R v Moore
[2021] ACTSC 333
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Moore |
Citation: | [2021] ACTSC 333 |
Hearing Dates: | 1 September, 29 October, 3 December 2021 |
DecisionDate: | 1 September 2021, 3 December 2021 |
Before: | Murrell CJ |
Decision: | Drug and alcohol treatment order imposed |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – aggravated burglary – burglary – theft – damage property – attempt to obtain property by deception – take motor vehicle without consent – recklessly inflict actual bodily harm – young Aboriginal offender – childhood experience of substance abuse and violence – intellectual disability – drug and alcohol treatment order |
Legislation Cited: | Crimes Act 1900 (ACT) s 23 Crimes (Sentencing) Act 2005 (ACT) s 33 Criminal Code 2002 (ACT) ss 44, 45A, 308, 310, 311, 312, 318, 326, 403 |
Cases Cited: | Hall v The Queen [2017] ACTCA 16 R v Elphick [2021] ACTSC 9 R v Henry (1999) 46 NSWLR 346 |
Parties: | The Queen (Crown) John Gordon Moore (Offender) |
Representation: | Counsel M Howe (Crown) J Cooper (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (Offender) | |
File Number: | SCC 108 of 2021 |
MURRELL CJ:
Introduction
The offender is to be sentenced for the following 12 offences:
(a)Aggravated robbery (Count 1), contrary to s 310(a) of the Criminal Code 2002 (Criminal Code).
The maximum penalty is a $400,000 fine, imprisonment for 25 years or both.
(b)Aggravated burglary (Counts 2 and 3), contrary to s 312(a) of the Criminal Code.
The maximum penalty is a $320,000 fine, imprisonment for 20 years or both.
(c)Burglary (Count 4), contrary to s 311(a) of the Criminal Code.
The maximum penalty is a $224,000 fine, imprisonment for 14 years or both.
(d)Theft (Counts 5 and 6), contrary to s 308 of the Criminal Code.
The maximum penalty is a $160,000 fine, imprisonment for 10 years or both.
(e)Damage property (Counts 7 and 8), contrary to s 403 of the Criminal Code
The maximum penalty is a $160,000 fine, imprisonment for 10 years or both.(f)Attempt to obtain property by deception (Count 9), contrary to s 326 and s 44 of the Criminal Code.
The maximum penalty is a $160,000 fine, imprisonment for 10 years or both.
(g)Take motor vehicle without consent (Counts 10 and 11), contrary to s 318(1) of the Criminal Code.
The maximum penalty is a $80,000 fine, imprisonment for five years or both.
(h)Recklessly inflict actual bodily harm (Count 12), contrary to s 23(1) of the Crimes Act1900 (ACT).
The maximum penalty is imprisonment for five years.
Some charges rely on s 45A of the Criminal Code (joint commission).
On 6 May 2021 in the Magistrates Court, the offender pleaded guilty to the offences on the seventh mention, after an initial plea of not guilty and after a brief of evidence had been prepared. The pleas were entered in the context that, following discussions, other charges were discontinued. Nevertheless, the pleas were entered at an early opportunity and have significant utilitarian value. The appropriate discount is 25 per cent.
The offender has been in custody since 30 September 2020.
One or two of the co-offenders were young persons. A third is unknown. No co-offender has been sentenced.
Facts
Incident 1: Offences on 13 July 2020 (Counts 2, 5, 7 and 12)
At about 4:00AM on 13 July 2020, the offender approached the front gate of a residence in Coombs. He was wearing a black hooded puffer jacket, black pants, and a dark coloured face covering, which was lowered periodically during the incident.
The offender was in the company of three male co-offenders. As they approached the residence, one co-offender picked up a red and black badminton racket and another picked up a long pole from beside the front gate. CCTV footage captured aspects of the incident that occurred outside.
A short time later, the offender and co-offenders exited the front terrace of the house and walked along the pathway. The offender then returned to the house holding a dark metal pry bar in his right hand. One co-offender followed the offender through the front gate holding the long pole. The other co-offenders also approached the front gate. One was holding a large pole in each hand.
