R v Pelecky (No 2)
[2020] ACTSC 370
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Pelecky (No 2) | |
Citation: | [2020] ACTSC 370 | |
Hearing Date: | 25 September 2020 | |
DecisionDate: | 28 September 2020 | |
Before: | Refshauge AJ | |
Decision: | 1. Patrik Pelecky be convicted of aggravated dangerous driving on 18 April 2020 and be sentenced to nine months imprisonment to commence on 29 April 2020. 2. Patrik Pelecky be convicted of driving an unregistered motor vehicle on that day and be fined $200. 3. Patrik Pelecky be convicted of dishonestly driving a motor vehicle without the owner's consent between 2 and 5 December 2019 and be sentenced to six months imprisonment to commence on 28 November 2020. 4. Patrik Pelecky be convicted of minor theft on 19 April 2020 and be sentenced to a fine of $300. 5. Patrik Pelecky be convicted of dishonestly driving a motor vehicle without the owner's consent on 20 April 2020 and be sentenced to eight months imprisonment to commence on 28 December 2020. 6. Patrik Pelecky be convicted of driving with a prescribed drug in his oral fluid on 20 April 2020 and be sentenced to a fine of $250. 7. Patrik Pelecky be convicted of leaving the scene of a crash without reporting his prescribed particulars on 20 April 2020 and be fined $250. 8. Patrik Pelecky be convicted of escaping arrest on 22 April 2020 and be sentenced to three months imprisonment to commence on 29 June 2021. 9. Patrik Pelecky be convicted of burglary on 23 April 2020 and be sentenced to 14 months imprisonment to commence on 28 April 2021. 10. Patrik Pelecky be convicted of theft of the motor vehicle on 28 April 2020 and be sentenced to six months imprisonment to commence on 28 April 2021. 11. Patrik Pelecky be convicted of the first offence of obtaining property by deception on 23 April 2020 and be sentenced a fine of $300. 12. Patrik Pelecky be convicted of the second offence of obtaining property by deception on 23 April 2020 and be fined $300. 13. Patrik Pelecky be convicted of recklessly driving on 25 April 2020 and be sentenced to six months imprisonment to commence on 29 December 2021. 14. Patrik Pelecky be convicted of aggravated dangerous driving as a repeat offender on 25 April 2020 and be sentenced to 14 months imprisonment to commence on 29 October 2021. 15. Patrik Pelecky be convicted of property damage on 25 April 2020 and be sentenced to two months imprisonment to commence on 29 October 2021. 16. Patrik Pelecky be convicted of property damage also on 25 April 2020 and be sentenced to two months imprisonment to commence on 29 October 2021. 17. Patrik Pelecky be convicted of dishonestly driving a motor vehicle without the owner's consent on 27 April 2020 and be sentenced to nine months imprisonment to commence on 29 June 2022. 18. Patrik Pelecky be convicted of failing to stop when directed by police as a repeat offender on 27 April 2020 and be sentenced to two months imprisonment to commence on 29 June 2022. 19. Patrik Pelecky be convicted of dishonestly driving a motor vehicle without the owner’s consent on 28 April 2020 and be sentenced to nine months imprisonment to commence on 29 September 2022. 20. Patrik Pelecky be convicted of aggravated dangerous driving as a repeat offender on 30 April 2020 and be sentenced to 14 months imprisonment to commence on 28 September 2022. 21. Patrik Pelecky be convicted of failing to stop when directed by police on 30 April 2020 and be sentenced to two months imprisonment to commence on 28 September 2022. 22. Patrik Pelecky be convicted of minor theft on 30 April 2020 and be sentenced to a fine of $300. 23. Patrik Pelecky be convicted of dishonestly driving a motor vehicle without the owner's consent on 30 April 2020 and be sentenced to nine months imprisonment to commence on 29 May 2023. 24. Patrik Pelecky be convicted of resisting a territory official in the execution of their duties on 30 April 2020 and be sentenced to two months imprisonment to commence on 29 January 2024. 25. Patrik Pelecky be convicted of possessing ammunition and be sentenced to a fine of $300. 26. Patrik Pelecky be convicted of possessing a knife without a reasonable excuse and be sentenced to a fine of $300. 27. Patrik Pelecky be convicted of unlawful possession of goods reasonably expected to be stolen and be sentenced to eight months imprisonment to commence on 28 August 2023. 