R v Ogilvie (No 3)
[2016] ACTSC 381
•22 December 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Ogilvie (No 3) |
Citation: | [2016] ACTSC 381 |
Hearing Dates: | 12 December 2016 |
DecisionDate: Reasons Date: | 12 December 2016 22 December 2016 |
Before: | Refshauge J |
Decision: | 1. The Good Behaviour Order made for Dillon Ogilvie on 15 July 2016 be cancelled. 2. The conviction of aggravated burglary on 18 June 2014 be confirmed. 3. Dillon Ogilvie be sentenced to two years and one month imprisonment to commence on 5 December 2016. 4. The conviction of dishonestly driving somebody else’s motor vehicle without consent on 18 June 2015 be confirmed. 5. Dillon Ogilvie be sentenced to 10 months imprisonment to commence on 5 December 2016. 6. The conviction for burglary on 19 June 2014 be confirmed. 7. Dillon Ogilvie be sentenced to 18 months imprisonment to commence on 5 July 2018. 8. The conviction of dishonestly taking somebody else’s motor vehicle without consent on 19 June 2014 be confirmed. 9. Dillon Ogilvie be sentenced to 10 months imprisonment to commence on 5 February 2019. 10. The conviction for theft on 19 June 2014 be confirmed. 11. Dillon Ogilvie be sentenced to 10 months imprisonment to commence on 5 April 2019. 12. The sentences be suspended on 12 December 2016 for two years. 13. Dillon Ogilvie be required to sign an undertaking to comply with the offender’s Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a two year period from 12 December 2016 with the following conditions: (a) a probation condition that he accept supervision of the Director-General or her delegate for a period of two years or such lesser period as the person supervising him considers appropriate, and obey all reasonable directions of the person supervising him, including as to counselling for anger management; and (b) a community service work condition that he perform 150 hours of community service work within two years from 12 December 2016. 14. Dillon Ogilvie be directed to attend ACT Corrective Services at Level 1, 249 London Circuit, Canberra City by 4:00 pm on 12 December 2016 to make arrangements to continue supervision and performing community service work. 15. It be recommended to ACT Corrective Services that Dillon Ogilvie be considered for work, such as making cages to capture Myna birds, which work will not cause a problem to his knee injury and which will not risk him having contact with persons who may injure him. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sentencing – breach of Good Behaviour Order – consideration of breach – offender ambivalent regarding obligations – cancellation of Good Behaviour Order – suspended sentence – community service work direction – construction of Myna bird cages recommended as the community service work direction |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), ss 86(1)(f), 112 |
Cases Cited: | Banning v Looney 213 F.2d 771 (1954) |
Parties: | The Queen (Crown) Dillon Ogilvie (Defendant) |
Representation: | Counsel Mr J Walker (Crown) Mr H Jorgensen (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid (ACT) (Defendant) | |
File Numbers: | SCC 267 of 2014 SCC 268 of 2014 |
REFSHAUGE J:
The role of the Court is to impose the just and appropriate sentence for the offences committed by an offender and it is the role of the executive government to administer the sentence.
Indeed, the limited role of courts in the administration of sentences can be seen in the pithy statement of the United States Court of Appeals, Tenth Circuit, in Banning v Looney 213 F.2d 771 (1954) which held:
Courts are without power to supervise prison administration or to interfere with the ordinary prison rules or regulations.
Of course, this did not take into account the later effects of administrative law which has eroded some of the force of such a general principle. See, for example, Griggs v Sentence Administration Board of the Australian Capital Territory [2010] ACTSC 155; 5 ACTLR 185.
Nevertheless, the constitutional separation remains an important constraint to be borne in mind, as noted in R v Pumpa [2015] ACTSC 177 at [32].
On the other hand, it is clear that the conditions under which a sentence is to be served can be taken into account and is relevant to sentencing without encroaching on the proper role of the executive: WW (a child) v Williams [2013] WASC 363 at [23]-[28].
This is relevant in these proceedings for the proper sentence to be imposed on the offender, Dillon Ogilvie, is somewhat dependent on the conditions under which the sentence is to be served. Thus, while I have no power to determine those conditions and do not wish to do so, the conditions will have an effect on the proper sentence, which should, in an appropriate case, as this is, have regard to those conditions.
On 12 December 2016, having found he breached a Good Behaviour Order I made on 15 July 2016 when, as required, I re-sentenced Mr Ogilvie. I said I would later deliver some more detailed reasons for that re-sentence. These are those reasons.