The offender and the co-offenders entered the house by forcing a side window open with a tool, causing damage in the process (Count 2, part of Count 7).
The victim awoke, saw shadows passing his bedroom door, and heard people talking. A male shone a torch in the victim’s face, and he saw another male standing in his bedroom. The victim observed all four offenders in his house (Count 2).
The victim got out of bed and went to his bedroom door, where he was confronted by one of the offenders, who struck him in the chin with a clenched fist (commencement of Count 12). The victim hit back and kicked his assailant’s knee in self-defence. A struggle ensued between the victim and the intruders. One of the offenders struck the victim on the left side of his hip with a hard object. The victim discharged an incapacitating spray towards the intruders as he feared for his life.
One of the offenders said, “let’s get out of here, he’s just sprayed me, he’s crazy”. The intruders then left the house through the front door.
The victim ran to shut the front door. After some time, he opened the door and observed the offender standing close to his front gate. The victim walked outside holding the spray and approached the offender, who ran away. A co-offender then threw a dark object towards the victim, striking him on his right leg, before running away. The victim returned to his house.
The offender again approached the house and entered the front terrace holding the dark metal pry bar. The co-offenders stood along the footpath in the vicinity of the house, holding their weapons. Objects were thrown at the victim. The offender approached again and kicked on the front door, causing damage (part of Count 7). The victim continued to hold the front door shut and called out for his neighbour to contact the police.
The victim opened the front door and moved outside. A co-offender picked up a ceramic pot from beside a garden bed and threw it at the victim. The pot struck the victim on the right side of his head, causing him to fall on the ground and lose consciousness (conclusion of Count 12).
The victim regained consciousness a short time later and returned to the front door. One of the offenders said, “we’re going to jump on your head”.
The victim ran back to his bedroom, retrieved his mobile phone and attempted to call police as he approached the front door, but his attempt was unsuccessful.
The victim heard loud noises coming from the spare bedroom of his house and a prying noise coming from the window on that side of the house.
An offender observed the victim attempting to call police on his mobile phone and stated, “he’s got his phone, we’ve got to go”.
The victim ran out the front of his residence and attempted to leave. The offender stood in front of him, and they both fell to the ground. The victim stood and ran away.
A short time later, police arrived and observed the victim at the front of the apartment complex, looking dishevelled and upset. He had blood on his face.
The victim’s wallet was taken. It contained $2,000 and identification cards in his name. A black bag containing assorted clothing was also taken from the house (Count 5).
The offender was conveyed by ambulance to The Canberra Hospital. His injuries included a four centimetre laceration to the right temple, which required surgery, as well as bruising and abrasions to the abdomen. He sustained scarring to the head.
Objective seriousness of the offences the subject of Incident 1 (13 July 2020)
Count 2 (aggravated burglary):
In R v Elphick [2021] ACTSC 9 at [113], I referred to matters that inform the objective seriousness of burglary offences.
In this case, the aggravating feature was that the offender was in company. It is relevant that he was with three other people (not merely a second person). Further, during the incident, the offenders armed themselves. Consequently, from the victim’s perspective, there was an elevated level of intimidation. Force was used to gain entry to the home. The offenders were disguised. These factors suggest a degree of planning, albeit relatively rudimentary planning.
The burglary occurred at 4:00AM at a residence (a time when the resident was likely to be home and was, in fact, at home) and it involved a direct confrontation between the intruders and the resident. It was a gross and terrifying invasion of privacy. The confrontation was not momentary; after being ejected from the property, the offenders continued to engage with the victim in a threatening manner, attempting to re-enter his residence.
The CCTV footage suggests that the offenders spend about four minutes inside the residence and were outside for about six minutes.
The offender was very much involved in the offence. The Crown described him as the “ringleader”, noting that at least two co-offenders were young people. That characterisation may be unfair; although the offender was 18 years old at the time of the incident, he suffered from a moderate intellectual disability.
