R v Norton

[2019] ACTSC 111

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Norton

Citation:

[2019] ACTSC 111

Hearing Date:

3 May 2019

DecisionDate:

3 May 2019

Before:

Elkaim J

Decision:

See [16]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – drive motor vehicle without consent – plea of guilty

Legislation: 

Crimes (Sentencing) Act 2002 (ACT) ss 6, 7, 10, 33

Criminal Code 2002 (ACT) s 318

Road Transport (Driver Licensing) Act 1999 (ACT) s 31(1)

Parties:

The Queen (Crown)

Zachery Norton (Offender)

Representation:

Counsel

Mr M Fernandez (Crown)

Ms J Campbell (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Offender)

File Number:

SCC 195 of 2018; SCC 196 of 2018

ELKAIM J:

1. On 15 March 2019, the offender was arraigned on an indictment dated 11 September 2018. He entered a plea of guilty in relation to Count 2 in full satisfaction of the indictment.

1. Count 2 states that the offender dishonestly drove a motor vehicle belonging to someone else, and the vehicle was dishonestly taken without consent. The offence is contrary to s 318 of the Criminal Code 2002 (ACT). The maximum penalty is 5 years’ imprisonment, a fine of $75,000, or both.

1. There is also a transfer charge from the Magistrates Court of driving unlicensed which is related to the above offence. This charge is contrary to s 31(1) of the Road Transport (Driver Licensing) Act 1999 (ACT), and carries a maximum penalty of $3,000.

1. The result of the Crown’s acceptance of the plea of guilty to Count 2 in full satisfaction of the indictment (noting that Count 1 related to a robbery with an offensive weapon) is that the offender is to be sentenced only for driving a stolen vehicle.

1. The offender has been in custody in respect of the current offence for 89 days.  

1. The offender has a significant criminal history including a number of driving offences. I accept that these are technical driving offences and not necessarily offences of dishonesty. This offence could be categorised as being of less than medium objective seriousness.

1. Sentencing requires consideration of the objects and principles of sentencing as set out in ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT). Section 33 is also relevant as is s 10. The latter section says a person should not be sent to prison except as a last resort.

1. It is an integral part of the sentencing process that deterrence plays a significant part in particular for offences involving motor vehicles where the public is consistently subjected to the stealing of vehicles and the upset and inconvenience that flows from this offence.

1. The offender was born in New South Wales but has lived most of his life in the ACT. He spent a number of his early years in foster care which created a difficult environment for him. He does not have much education, having left school in Year 9. The offender does have the benefit of supportive siblings and a supportive mother.

1. The offender has a long history of drug use and has suffered the ravages of the effects of being a drug addict. These effects have permeated his relationships and his capacity to be employed. He is currently on a methadone program. His entire future rests on him gaining control of his use of drugs.

1. Exhibit 1 contains a letter from the offender in which he appears to recognise both his need to conquer his addiction and also to realign his life to follow an orderly and legal path. I think he must be given every opportunity to be rehabilitated. He is a young man and has the capacity to be a decent and contributing member of society.

1. He must however realise that he will not have many, or perhaps any, more chances to escape from his lifestyle to date. If he does not take this opportunity he may condemn himself to a life of crime where his primary address is a prison.

1. I accept that the plea of guilty was effectively made at an early stage and would have occurred earlier than it did but for the consideration of the robbery offence. Had the robbery offence not been a factor he would probably have been sentenced last year in the Magistrates Court. I think that a discount of approximately 20% should be applied to any prison sentence.

1. The offender has already been in custody for almost 3 months so that a term of imprisonment is an inevitable sentence. The real question is whether the term should extend beyond the time already spent and, if so, whether the offender should remain confined. But for his extensive record I might have considered a term of imprisonment that ended very shortly. However his record and his need for supervision prevent such an approach.

1. In order to achieve both deterrence and hopefully rehabilitation I intend to suspend the balance of the sentence I will impose with immediate effect on condition that the offender enter a good behaviour order for a period of 12 months during which he is to accept the supervision of the Director-General of corrective services.

1. I make the following orders:

(a)In relation to the offence of driving a motor vehicle without consent (CC2018/4520), the offender is sentenced to 6 months’ imprisonment (reduced from 8 months’ imprisonment) commencing on 4 February 2019 and ending on 3 August 2019.

(b)The sentence of imprisonment is suspended with immediate effect on condition the offender enter into a Good Behaviour Order for a period of 12 months and comply with his obligations under the Crimes (Sentence Administration) Act 2005 (ACT) and further that he accept the supervision of ACT Corrective Services and obeys all reasonable directions of the Director-General or her delegate for 12 months or such shorter time as the Director-General decides. The Good Behaviour Order is subject to the following additional condition that the offender engage in such programs as the Director-General decides in respect of drug abuse.

(c)In relation to the transfer charge of driving unlicensed (CC2018/4521), the offender is sentenced to a fine of $500 with no time to pay, backdated to 4 February 2019 and payable 4 March 2019 and payable on 4 March 2019.

I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: 3 May 2019