the offender was under the influence of an intoxicating substance. It appears to be common ground that he was intoxicated by alcohol.
The agreed facts and the balance of the evidence do not disclose why the men were arguing or why the offender took the action that he did.
Subjective circumstances
The offender’s subjective circumstances are outlined in a pre-sentence report dated 20 June 2022 and a bundle of references tendered by the offender.
The offender was born in Canberra. He was one of four children and had a difficult childhood which included domestic violence perpetrated by his father and stepfather and alcohol abuse by his mother. His parents separated when he was approximately three years old. He lost contact with his father until approximately 10-15 years later, when he engaged in sporadic contact with him. The offender’s mother entered a relationship with the offender’s stepfather when he was 10 years old. The offender’s stepfather was reportedly violent towards the offender, his mother and his siblings. It was common ground that the dysfunctional upbringing was relevant in the Bugmy sense. Counsel for the offender submitted and I accept that the circumstances of his upbringing were specifically relevant to the circumstances of the original offending.
The offender currently lives with his mother in her ACT Housing property.
The offender only completed Year 7 at school. Since then he has worked in multiple positions within the construction industry, his longest period of continuous employment being approximately six years. He reported that he was the recipient of Job Seeker Centrelink payments during the ACT Covid-19 lockdown in late 2021 and received his last payment on 20 January 2022, upon recommencing full-time employment in the roofing industry before his incarceration. The evidence is that he is sought after as a roofer and will have ongoing work in the future.
The offender reported problematic alcohol consumption beginning after his release from custody in April 2020. At this time, he reported to the author of the pre-sentence report drinking approximately 12 standard cans of beer daily until his incarceration in March 2022. Since his release from custody, the offender reported he has abstained from alcohol consumption. He recognises the difficulty that alcohol causes for him, saying “I’m a good person and I’m not an angry person. Just an idiot when I was drinking”.
He began using cannabis at approximately 13 years of age and used it consistently until 2021. At the peak of this addiction, he reported using 3 g of cannabis daily. The offender reported historical experimental use of methylenedioxymethamphetamine (MDMA), cocaine and ecstasy. He also reported that he consumed MDMA for a short period of time after his release from custody in April 2020. The offender has not undertaken any alcohol or other drug treatment, although he appears to have commenced engagement with Directions Health Services recently. The offender advised the author of the pre‑sentence report that he has abstained from all illicit substances.
The offender agreed with the statement of facts and acknowledged the unlawfulness of his actions. He was able to identify that rumours and alcohol consumption contributed to the offending. While the offender claimed to take responsibility for his offending, he showed to the author of the pre-sentence report no insight into victim impact when questioned on how he believed the victim felt.
The author of the pre-sentence report assessed the offender as being at medium/high risk of general reoffending. This assessed risk is primarily due to the offender’s history of problematic substance use, unemployment and limited engagement with prosocial peers and activities. The offender is assessed as being suitable for a GBO with a medium-high level of intervention. The offender is also suitable for a community service work condition and an intensive correction order.
It is notable that the assessed need for intervention has been raised since the earlier pre-sentence report before Robinson AJ and that following his release from custody in April 2020, the offender only received minimal supervision for a relatively short period.
Criminal history
Apart from the matters for which Robinson AJ sentenced the offender and the breach offence, the offender has no relevant criminal history.
Time in custody
In relation to the present breach charges, the offender has spent five days in custody that did not form part of the sentence for the breach offence. I have taken this additional period of custody into account.
Consideration
Pursuant to s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) it is necessary to either impose the suspended sentence or resentence the offender for the offence. There is no presumption in favour of one or other of these options. In determining what course to adopt the court must have regard to the fact that any perceived failure to act upon breaches of good behaviour orders associated with suspended sentences will render such sentences less effective as a means of achieving the purposes of sentencing.
In determining the appropriate course, it is relevant take into account the following matters:
(a) The proportion of the GBO served (see R v Beniamini(No 2) [2017] ACTSC 32 (Beniamini) at [52]): the offending occurred 16 months and 18 days into a 24‑month GBO. The offender had completed the 50 hours of community service required under his GBO.
(b) Any rehabilitation attained prior to the breach conduct (Beniamini at [52]): save for the absence of offending up until the breach offence there is no evidence of any rehabilitation in the period from Robinson AJ’s sentence in August 2020 until his breach offence in December 2021.