Background
Mr Ogilvie was sentenced on 9 September 2015 for offences of aggravated burglary (the circumstances of aggravation being that he was in company), burglary, theft, dishonestly without consent driving someone else’s motor vehicle, and dishonestly taking someone else’s motor vehicle without consent.
I sentenced him to a total period of imprisonment of three years and five months, which I backdated by a few days to take into account pre-sentence custody, but then suspended it and made the required Good Behaviour Order for three years with a probation condition and a community service work condition to perform 150 hours of community service work within two years. See R v Ogilvie [2015] ACTSC 296.
Mr Ogilvie had a strained relationship with ACT Corrective Services who are responsible for the supervision of the Good Behaviour Order and, in particular, the probation condition and the community service work condition.
Thus, on 9 May 2016, a Community Corrections Officer reported that Mr Ogilvie, while he had attended for the induction required prior to commencing his community service work had failed to attend thereafter. I have set out the relevant history in R v Ogilvie (No 2) [2016] ACTSC 265 at [13]-[22].
There were, in summary, two problems: Mr Ogilvie sustained an injury to his anterior cruciate ligament which limited his physical capacity for the labouring type community service work that he would ordinarily be required to undertake.
Mr Ogilvie was also concerned that one of the offenders with whom he would be required to work was a person against whom he had given evidence and who had, subsequently, threatened to kill him.
There is no doubt that it is the responsibility of the corrections authorities to provide for the safety of the offenders whose sentencing they are required to administer. See Burchell (1987) 34 A Crim R 148 at 151, R v Collins [2004] ACTSC 73 at [16].
I heard from a Community Corrections Officer who was well aware of these responsibilities and who clearly took them seriously. He informed me that, in order to meet the proper response to these two problems identified by Mr Ogilvie, there was another option available to him, namely that he could build cages for the capture of Myna birds.
These birds, introduced to Australia in 1862 from their native habitat from Afghanistan through India to Indochina, for the purpose of controlling insects in Melbourne market gardens, are aggressive and intelligent. They evict native birds from their nests and pose a threat for the long-term survival of native birds and mammals in the Canberra region. There is a concerted effort now to capture and humanely euthanise or relocate the birds.
Apparently the cages to trap the birds were originally being constructed at the Alexander Maconochie Centre but subsequently that work was transferred to Community Corrections to be undertaken at their Civic offices.
The work is clearly of significant benefit to the community and should not be seen as any kind of “soft option”. Indeed, as I noted in R v Ogilvie (No 2) at [26]-[27], Mr Ogilvie did not feel enthusiastic about the work. That, of course, barely enters into the proper consideration of the matter.
In R v Ogilvie (No 2) at [23]-[25], I summarised the relevant evidence of the Community Corrections Officer as follows:
23.In evidence before me, the Community Corrections Officer acknowledged that there can be difficulties when there are adverse interactions between offenders and this has to be managed. He stated that ACT Corrective Services would take reasonable steps to avoid putting an offender subject to a community based order in a situation where there was a risk of injury either medically (relating to Mr Ogilvie’s knee) or from violence (related to the threat that had been made by another offender).
24.In particular, he advised that ACT Corrective Services were now able to provide alternative community service work, being the construction of cages for the capture of Myna birds, which were, it appears, transferred to Eclipse House, which is the headquarters of ACT Corrective Services, from the Alexander Maconochie Centre.
25.There are few offenders who take up this option, which would reduce any risk to Mr Ogilvie, and it is available to him.
In that decision, in addition to re-imposing essentially the same sentence, though with an extended Good Behaviour Order, for reasons mentioned in R v Curtis (No 2) [2016] ACTSC 34 at [16], I recommended to ACT Corrective Services that Mr Ogilvie be considered for this work.
Facts of the Breach of the Good Behaviour Order
A further report was made to me that Mr Ogilvie had breached the further Good Behaviour Order I had made. The relevant parts of the affidavit of the officer are as follows:
7.On 1 August 2016, Mr Ogilvie attended an appointment with his supervising officer. He was seen by the Community Service Organiser after this appointment. He advised [that] the judge had told him he did not have to do work crew. He was directed to supply medical certificates before 5 August 2016, which verified he was unable to do work crew. During this appointment Mr Ogilvie’s attitude was rude and belligerent. Checks with the ACT Supreme Court Registrar advised there had been a notification on the Court bench sheets advising Mr Ogilvie could participate in the erection of bird cages at ACTCS in order to complete his community service work hours. This service has not been able to obtain a copy of these bench sheets.