Count 5 (theft)
The theft was unremarkable, although the theft of a wallet and contents is always of concern when it involves identity documents.
Count 7 (damage property)
The damage to the door and window was unremarkable and integrally related to other offences. However, two items were damaged on separate occasions. The offence is of relatively low objective seriousness.
Count 12 (recklessly inflicting actual bodily harm)
The harm that was occasioned was relatively serious within the harm that constitutes actual bodily harm; a laceration to the head required surgery, there was a loss of consciousness and the victim sustained bruising and abrasions. The victim was left with some scarring. The injuries were sustained during a very frightening assault that continued over a short but not insignificant period and involved several blows (some involving weapons or makeshift weapons). It is not clear that the offender delivered any blow. One offender (it is not asserted that it was this offender) threatened to jump on the victim’s head. The incident caused the victim to fear for his life.
The offence is a relatively serious offence of its type, although it was not established that the offender himself delivered any of the blows.
Overall, this “home invasion” incident was very serious.
Incident 2: Offences on 20 September 2020 (Counts 4, 8 and 10)
On the afternoon of 19 September 2020, there was a burglary at a home in Weston. During this burglary, car keys for a red Holden Cruze vehicle were stolen.
At about 1:00AM on 20 September 2020, the occupants were asleep in their residence when they heard a loud bang in the garage. The male occupant ran to the front of the residence and saw the offender standing next to the garage side door.
The offender yelled “we’re stealing your car”, before entering the garage through the side door (Count 4). The vehicle was driven from the garage and out of the complex (Count 10). The roller door was ripped from the railings and forced upwards, causing extensive damage to the garage which cost $3,850 to repair (Count 8).
At about 7:19AM on 21 September 2020, police located the red Holden Cruze parked elsewhere in Weston. While the facts are silent, the victim impact statement says the car was damaged such that it had to be “written off”, with associated cost and inconvenience.
In a victim impact statement, the occupants described their anger at the invasion of their privacy. They have become hypervigilant in relation to security and remain anxious when events remind them of the incident. They incurred considerable expenses because of the offences.
Objective seriousness of the offences the subject of Incident 2 (20 September 2020)
Count 4 (burglary)
The offence occurred in the early hours, when the occupants were at home and asleep in their residence. It involved breaking into a garage rather than the main part of the residence, although the occupants became aware of the incident as it was occurring. The facts do not suggest that the offender was in company. The trespass was brief. This is an offence of lower objective seriousness.
Count 8 (damage property)
The damage to the roller door was considerable. The offence was committed to facilitate the taking of the vehicle. Nevertheless, this offence was relatively unremarkable.
Count 10 (take motor vehicle without consent)
The offence was brazen and there was an accompanying taunt to the owner.
Incident 3: Offences on 27 September 2020
At about 1:30AM on 27 September 2020, the offender, and three co-offenders attended a house in Duffy. The occupant, an 81-year-old woman who suffered from health problems, was asleep in her bedroom. She was living alone in her home of many years, having recently lost her husband. She was just starting to come to terms with the loss.
The two-storey house had an internal elevator from the carport to just outside the victim’s bedroom. The victim’s white Toyota Corolla was parked in the carport.
The offenders gained entry to the house through a ground floor side window. The offender walked through the ground floor of the house, shining a small torch (Count 3).
One of the co-offenders entered the victim’s bedroom and she was awoken by torchlight. She lay still, looking up at the co-offender and fearing for her safety. The co-offender stood over the victim and demanded that she tell him where her handbag and vehicle keys were located. The victim could not remember where she had left those items. The co-offender repeatedly demanded the items and that the victim disclose the pin code to her bank cards, saying that the offenders would leave if she gave them the code. The victim told the co-offenders that she suffered from Alzheimer’s disease. It is not clear that the offender was inside the bedroom when the demands were made, but he was, at least, present just outside the bedroom at a location where he would have overheard the conversation.
