R v OI (No 2)
[2022] ACTSC 8
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v OI (No 2) |
Citation: | [2022] ACTSC 8 |
Hearing Date: | 31 January 2022 |
DecisionDate: | 31 January 2022 |
Before: | Mossop J |
Decision: | See [14] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – breach of good behaviour order – further offences – breach offences dealt with in the Magistrates Court – young offender – mental illness diagnosis – offender has largely ceased illicit substance use and made progress with employment and family relationships – reasonable prospects of rehabilitation – importance of not undermining rehabilitative progress – resentenced to imprisonment – wholly suspended upon entry into a good behaviour order |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), ss 86, 110 Crimes (Sentencing) Act 2005 (ACT), s 133B |
Cases Cited: | R v OI [2020] ACTSC 286 |
Parties: | The Queen ( Crown) OI ( Offender) |
Representation: | Counsel E Wren ( Crown) J Maher ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Kamy Saeedi Law ( Offender) | |
File Number: | SCC 201 of 2020 |
MOSSOP J:
Introduction
On 14 October 2020 I sentenced OI, who was then under the age of 18, on a single count of aggravated robbery: see R v OI [2020] ACTSC 286. The aggravated robbery involved threatening a taxi driver with a knife and taking $45 from him. I imposed a sentence of four months and 15 days’ imprisonment which was wholly suspended upon entering into a good behaviour order. The good behaviour order operated from 14 October 2020 until 13 October 2021. Unfortunately, during that time OI committed further offences. Some of those offences were punishable by imprisonment and, as a consequence, involved a breach of his good behaviour obligations under s 86 of the Crimes (Sentence Administration) Act 2005 (ACT).
The relevant breaches of the offender’s good behaviour obligations were:
(a)on 1 March 2021 he drove while disqualified;
(b)on 13 March 2021 he drove while disqualified;
(c)on 22 March 2021 he drove while disqualified and had a prescribed drug in his oral fluid (as a repeat offender);
(d)on 3 April 2021 he drove while disqualified; and
(e)on 7 July 2021 he drove while disqualified.
The offender did commit other offences during the time of the good behaviour order but those were not punishable by imprisonment and hence did not involve a breach of his good behaviour obligations.
The issue before the court arising from these breaches is that under s 110 of the Crimes (Sentence Administration) Act, namely, whether to impose the suspended sentence or resentence the offender.
The circumstances of the initial offending and the offender are set out in the reasons that I gave at the time of the original sentence: see R v OI.
Current circumstances
Information about the offender and his progress since the imposition of the sentence and the further offending are provided by a Child and Youth Protection Services (CYPS) pre‑sentence report and an ACT Corrective Services pre-sentence report. Additional information is provided in three references, three letters of support from counsellors who dealt with him and a report of Ms Leesa Morris, psychologist, dated 9 August 2021.
The offender is currently 18 years old. He was 16 years and 11 months old at the time of the aggravated robbery and was 17 years old at the time that he was sentenced. The good behaviour order was subject to a condition requiring supervision and he remained compliant with supervision and reasonable directions. The first three breach offences were committed in the same vehicle. The fourth was committed in a different vehicle. His mother reported that after the last offence, he sold his motor vehicles so as to get rid of the temptation to drive. He remains living with his parents. He is reported to be getting along well with his brother who is supporting him with transportation. His mother reported that his relationship with his parents has improved immensely. She also reported that attending court as an adult in the Magistrates Court as opposed to the Childrens Court was a different experience for him and a “wake-up” call.
The offender is now working full-time for a landscaping company. His current supervisor records that he is a model employee and gets along with people from every age group. He has given up using illicit drugs, although he still uses cannabis. His mother reports that ceasing to use “heavy drugs” has led to a change in him. He has no interest in further study or an apprenticeship. The author of the CYPS pre-sentence report identifies him having a low risk of general recidivism. He is assessed by that report as not suitable for community service work because of his previous involvement with illicit drugs, his full‑time employment and his personal circumstances.
The ACT Corrective Services pre-sentence report identifies that the offender’s association with antisocial peers required to obtain cannabis remains a matter of concern. It also records that overall, he demonstrated poor insight into his offending behaviour. He was assessed as a “Medium-Low” risk of general reoffending. In contrast to the CYPS pre‑sentence report, he was assessed as being suitable for a community service work condition. The letter from his mother attests to his significant efforts to get his life on track in all areas and his much-improved relationship with his family. The letter from a past employer and the offender’s current employer were both very positive about his dedication to his employment. The report of Ms Morris includes a diagnosis of attention deficit hyperactivity disorder and discloses some additional aspects of his involvement in the drug subculture in the past.
What to do?
In the original sentencing decision, I indicated that the period of the good behaviour order was to be modest so as to provide a realistic target to aim for in order to put his offending and the consequences of it behind him. I indicated that if he breached the good behaviour order, the likelihood would be that he would spend time in full-time detention. Plainly, that message did not get through.
All except the last of the breach offences were committed prior to the offender turning 18. In relation to those offences, he therefore retains the benefit of those statutory provisions relating to sentencing of young persons: see s 133B of the Crimes (Sentencing) Act 2005 (ACT). He committed a series of offences which demonstrate a lack of capacity for consequential thinking. Only someone who lacked maturity would continue to persistently breach the law in the manner that he did. It must be noted, however, that the offending is of a different character to that for which he was sentenced. There is no evidence that he has continued down a path involving criminal activity in order to obtain money for drugs. Indeed, the position seems to be the reverse, namely, that he has largely given up illicit drug use and is financially independent as a result of lawful employment.
In my view, having regard to the offender’s age, the circumstances of the offending and the significant progress that he has made with employment and getting his life on track generally, it is not appropriate to simply impose the period of imprisonment to which he was initially sentenced. That, in my view, would be counter-productive because it would tend to undermine the progress that the offender has made towards leading a lawful and productive life. The impression obtained from the material in his subjective circumstances suggests that this is simply a process of growing up. So long as he retains the support of his family, there are reasonable prospects for that process and the community’s long-term interests will clearly be advanced if it can be successful.
I will resentence the offender to the same custodial sentence which will be suspended for a period of four months and 15 days. The good behaviour order will be subject to the core conditions only.
Orders
The orders of the Court are:
1. The good behaviour order made on 14 October 2020 is cancelled.
2. The offender is resentenced to imprisonment for a period of four months and 15 days but that sentence is wholly suspended forthwith upon him entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of four months and 15 days.
| I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop Associate: Date: 18 March 2022 |
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