8.On 18 August 2016, Mr Ogilvie supplied a medical certificate dated 4 August 2016 to his supervising officer which was forwarded to the Community Service Work Unit. The medical certificate advised Mr Ogilvie was fit for light duties which included avoiding lifting over 10 kgs from 4 August to 10 November 2016. Mr Ogilvie declined to be seen by the Community Service Work Unit at this appointment. However, on the same date, a telephone call was made to Mr Ogilvie, and he was directed to attend this Service on Monday 22 August 2016 to sign a work instruction to commence building bird cages as per his medical certificate.
9.On 22 August 2016, Mr Ogilvie failed to attend as directed, and failed to notify of his inability to do so.
10.On 7 September 2016, a telephone call was made to Mr Ogilvie during which he advised he would be undergoing surgery on his knee on the following day. He was reminded that he had failed to attend on 22 August 2016, as directed.
11.On 20 September 2016, Mr Ogilvie’s supervising officer advised this Service Mr Ogilvie was presently residing in Goulburn with his partner and was required to attend Goulburn Court on this day in regard to a driving matter. He had not sought or received approval to stay in Goulburn prior to leaving the ACT.
12.On 27 September 2016, Mr Ogilvie attended this Service and was seen prior to his supervision appointment. He advised he had surgery the previous week then changed this to three weeks ago, he stated he had left hospital early, signing himself out, and could not supply a medical certificate. He advised he did not want to do work crew. He was advised his medical certificate stated he could do light duties and building bird cages would be suitable community service work. A work instruction was prepared for him to sign and commence work on 10 October 2016 due to the public holiday on 3 October 2016. He initially stated he would attend and then changed his mind and refused to sign the work instruction. He advised he could not get to his Doctor’s for at least a month. He then changed this and said he could possibly attend with his mother who had an appointment next week. He advised he would get a medical certificate to state he could build bird cages. Mr Ogilvie was advised he could sit or stand and that building bird cages were very easy and light weight. However, he again refused to sign the work instruction.
The officer did not give oral evidence and was not subject to cross-examination.
Mr Ogilvie did give oral evidence and was cross-examined. He confirmed that he was living in Goulburn with his girlfriend and had notified ACT Corrective Services of his address.
He addressed the allegation that he had been rude and was unable to perform his community service through the work crew.
His evidence was:
One of the notes said that you were rude and belligerent during the course of that interview or one of the allegations is, do you remember that? --- I wasn’t because they were trying to tell me that your Honour didn’t sentence me to do the miner [sic] bird cages and they had no paperwork to say that I was supposed to do that and then I had to go out on the work crew and I told them I’m not going out on the work crew and then they said, well we’re going to breach you then, and I said okay and then I left and then they rang me a while later and said that they found the paperwork and that I was supposed to do it. But in between there and then I had my knee surgery.
He indicated that he had had surgery on his knee on 8 September 2016. Copies of the hospital notes admitted into evidence confirmed this. He discharged himself from hospital because, he said, “I don’t like to sleep in hospitals”.
The Discharge Summary noted that he had not had any physiotherapy rehabilitation and treatment but recommended that he undertake such treatment; indeed it recommended to his general practitioner, “Please ensure he gets outpatient physiotherapy”. Post-operative review was required in four to six weeks.
There was a further problem on 20 September 2016 when Mr Ogilvie failed to attend for supervision. The case notes show that his Community Corrections Officer telephoned him and he explained that he had forgotten about the appointment. Another appointment was suggested and he said that he would be in Goulburn that day for Court. When asked why he had not obtained approval for such travel, as required under one of the core conditions of his Good Behaviour Order (s 86(1)(f) of the Crimes (Sentence Administration) Act 2005 (ACT)), the case notes record that “he used offensive language”.
Despite this, he was given leave to attend for Court in Goulburn. I did not have the details of the Court requirement. He did attend the next appointment with ACT Corrective Services, though there still seemed, according to the notes, to be some friction when he evinced the attitude that he could pick and choose the agencies to which he is referred; that attitude, of course, is not correct and Mr Ogilvie is required to comply with all reasonable directions of his supervisor.
Asked about his failure to commence work on 10 October 2016, his failures to obtain the requested medical certificates, and his refusal to sign the required work instruction, he said in evidence to me:
Well I tried to get a doctors [sic] certificate because they were still trying to put me back on the work crew and I was trying to get a doctors [sic] certificate to say that I couldn’t do that and then they just said they were going to breach me so I didn’t worry about it – well, I worried about it because they were obviously breaching me but I didn’t attend and Daniel [the Community Corrections Officer responsible for supervising Mr Ogilvie] didn’t make me any other appointments because they had already breached me for my community service.