The offenders searched through the victim’s house, rifling through cupboards and drawers, and throwing clothing and belongings to the floor. They located the victim’s handbag, from which they stole a blue wallet and car key. The wallet contained bank cards and a driver licence in the victim’s name, as well as $300 in cash (Count 6).
The offenders left the house in the white Toyota Corolla, which was abandoned near the scene of a subsequent offence.
After the offenders departed, the victim waited in trepidation for about an hour because she was unsure whether the offenders were still in her house. In a victim impact statement, she spoke of her subsequent sleeping problems and concerns for safety, which have meant that she has become very anxious and felt obliged to move from her home.
At about 2:09AM on 27 September 2020, the offenders attended Curtin Shops where they tried to use a card that they had taken from the house in Duffy at a Westpac ATM. When the attempt was unsuccessful, the offender walked to an adjacent Bendigo Bank ATM and again attempted unsuccessfully to use the ATM (Count 9).
At about 2:16AM, the offenders left Curtin shops in the white Toyota Corolla.
At about 2:37AM on 27 September 2020, the offenders were travelling in the white Toyota Corolla in Chisholm. At the same time, the male victim was walking up the driveway of his home.
The offenders confronted the victim and demanded money. They were wearing face coverings, and some held torches, which they shone in the victim’s face. The offenders yelled at the victim and demanded his wallet and mobile telephone. The victim was pushed by the offenders and punched in the chest and head. He sustained a small laceration to his ear which bled slightly. Ultimately, the victim gave the offenders his wallet, which contained his driver license and bank cards, worth about $150. The offenders demanded the PIN code to the victim’s bank cards. The victim ran from the offenders and sought refuge in a neighbouring yard (Count 1).
The offenders returned to the white Toyota Corolla and departed.
At 2:45AM on 27 September 2020, the offenders arrived at another address in Chisholm. There was a white Ford Focus vehicle in a driveway. The owner was away. A co-offender entered the house and stole the car keys. The offenders drove away in the vehicle (Count 11).
On 6 October 2021, the vehicle was recovered from a location at Red Hill.
Objective seriousness of the Incident 3 offences
Count 3 (aggravated burglary)
This was a “home invasion”. It was a very serious offence.
The victim was vulnerable because she was 81 years old and relatively immobile. Although the offender would not have appreciated her particular vulnerability before he entered the premises, once inside he would have appreciated it. The offender was accompanied by three co-offenders, and the victim was made aware that there were several people present. The offence was protracted. In effect, the victim was confined to her bed while a co-offender stood over her and made demands with which she was unable to comply because she suffered from memory problems, causing the co-offender to become irate. It would have been a truly terrifying experience for the victim. There is no evidence that the offender was present in the victim’s bedroom and directly involved in the intimidation of the victim within the bedroom, but he was, at least, present just outside and would have overheard everything that occurred.
Count 6 (theft)
The theft was unremarkable although, as mentioned above, the theft of a wallet containing identity documents is always of concern. The concern would be greater in the case of a vulnerable person like this victim.
Count 9 (attempt to obtain property by deception)
The offender was directly involved in the attempts to withdraw money from an ATM. The attempts were unsophisticated and were never likely to succeed.
Count 1 (aggravated robbery)
In Hall v The Queen [2017] ACTCA 16 at [49]–[50], the Court stated that, while the guideline judgment in R v Henry (1999) 46 NSWLR 346 (Henry) was not binding in this jurisdiction, it was persuasive, at least insofar as it indicated matters that were relevant to an assessment of whether an offence was a typical offence of aggravated (armed) robbery. The circumstances in Henry were different but not substantially more serious than those in the present case.
The offence was unsophisticated, unplanned and yielded little reward. However, the confrontation would have been very frightening for the victim as it occurred in the early hours and involved several offenders who verbally and physically intimidated him. Fortunately, he was able to escape by running away, but not before he surrendered his wallet and contents.
Count 11 (take motor vehicle without consent)
The vehicle was taken from a driveway without the owner’s knowledge. It was recovered nine days later, and the facts do not suggest that it was damaged. The offence is of relatively low objective seriousness.