28. In relation to the fines that have been imposed, Patrik Pelecky be given 12 months to pay. 29. On the offence of aggravated dangerous driving as a first offender on 18 April 2020, Patrik Pelecky be disqualified from obtaining or holding a driver licence for three months. 30. On the charge of aggravated dangerous driving as a repeat offender on 25 April 2020, Patrik Pelecky be disqualified from obtaining or holding a driver licence for 12 months. 31. On the charge of failing to stop for police on 27 April 2020, Patrik Pelecky be disqualified from obtaining or holding a driver licence for 12 months. 32. On the charge of failing to stop for police on 30 April 2020, Patrik Pelecky be disqualified from obtaining or holding a driver licence for 12 months. 33. For the charge of driving with a prescribed drug in his oral fluid, Patrik Pelecky be disqualified from obtaining or holding a driver licence for the minimum period of six months. 34. For the offence of recklessly driving as a repeat offender on 25 April 2020, Patrik Pelecky be disqualified from obtaining or holding a driver licence for 12 months. 35. It be noted that this is a total sentence of four years. 36. A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made in respect of Patrik Pelecky for 12 months from today for the primary offence of aggravated dangerous driving as a first offender on 18 April 2020, for which he has been convicted and sentenced today. 37. That Order be extended to all the other 17 offences for which Patrik Pelecky has been convicted and sentenced today as associated offences. 38. It be noted that the convictions for the primary offence and associated offences have been recorded and that sentences have been imposed for them, which convictions and sentences are hereby incorporated into the Drug and Alcohol Treatment Order. 39. The sentence of four years, being the total of the sentences for the primary offence and associated sentences, be suspended for a period of 12 months from today under s 80W of the Crimes (Sentencing) Act 2005 (ACT). 40. Patrik Pelecky be required to sign an undertaking to comply with the offender's Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years and two months from 29 September 2021 and to end on 28 April 2024, with a probation condition that he accept supervision from the Commissioner of ACT Corrective Services or his delegate for two years and two months, 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 or further treatment. 41. For the treatment and supervision part of the Drug and Alcohol Treatment Order, Patrik Pelecky be ordered to travel immediately to Canberra Recovery Services at Fyshwick, ACT and admit himself to the program of residential drug rehabilitation there and remain in the program for the duration of the program and obey all the rules of the facility and of the program. 42. Patrik Pelecky be directed that should he leave the facility without the authority of the court, or prior to the completion of the program, he present himself to ACT Corrective Services by 4:00 pm on the next business day. 43. Patrik Pelecky be ordered to comply with any requirements as to treatment or counselling, urinalysis, case management or other attendances required by any member of the Treatment Order Team, and that he be ordered to comply with the directions of the court about attendance in court, whether in person or by electronic means, and also about any other treatment or supervision that he may be required to undergo from time to time. 44. Patrik Pelecky be required to attend court, either in person or electronically, on 2 October 2020. | |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated dangerous driving – driving an unregistered motor vehicle – dishonestly driving a motor vehicle without the owner's consent – minor theft – driving with a prescribed drug in oral fluid – leaving the scene of a crash without reporting prescribed particulars – escaping arrest – burglary – theft – obtaining property by deception – recklessly driving – property damage – failing to stop when directed by police as a repeat offender – minor theft – resisting a territory official in the execution of their duties – possessing ammunition – possessing a knife without a reasonable excuse – unlawful possession of goods reasonably expected to be stolen – relative youth – prospects of rehabilitation – Drug and Alcohol Treatment Order made | |