He explained that he did not sign the work instruction by saying that the instruction was “trying to put [him] on the work crew not the bird cages”.
Mr Ogilvie presently has part-time work in Goulburn and some part-time work in Canberra. He rates his physical capacity as “pretty good now”. His knee was not preventing him from his Goulburn part-time work which is welding and building gates. He also continues to have work setting up concert events.
This appears to suggest that his physical condition is no longer an impediment to more strenuous work for community service but the problem of interaction with persons who may put him at risk of harm remains.
I note that, in the earlier hearing on 13 July 2016, it was made clear to me that Mr Ogilvie would, were I to recommend it, be given work making the bird cages. I note that my remarks in R v Ogilvie (No 2) were not on the ACT Corrective Services file which had been produced to the Court under subpoena whereas my original sentencing remarks, R v Ogilvie, were there. That may be a source of some of the confusion.
I will, in this case, take specific steps to ensure that these remarks are provided to ACT Corrective Services.
Breach of Good Behaviour Order
Given that Mr Ogilvie has completed only two hours of the community service work condition to the original Good Behaviour Order and none of the hours for the Good Behaviour Order made on 15 July 2016, it was inevitable that, there being no excuse or justification for not doing so, the breach was admitted.
Having said that, there did seem to be some explanation for that as the specific recommendation I had made and the background for it had not been advised to ACT Corrective Services. There was a clear disconnect between the expectations of Mr Ogilvie (who expected to be required to build bird cages) and that of ACT Corrective Services (who seemed focussed only on the medical issues to justify work other than on the work crew). This misalignment of expectations may have led to some of the unsatisfactory interactions between Mr Ogilvie and ACT Corrective Services.
Mr Ogilvie has a sense of entitlement which is misplaced. I cannot, however, punish him for his attitude. He has no right to be rude or offensive and I do not condone such unacceptable behaviour. While I cannot punish him for it, such behaviour does reduce the capacity for me to mitigate the actions I should take.
Nevertheless, as I have limited power to supervise Corrective Services regulations, I have a limited role in enforcing them.
On the other hand, should the administration of the sentences I impose have consequences inconsistent with the sentence I consider just and appropriate, that is a proper basis for me to modify the sentence to ameliorate or avoid those consequences. See, for example, York v The Queen [2005] HCA 60; 225 CLR 466 at 476; [32].
I have set out in various decisions the approach that the Courts in this jurisdiction take to breaches of Good Behaviour Orders. Indeed, I addressed that in R v Ogilvie (No 2) at [31]-[33]. I do not need to repeat what I said, but I approached this matter in that way. I repeat my regret expressed in that decision at [30], that the present legislation is rather inflexible and should have some moderation such as that which appears in s 98(2) and (3) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Consideration
In my view, there is sufficient confusion and uncertainty in the difference of expectations between this Court, Mr Ogilvie, and ACT Corrective Services, that the time has not yet come when I should impose the sentence that has been suspended.
If, however, Mr Ogilvie does not make real progress in completing the community service work that is a condition of the Good Behaviour Order, then I will, absent exceptional circumstances, impose the sentence that I have suspended.
If, however, ACT Corrective Services is unable or unwilling to have Mr Ogilvie complete that work by constructing bird cages, it should refer the matter back to me under s 112 of the Crimes (Sentence Administration) Act so that I can consider whether I need to take some other action to ensure that the sentence I impose has not unintended consequences.
Disposition
I have reminded myself of the nature and circumstances of the offences committed by Mr Ogilvie as set out in R v Ogilvie at [6]-[11] and summarised in R v Ogilvie (No 2) at [42]-[45].
I have also reminded myself of Mr Ogilvie’s personal circumstances as set out in R v Ogilvie at [16]-[24] and updated in R v Ogilvie (No 2) at [47]-[54].
I have regard to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) and to the matters that, under s 33 of that Act, I am required to consider.
I note that Mr Ogilvie has paid the compensation I directed that he pay and that, so far as I am aware, he has not been convicted of any further offences that would breach any of the Good Behaviour Orders I have made in these proceedings.
For the reasons set in R v Ogilvie, R v Ogilvie (No 2) and in these reasons, I considered that I should re-sentence Mr Ogilvie to the same sentence, though this will extend the good behaviour period which he has to serve.
As a result, I made the orders by which I re-sentenced Mr Ogilvie. These are my reasons for doing so.
I will arrange for a copy of these reasons to be forwarded to ACT Corrective Services.
| I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 22 December 2016 |
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