Subjective features
At the time of the offences, the offender was 18 or 19 years old.
The offender has a long-standing involvement with the NSW criminal justice system for offences of a similar type, some of which have resulted in orders for supervision.
He is a young Aboriginal man who was raised in the small, remote and underprivileged town of Dareton, NSW, in an extended Aboriginal family. He has a close connection to his Aboriginal heritage. He has extensive knowledge concerning Aboriginal customs and is attached to the country in which he was raised. His continuing connection is evidenced by the fact that, recently, when he was unable to attend important “sorry business” because he was incarcerated, he experienced significant shame on his own behalf and that of his family.
He is the oldest of six children. He denied childhood neglect or personal abuse but recalled that substance abuse and violence were rife in the community in which he was raised. As a child, he was frightened by witnessing violence between members of his extended family and other community members. He was conscious of the stigma associated with the fact that his father and male members of his extended family were in and out of custody. At the same time, he accepted that periodic incarceration was just a part of life. He remains in close contact with his mother and feels a close connection to his siblings.
When the offender was 13 years old, the family moved to Wagga Wagga as his mother had experienced a trauma (she had found the offender’s aunty dead, having been murdered by her partner in a domestic violence incident). Although the offender did not witness the traumatic incident, it plays on his mind.
The offender struggled at school and left after completing Year 11. At school, he received special support but was often in trouble. He associated with anti-social peers.
I have no doubt that the offender’s childhood experiences of substance abuse and violence will have a lifelong impact upon him, especially because (as discussed below) both as a child and since then his disability has hampered his capacity to process and move beyond that childhood disadvantage.
After leaving school, the offender obtained employment as a cleaner.
The offender is a moderately heavy user of alcohol. He commenced using cannabis at 16 years of age, progressing to methamphetamine at 17 years of age. Reportedly, at the time of the offences, he was using methamphetamine daily. While incarcerated at the Alexander Maconachie Centre, he has engaged in a drug and alcohol program. He would benefit from further intervention.
When the offender was about 17 years old, he moved from Wagga Wagga to Canberra to be with his pregnant partner’s family. He and his partner now have a three-year-old child. In Canberra, he obtained employment as a stonemason bricklayer, and he hopes that the employment will be open to him when he is released from custody. He remains in regular contact with his partner and child.
When he was six years old and again in 2015 (at about 14 years of age), the offender was diagnosed with an intellectual disability, associated with poor communication, comprehension, and language skills. He has difficulty completing conceptual tasks as well as complex practical tasks. Tasks that involve reasoning, planning, or abstract thinking (including scheduling, money management and health management) present difficulties.
Recently, the offender’s overall IQ was assessed to be 69 (extremely low range, second percentile). His non-verbal skills are significantly stronger than his verbal abilities. In diagnosing the offender as suffering from mild intellectual developmental disability, Dr Wearne stated at [25]:
His intellectual impairments are accompanied by deficits in his adaptive behaviour (i.e. how well he meets community standards of personal independence and social responsibility in comparison to others of similar age and cultural background…). These deficits in his adaptive behaviour functioning are evident throughout his developmental history…
At [26], Dr Wearne concluded:
Mr Moore’s offending (past and present) are primarily driven by his limited cognitive skills, his poorly controlled substance use and his involvement with antisocial and unscrupulous peers. His intellectual disability (or rather the intellectual and cognitive impairments associated with his intellectual functioning) undermines his ability to engage in effective information processing, reasoning, and judgement…
At [28], Dr Wearne said:
He is presently at a crossroad in his life and whether he follows a prosocial or antisocial pathway will depend on whether he is prepared to take stock of his life and work hard to build a future for himself. The intervention and management he receives now will be critically important in shaping his social trajectory into the future.
The offender appears to be taking stock of his life. In a letter to the Court, he expressed shame at his conduct. He realises that he must change his behaviour. He finds the prison environment to be difficult; every day is a struggle for him. He is strongly motivated to live a drug-free lifestyle and support his partner and child. According to his sister-in-law, the offender is particularly gifted in his ability to relate to children.