Legislation Cited: | Crimes Act 1900 (ACT) ss 160, 382(1) Crimes (Sentencing) Act 2005 (ACT) ss 12, 12(3), 12A, 46J, 80W, 80ZA; Table 46K Supreme Court Act 1933 (ACT) Pt 8 | |
Cases Cited: | Hogan v Hinch [2011] HCA 4; 243 CLR 506 Kelly v Ashby [2015] ACTSC 346; 73 MVR 360 Smith v Stivala [2018] ACTSC 309 | |
Parties: | The Queen ( Crown) Patrik Pelecky ( Participant) | |
Representation: | Counsel K Reardon ( Crown) J Sabharwal (25 September 2020) and A Bucknell (28 September 2020) ( Participant) | |
| Solicitors ACT Director of Public Prosecutions ( Crown) Rachel Bird & Co ( Participant) | ||
File Numbers: | SCC 185 of 2020; SCC 186 of 2020 | |
REFSHAUGE AJ:
Patrik Pelecky is approaching 20 and yet has started his adult life in a most inauspicious way. He has accumulated a criminal record of 14 offences and now stands for sentence on 27 offences mostly committed between 18 and 30 April 2020, with one committed between 2 and 5 December 2019. This is a complex and daunting exercise which requires all the skill of a sentencer to craft a sentence that meets the needs of victims, the community generally, and Mr Pelecky himself.
In summary, the offences range over dishonesty offences, driving offences, and regulatory traffic offences. I have before me, in addition to the details of the charges to each of which Mr Pelecky has pleaded guilty, an Agreed Statement of Facts, Mr Pelecky's Criminal History, a comprehensive and helpful Pre-Sentence Report, three Victim Impact Statements, two (Suitability Assessment) reports, being a Drug and Alcohol Treatment Assessment of ACT Corrective Services dated 16 September 2020 and a Drug and Alcohol Sentencing List Suitability Assessment report from the Alcohol and Drug Services dated 18 September 2020, both made under s 46J of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), an email chain of 18 and 23 September 2020 relating to Mr Pelecky's admission to Canberra Recovery Services’ residential drug rehabilitation program, and a case plan for the treatment and supervision of Mr Pelecky. I used all of them to form the basis to my findings.
The Facts
Sometime between 2 and 4 December 2019, Mr Pelecky was a passenger in a motor vehicle that had been stolen from the driveway of the owner's residence by a person who forcibly removed the keys which were on a lanyard around the owner's neck. Mr Pelecky knew that the motor vehicle had been stolen. Mr Pelecky asked if he could borrow the car, and when that was agreed, he used it variously to drive between Weston, Belconnen and Tuggeranong. Sometimes he had a passenger in the vehicle and sometimes he did not. He was arrested by police and admitted to his conduct and that he had, at the time, been highly affected by drugs. The vehicle was recovered by police and there was no evidence of damage to it. These facts were the basis of the first charge of dishonestly driving a motor vehicle without the owner's consent.
On or about 18 April 2020, Mr Pelecky borrowed another vehicle from a different owner, with that owner's consent. Police contacted the owner of the vehicle and ascertained that Mr Pelecky was the driver. It was, however, an unregistered motor vehicle. There is no evidence as to whether Mr Pelecky knew this. In any event, he then drove the vehicle at about 7:00pm that day along Belconnen Way towards Eastern Valley Way and then to College Street. While travelling along Belconnen Way between Haydon Drive and Eastern Valley Way, where the sign-posted speed limit is 80 kilometres per hour, he was checked by police to be travelling at a speed of 145 kilometres per hour, which was more than 81 per cent in excess of the speed limit. Later, on Eastern Valley Way, police following the vehicle activated their vehicle's emergency lights and sirens, signalling to Mr Pelecky to stop, but he failed to do so. In addition to these specific matters, Mr Pelecky's driving showed bad driving, including that when initially noticed by police, he did not have the vehicle's lights on even though there was poor visibility as the sun had set and the road was poorly lit. He was generally driving in excess of the signposted speed limit and travelled through red traffic lights at two intersections. These facts constituted the offences of aggravated dangerous driving as a first offender and driving an unregistered vehicle.
