R v McMahon
[2019] ACTSC 361
•1 March 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v McMahon |
Citation: | [2019] ACTSC 361 |
Hearing Date: | 4 February 2019 |
DecisionDate: | 1 March 2019 |
Before: | Burns J |
Decision: | See [13]-[26] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – theft – breach of Good Behaviour Order – resentence |
Legislation Cited: | Criminal Code 2002 (ACT) s 308 |
Parties: | The Queen (Crown) Jason Andrew McMahon (Offender) |
Representation: | Counsel V Conliffe (Crown) S Platis (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 70 of 2008; SCC 317 of 2018 |
BURNS J:
Jason McMahon, you appear before me today for sentence with regard to one charge of theft contrary to s 308 of the Criminal Code 2002 (ACT) which carries a maximum penalty of 10 years' imprisonment. The charge is a rolled-up charge encompassing four separate thefts occurring between 22 July 2018 and 3 August 2018. On each occasion a bottle of alcohol was stolen from a supermarket.
The value of the property taken on each occasion was approximately $10. A conviction for this offence places you in breach of Good Behaviour Orders imposed as part of suspended sentences of imprisonment imposed by Refshauge J in this Court on 9 October 2017.
In addition, you have admitted that you failed to comply with the probation conditions imposed by his Honour at that time. On 9 October 2017, you were sentenced to terms of imprisonment totalling four years three months, commencing 23 March 2016 and expiring 22 June 2020. It was ordered that you be released on 22 December 2017 on a Good Behaviour Order for a period of three years from that date.
A number of the sentences imposed expired in the period between 23 March 2016 and 22 December 2017 so that they could not be subject to the Good Behaviour Orders imposed by Refshauge J. I will resentence you with regard to those matters which were subject to the Good Behaviour Orders and I will impose a further term of imprisonment with regard to the present offence of theft.
I see no point in proceeding by way of partially suspended sentences and I will instead simply impose a non-parole period.
Subjective Features
I take into account the contents of the Pre‑Sentence Report dated 29 September 2017 and the CADAS Report dated 28 September 2017. You are now 42 years old. You had a troubled childhood with a number of traumatic experiences. Your father used to drink heavily and was physically violent towards you as a child and a teenager.
At age 13 years old, you ran away from home and lived with your grandmother. She died when you were 21 years old. You reported that all of your grandparents suffered from alcoholism and that your mother had drug issues for some 12 years. You also stated that your uncle had initiated you into intravenous heroin use when you were aged 16 years.
At the time of preparation of the CADAS Report, you were being treated for anxiety and depression. You reported a history of self-harming behaviour when you were drinking heavily. You have a long history of alcohol and other drug abuse. You commenced using alcohol when you were 13 years old, with that becoming problematic from age 16 years. At the time of preparation of the CADAS Report you were consuming up to 30 standard drinks at a time twice a week.
You reported commencing use of cannabis at age 15 years, but ceased using that substance when you were approximately 21 years old because it caused you anxiety. You commenced use of amphetamines at age 15 or 16 years old and you reported use of cocaine occasionally when you were 21 years old. You also reported that you commenced heroin use at age 15 or 16 years old but by the time of preparation of the CADAS Report your opioid dependence was being managed with methadone maintenance.
At that time your most problematic substance continued to be alcohol with occasional benzodiazepine abuse. The CADAS Report noted that you had attempted both residential rehabilitation and community-based rehabilitation for drug and alcohol dependency on a number of occasions but without lasting success. You suffer from chronic Hepatitis B and you have cirrhosis of the liver.
There appears to be no suggestion that these conditions cannot be adequately addressed or treated in custody. I take into account the letters from your mother and yourself, particularly concerning the stressors that you have faced in prison and your hopes to rebuild your life when you are released. You no doubt continue to suffer the effects of the trauma and abuse to which you were exposed in childhood.
You have a very substantial criminal history which disentitles you to any leniency with regard to sentencing for the offence of theft or, indeed, in sentencing you for the offences for which you were before Refshauge J. I take into account the sentencing remarks by Refshauge J with regard to those offences. Your prospects for rehabilitation at this time must be considered poor because of your continuing substance abuse and your unwillingness or inability to address criminogenic factors in the community. I am satisfied that no sentences other than immediate terms of imprisonment are appropriate with respect to these matters.
Sentence
I will record a conviction on the charge of theft, and this places you in breach of the Good Behaviour Orders imposed by Refshauge J and I will resentence you with regard to those offences using the offence numbers contained on the Magistrates Court files.
With respect to charge 1999/3739 a charge of failing to appear, I cancel the Good Behaviour Order and you are sentenced to two months' imprisonment, commencing on 3 August 2018 and expiring on 2 October 2018.
On charge 1997/5335, a charge of possession of stolen property, I cancel the Good Behaviour Order and you are sentenced to two months' imprisonment, commencing 3 August 2018 and expiring on 2 October 2018.
On charge 2008/355, a charge of assault, I cancel the Good Behaviour Order and you are sentenced to three months' imprisonment, commencing 3 October 2018 and expiring 2 January 2019.
On charge 2008/354, a charge of damaging property, I cancel the Good Behaviour Order and you are sentenced to six months' imprisonment, commencing 3 October 2018 and expiring on 2 April 2019.
On charge 1997/5331, a charge of burglary, I cancel the Good Behaviour Order and you are sentenced to three months' imprisonment, commencing 3 April 2019 and expiring 2 July 2019.
On charge 1997/5332, a charge of damaging property, I cancel the Good Behaviour Order and you are sentenced to five months' imprisonment, commencing on 3 April 2019 and expiring on 2 September 2019.
With regard to charge 1997/4983 a charge of burglary, I cancel the Good Behaviour Order and you are sentenced to nine months' imprisonment, commencing 3 April 2019 and expiring 2 January 2020.
On charge 1997/4987, a charge of damaging property, I cancel the Good Behaviour Order and you are sentenced to six months' imprisonment, commencing 3 April 2019 and expiring 2 October 2019.
On charge 4985/1997, a charge of burglary, I cancel the Good Behaviour Order and you are sentenced to 17 months' imprisonment, commencing on 3 April 2019 and expiring on 2 September 2020.
On charge 1997/4986, a charge of theft, I cancel the Good Behaviour Order and you are sentenced to 15 months' imprisonment, commencing on 3 April 2019 and expiring on 2 July 2020.
With regard to the present offence of theft (CC18/9887) I record a conviction and you are sentenced to three months' imprisonment, commencing on 3 September 2020 and expiring on 2 December 2020.
The aggregate term of imprisonment that I have imposed is, therefore, one of two years four months commencing on 3 August 2018 and expiring on 2 December 2020.
Bearing in mind the period of full-time imprisonment you have already served with regard to these sentences imposed by Refshauge J, I will set a non-parole period of 14 months, commencing on 3 August 2018 and expiring on 2 October 2019.
| I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |
0
1