Apart from the prospect of employment and family connection and support, the offender’s prospects of rehabilitation are aided by his connection to his Aboriginal heritage.
Mr Moore’s mother, sister-in-law and grandmother provided documents to the Court. His grandmother confirmed that the offender had been raised on a “mission” where he was exposed to domestic violence, drugs and crime. She confirmed that her grandson was strongly motivated to rehabilitate and deeply regretted the offences.
It is unlikely that there will ever be a better opportunity than now for the offender to access resources that will enable him to live the positive lifestyle that he desires.
Other sentencing considerations
The Court must have regard to the matters in s 33 of the Crimes (Sentencing) Act 2005 (ACT), insofar as they are known and relevant. Relevant matters are referred to elsewhere in these reasons.
Combined with his young age, the offender’s intellectual disability is very important to an assessment of his moral culpability. At the time of the offences, he lacked the developmental maturity of an adult, even an adult of 18 or 19 years of age. I do not infer that he was a ringleader vis-à-vis the co-offenders; it is at least as likely that he was associating with them because they were of a similar maturity to himself.
Although he is to be sentenced under the adult sentencing regime, the offender’s youth, lack of intellectual development and the fact that he is “at a crossroad” mean that, in this sentencing exercise, rehabilitation is a dominant sentencing purpose. Other sentencing purposes include general and personal deterrence, accountability, denunciation, and recognition of harm to the victims (particularly the victims of the aggravated burglary and aggravated robbery offences).
The events of 27 September 2020 were part of the same course of conduct but involved different locations and different victims. The offences of aggravated burglary and aggravated robbery were serious and there should be significant accumulation as between the sentences imposed for those offences.
Sentence Hearing on 1 September 2021
If I was not contemplating the imposition of a drug treatment order, the sentences that I would impose are:
Incident 1
(a)Count 2: 27 months’ imprisonment, less approximately 25 per cent, is 20 months’ imprisonment.
(b)Count 5: Six months’ imprisonment reduced to four months’ imprisonment, completely concurrent with Count 2.
(c)Count 12: 16 months’ imprisonment, less 25 per cent, is 12 months’ imprisonment.
(d)Count 7: one month’s imprisonment, completely concurrent with Count 2.
The total sentence for this incident would be two years and three months’ imprisonment.
Incident 2
(e)Count 4: eight months’ imprisonment, less 25 per cent, is six months’ imprisonment.
(f)Count 8: six months’ imprisonment reduced to four months’ imprisonment, completely concurrent with Count 4.
(g)Count 10: 10 months’ imprisonment, less about 25 per cent, is seven months’ imprisonment.
The total sentence for this incident would be eight months’ imprisonment.
Incident 3
(h)Count 3: 32 months’ imprisonment, less approximately 25 per cent, is 24 months’ imprisonment.
(i)Count 6: Six months’ imprisonment reduced to four months’ imprisonment, completely concurrent with Count 3.
(j)Count 9: One month’s imprisonment, completely concurrent with Count 3.
(k)Count 11: Seven months’ imprisonment, less approximately 25 per cent, is five months’ imprisonment.
(l)Count 1: 30 months’ imprisonment, less approximately 25 per cent, is 22 months’ imprisonment.
The total sentence for this incident would be three years and three months’ imprisonment.
The total sentence for all offences would be four years and three months’ imprisonment, with a nonparole period of two years and one month’s imprisonment. The offender’s youth, developmental difficulty, and the fact that he has not previously been incarcerated mean that a very short nonparole period would be appropriate.
The earliest date that an eligibility assessment can be undertaken is 17 September 2021. If the eligibility assessment was undertaken on that day and the offender was found to be eligible, a suitability assessment could be completed by 29 October 2021. By that stage, the offender will have spent one year and 29 days in custody.