On 19 April 2020, Mr Pelecky drove the same vehicle into a service station at Fyshwick, filled it with petrol from a pump on the site and then drove away without paying for the petrol, which cost $76.13. This founded the charge of minor theft.
On 20 April 2020, Mr Pelecky was driving a stolen motor vehicle that had been stolen earlier that day. There is no evidence that Mr Pelecky stole it. Indeed, he said that he did not know it was stolen, as he had borrowed it from a friend. He assumed, however, that it was stolen. The car was involved in a collision in Gordon when Mr Pelecky failed to give way at a roundabout. Mr Pelecky left the vehicle without speaking to the driver of the other car, or anyone else at the scene, and did not leave his required particulars with them. Police later attended the scene and later located Mr Pelecky in the neighbouring suburb and tested him for alcohol and drugs. The testing results revealed that Mr Pelecky was positive for drugs. The motor vehicle was heavily damaged in the collision. These are the facts leading to the charges of dishonestly driving a motor vehicle without consent, driving with a prescribed drug in his oral fluid, and leaving the scene of a collision without giving particulars to the other driver.
On 22 April 2020, Mr Pelecky was walking along Duggan Street, Calwell, when he was approached by police. After Mr Pelecky provided his name and date of birth, the police officer realised that he was the person wanted in connection with the offences allegedly committed on 18 April 2020, and took Mr Pelecky’s right arm and placed him under arrest. He was escorted to a police vehicle, but, before he could be hand-cuffed, he ran from police and, despite being directed to stop, continued running. The police officers following him eventually lost sight of him. These were the facts that led to the charge of escaping arrest.
At 3:15 am on 23 April 2020, Mr Pelecky entered a home in Wanniassa uninvited. He went to the bedroom door, but the owner woke up and Mr Pelecky fled, driving away in a motor vehicle the value of which was said to be $5,000. It was the property of the owner's son. He also appeared to have taken the owner’s credit cards, and perhaps other items, though this was not the subject of a charge. He drove the vehicle to a service station in Calwell and quickly drove away when approached by police. Later that morning, he used the credit cards to purchase goods from a convenience store in Braddon to the value of $22 and then at a department store in Canberra City on two occasions to the value of $99 and $77.86. These were the bases of the offences of burglary, theft and the two charges of obtaining property by deception.
On 25 April 2020, Mr Pelecky was driving the stolen vehicle southward on Yamba Drive when he was followed by police, who attempted to block his path at the intersection of Mugga Lane and Monaro Highway. Mr Pelecky, however, turned sharp right onto the median strip and in doing so, the car he was driving collided with the front passenger side guard of the police vehicle. He then accelerated out of sight, but was later seen in the vehicle, which was stationary at the Erindale Library carpark. He was directed to get out of the vehicle and police attempted to open the door of the vehicle. He drove away, narrowly missing the police vehicle before colliding with the passenger door and front guard of the police vehicle, damaging it and rendering it undriveable. It appears that the vehicle was not recovered, though the evidence of that was a little slim. These facts constituted the basis for two offences of causing damage to Commonwealth property, of aggravated dangerous driving as a repeat offender and of reckless driving as a repeat offender.
At 11:00 pm on 27 April 2020, Mr Pelecky was seen by police driving another stolen motor vehicle in Kambah. The vehicle had been stolen in the early hours of that day. There was no evidence that Mr Pelecky stole the vehicle. Police activated their emergency lights and sirens, directing him to stop, but he sped away. These were the facts that resulted in Mr Pelecky being charged with failing to stop as a repeat offender and dishonestly driving a motor vehicle without the owner's consent.