(c) The offender’s prospects of rehabilitation (Beniamini at [52]): the offender’s prospects of rehabilitation must be seen as more guarded than at the time of the sentence imposed by Robinson AJ. At that stage the offender had no relevant previous convictions and impressed his Honour as “promising” because the offender was “relatively young and has a realistic insight into his own behaviour”: R v McIntosh at [29]. The further offending and his abuse of alcohol means that it is not possible to have such confidence. The Crown submitted that the offender’s position would have been more favourable had he undertaken some formal rehabilitation program. I accept that submission as far as it goes. The evidence is that he now has some involvement with the Smart Recovery program run by Directions, but that recent involvement does not of itself demonstrate strong prospects of rehabilitation.
(d) The nature of the offence which breached the GBO including whether it is similar to the earlier offending conduct (Beniamini at [52]): the fresh offence was of a violent nature and involved significant aggression on the offender’s part. In those respects, it is similar to the earlier offending.
(e) The relative seriousness of the offence causing the breach and whether imposing the sentence would be disproportionate to the gravity of the breach (Guy v Anderson [2013] ACTSC 5 at [88]): the breach offending is serious offending and there would be no inappropriate disproportion if the balance of the sentence for the earlier offence was imposed.
(f) The facts associated with the earlier offending (Beniamini at [53]): these have been outlined above. It is obviously serious violent offending.
(g) Whether the breach demonstrates an intention to disregard the obligation to be of good behaviour or abandon any intention to be of good behaviour (The Queen v PM (No 2) [2015] ACTSC 358 (PM) at [22]): the precise motivation for the breach offending is not made clear by the evidence. It does not demonstrate an intention to disregard the obligation to be of good behaviour, although it obviously must at least reflect an incapacity to do so in that instance.
(h) Whether the offender had received any warnings in relation to breaches: this is not a relevant matter in the present circumstances although it may well be in other cases, particularly those relating to a failure to comply with other good behaviour obligations.
(i) The offender’s level of understanding of his obligations under the terms of the order and the consequences of a breach (PM at [20]-[22]): there is nothing in this case to suggest any lack of awareness and the obligation not to threaten people with knives must have been obvious.
(j) The nature of judicial and community resources previously devoted to the offender (R v Bennett [2017] ACTSC 104 at [11]): this is not a case where significant resources have been devoted to the offender in order to keep him from further offending. It is therefore not a case in which this consideration favours the imposition of the sentence. Indeed, the absence of resources devoted during the period of the GBO is a matter favouring a resentence which would provide such an opportunity.
Counsel for the Crown submitted that the suspended sentence should be imposed. Counsel for the offender submitted that it was appropriate that the offender be resentenced and that doing so would not undermine the integrity of the institution of suspended sentences. He submitted that although the further offending appears to have been fuelled by alcohol “the pathway to sobriety is rarely linear”.
In my view, the matter can be appropriately dealt with in a way that does not involve imposing the balance of the suspended sentence. In reaching that conclusion I have had regard to the various factors referred to above. It is significant that the offender has already spent a substantial period of time in custody prior to the suspension of the sentence and has completed the period of community service required under the GBO. The requirements of both specific and general deterrence require, however, that there be some additional consequences for the offender arising out of the breach which go beyond the sentence imposed for the breach offence. The history of alcohol abuse and its apparent role in what is otherwise an unexplained violent act warrants some greater intervention to achieve rehabilitation. The offender’s mental health is also a matter which ought to be addressed if there are specific actions which might assist.
The matter can be appropriately dealt with by resentencing the offender to a period of imprisonment that may be served by intensive correction with an additional period of community service. Dealing with the matter by way of an intensive correction order means that the sentence imposed in effect reflects the balance of the obligations that need to be completed, rather than the whole of the sentence. In the absence of dealing with the matter by way of intensive correction, I would have reimposed but backdated the previously served periods of imprisonment, but the prohibition on combination sentences in relation to intensive correction orders (Crimes (Sentencing) Act (2005) (ACT), s 80(1)) means that in this case it is appropriate simply to impose a sentence which requires only the balance of the sentence to be served in light of the substantial period of full-time custody and good behaviour prior to the breach offence.
Orders
The order of the Court is:
1. On the charge of causing grievous bodily harm (SCCAN2020/67) the good behaviour order is cancelled pursuant to s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) and the offender is resentenced to imprisonment for a period of ten months commencing on 21 July 2022 and ending on 20 May 2023 which is to be served by way of intensive correction in the community including the core conditions and subject to the additional condition that he perform 50 hours of community service.
| I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 17 August 2022 |