It is convenient that I sentence him today for the offences that are part of Incident 2, and some of the less serious offences that are part of the other incidents, although this will disturb the logic of the sentencing structure proposed above.
Consequently, the offender is convicted and sentenced as stated for the following offences:
(a)Count 4: Six months’ imprisonment, from 30 September 2020 to 29 March 2021.
(b)Count 8: Four months’ imprisonment, from 30 September 2020 to 29 January 2021.
(c)Count 10: Seven months’ imprisonment, from 30 October 2020 to 29 May 2021.
(d)Count 12: 12 months’ imprisonment, from 29 October 2020 to 28 October 2021.
(e)Count 5: Four months’ imprisonment, from 29 October 2020 to 28 February 2021.
(f)Count 7: One month’s imprisonment, from 29 October 2020 to 28 November 2020.
(g)Count 6: Four months’ imprisonment, from 30 April 2021 to 29 August 2021.
(h)Count 9: One month’s imprisonment, from 30 April 2021 to 29 May 2021.
(i)Count 11: Five months’ imprisonment, from 29 May 2021 to 28 October 2021.
I decline to fix a nonparole period for these offences because to do so would undermine the intent of the sentencing exercise.
Except for the three most serious offences (Counts 1, 2, and 3), the offender will have served his sentences when, as is hoped, he comes before the Court on 29 October 2021 with a favourable suitability assessment. If so, I will impose the remaining three sentences and accumulate them to achieve a total sentence of three years and two months’ imprisonment, commencing on 29 October 2021. If he is not assessed as suitable for a drug and alcohol treatment order, then I will impose a nonparole period as indicated above.
Sentence Hearing on 29 October 2021
The offender was assessed as unsuitable for a drug and alcohol treatment order. The basis for this opinion was that the offender has been assessed as having an intellectual disability likely to prevent compliance with the order.
Counsel for the offender tendered material concerning the potential for support through the National Disability Insurance Scheme (NDIS).
Whether a drug and alcohol treatment order is appropriate hinges largely on the level of support that can be provided to the offender through the NDIS. Subject to adequate support being provided, I would consider it appropriate to make an order.
Further clarification about the exact level of support available will take six weeks to produce. To enable this to occur, I will adjourn the matter to Friday, 3 December 2021.
Sentence Hearing on 3 December 2021
The offender’s NDIS provider has indicated that they are able to assist the offender to attend to the commitments associated with a drug and alcohol treatment order. I am satisfied that these services will sufficiently support the offender’s compliance with the order.
I convict the offender and impose the following sentences:
(a)Count 1: 22 months’ imprisonment, from 3 December 2021 to 2 October 2023.
(b)Count 2: 20 months’ imprisonment, from 3 June 2022 to 2 February 2024.
(c)Count 3: 24 months’ imprisonment, from 25 December 2022 to 24 December 2024.
I note that these sentences have been accumulated to a total sentence of three years and three weeks from today, noting offender has been in custody, relevantly, from 29 October 2021.
I am satisfied of the matters set out in s 12A(2)(a) of the Sentencing Act and, having taken into account the matters set out in 12A(2)(b), I consider that it is appropriate to make a drug and alcohol treatment order.
I note that the offender has given informed consent as required by s 12A(2)(c) of the Sentencing Act.
The primary offence in relation to which the order is made is Count 1 and the order is extended to Counts 2 and 3 as associated offences.
Pursuant to s 12A of the Sentencing Act, I make a drug and alcohol treatment order, fully suspending the sentences on condition that the offender agrees to complete a treatment program.
In addition to the core conditions, the offender is to comply with such treatment program conditions as are set by the Drug and Alcohol Sentencing List Judge from time to time.
The treatment and supervision part of the order is for a period of 18 months from today.
The offender is directed to report to the Drug and Alcohol Sentencing List judge at 2:30PM today, Friday 3 December 2021.
| I certify that the preceding one hundred and eight [108] numbered paragraphs are a true copy of the Reasons for Sentence her Honour Chief Justice Murrell. Associate: Date: |
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