Finally, on 30 April 2020, Mr Pelecky was driving another motor vehicle that had been stolen earlier that day. He was noticed by police when driving on Drakeford Drive at 8:30 am, about three hours after the vehicle had been stolen. Police activated the emergency lights and sirens and attempted to stop Mr Pelecky, but he kept driving and police did not attempt to intercept him. He drove the vehicle into a service station at Weston Creek and filled the vehicle with petrol from a pump, but then left without paying for the fuel, which cost $98.66. These were the facts that constituted the offences of failing to stop for police and minor theft.
Later, when police sighted the vehicle driving along Cotter Road and attempted to apprehend it, Mr Pelecky pulled the vehicle to the side of the road and got out of the car. Police deployed tyre deflation devices, but Mr Pelecky got back into the vehicle and revved the engine loudly, causing police to fear that they might be struck by the vehicle. He then reversed suddenly, causing the vehicle to strike the elbow of a police officer but, fortuitously, caused no injury. He then continued to reverse before turning around and driving at speed along Lady Denman Drive. These were the facts that founded the charges of dishonestly driving a motor vehicle without the owner's consent and aggravated dangerous driving as a repeat offender.
Later that day, Mr Pelecky parked another stolen car. He left the vehicle but police located it and, when Mr Pelecky approached it, they attempted to arrest him but he sprinted away. A police officer finally took hold of him and informed him that he was under arrest. Mr Pelecky flailed his arm and pushed his body up in an attempt to escape. He was asked by two police officers to pull his left arm out from under his body on three occasions so that police could handcuff him, but he did not do so. He was finally handcuffed, but not before his actions caused abrasions, swelling and bruising to a police officer's leg. This failure to comply resulted in the charge of obstructing a territory official.
Mr Pelecky was then cautioned and questioned about whether he was carrying anything that he should not have had and he admitted that he had a knife, which was located in his backpack. Also, police located 21 live rounds of ammunition in his backpack, which he was not, and had never been, authorised to possess. He was in possession of a number of items that were identified as being stolen, namely a GoPro brand camera, a black wallet with a bank credit card, four sets of keys, a gold ring, 12 bags of vintage coins, and a Waterman fountain pen.
In the vehicle, police located other items also identified as being stolen, namely a Sony PlayStation, a bag containing five Australian miniature medals awarded to a person serving in the Royal Australian Navy during the Second World War, a laptop computer, an iPad, and three lanyards with sets of keys attached and a Department of Defence security pass that had been stolen from another car on 25 April 2020. I was not provided with any evidence as to the value of any of this stolen property, though clearly some of it had reasonable but moderate value. The medals also likely had considerable sentimental value. These facts led to Mr Pelecky being charged with possession of a knife without a reasonable excuse, possession of ammunition, and one count of unlawful possession of stolen property.
On 1 May 2020, Mr Pelecky was interviewed and made full admissions to most of the offences and was described as cooperative and forthcoming. He denied being involved in the burglary and trespass offences.
The Proceedings
After being interviewed and charged, Mr Pelecky appeared in the ACT Magistrates Court on 2 May 2020, though it is not clear on the material before me why he was not brought before the court on 1 May 2020. He was remanded in custody and the proceedings were adjourned. After another adjournment, he appeared on 9 June 2020 and three further charges were preferred. Five of the original charges were amended. On this date, despite not yet receiving a copy of the prosecution brief of evidence, Mr Pelecky entered a plea of guilty to each of the charges. The proceedings were further adjourned and he remained in custody.
On 13 August 2020, Mr Pelecky was committed for sentence to this Court in respect of the indictable offences. The summary offences were transferred to this Court under s 90B of the Magistrates Court Act 1930 (ACT), to be dealt with under Pt 8 of the Supreme Court Act 1933 (ACT). It was the expectation of the parties that he would be referred to the Drug and Alcohol Sentencing List for a Drug and Alcohol Treatment Order (a Treatment Order) under s 12A of the Sentencing Act.
Having been committed to this Court and having been found prima facie eligible for a Treatment Order, two Suitability Assessments were ordered. These reports referred to above (at [2]) were received and the proceedings were listed for sentence on 25 September 2020, though actually sentenced today, on 28 September 2020.
The Offences
There are, in all, 27 offences to which Mr Pelecky has pleaded guilty. Some of these offences are, of course, the separate commission of a crime already encompassed within the other offence.
Burglary is an offence contrary to s 311 of the Criminal Code 2002 (ACT) (the Criminal Code) and renders Mr Pelecky liable to a maximum penalty of 14 years imprisonment or a fine of $224,000, or both. Mr Pelecky is charged with one such offence.
Theft is an offence against s 308 of the Criminal Code and attracts a maximum penalty of 10 years imprisonment or a fine of $160,000, or both. Mr Pelecky faces one such charge.
Obtaining property by deception is prohibited by s 326 of the Criminal Code, which provides for a maximum penalty of 10 years imprisonment or a fine of $160,000 or both. Mr Pelecky is charged with two such offences.
Damaging Commonwealth property is made a crime by s 132.8A of the Criminal Code Act 1995 (Cth), which specifies a maximum penalty of 10 years imprisonment. Mr Pelecky is charged with two of those offences.
Dishonestly driving a motor vehicle without the owner's consent is made an offence by s 318(2) of the Criminal Code, which has legislated for a maximum penalty of five years imprisonment or a fine of $80,000, or both. Mr Pelecky has been charged with five such offences.
Aggravated dangerous driving is an offence contrary to s 7(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (the Road Safety Act) and makes Mr Pelecky liable, where he is a first offender, to a maximum penalty of three years imprisonment or a fine of $48,000, or both; and, where he is a repeat offender, to five years imprisonment or a fine of $80,000, or both. Mr Pelecky is charged with three of these offences, once as a first offender and two as a repeat offender. Although he will be convicted of all these offences at the same time, s 5AB(2)(b) of the Road Safety Act makes a person a repeat offender where he or she has committed an offence before the subject offence, even if the person is convicted of both offences on the same occasion.
Escaping arrest is an offence against s 160 of the Crimes Act 1900 (ACT), which provides for a maximum penalty of five years imprisonment or a fine of $1,600, or both. Mr Pelecky is charged with one such offence.
Failing to stop for police when directed by police as a repeat offender is prohibited by s 5C of the Road Safety Act, which provides for a maximum penalty of three years imprisonment or a fine of $48,000, or both, together with a disqualification from obtaining or holding a driver licence for at least 12 months. Mr Pelecky is a repeat offender because the offence was committed after he had committed an offence of aggravated dangerous driving, where a circumstance of aggravation was his failure to stop for police when directed. Mr Pelecky has pleaded guilty to two such offences.
Resisting a territory public official in the exercise of their duties is an offence against s 361 of the Criminal Code, which provides for a maximum penalty of two years imprisonment or a fine of $32,000, or both. Mr Pelecky is charged with one such offence.
The Legislature has made recklessly driving a motor vehicle an offence under s 7(1) of the Road Safety Act which specifies a maximum penalty of 12 months imprisonment or a fine of $1,600, or both, together with a disqualification from obtaining or holding a licence for at least 12 months. Mr Pelecky has been charged as a repeat offender, but I cannot see that he is such an offender; and, in any case, there is no special sentence applicable to such an offence.
Driving with a prescribed drug in oral fluid as a first offender has been made a crime under s 21 of the Road Transport (Alcohol and Drugs) Act 1999 (ACT) and is only punishable by a fine, being $1,600. Mr Pelecky is charged with one such offence.
Minor theft is an offence contrary to s 321 of the Criminal Code, which provides for a maximum penalty of six months imprisonment or a fine of $8,000, or both. Mr Pelecky faces two such charges.
Possessing a knife in a public place without reasonable excuse is prohibited by s 382(1) of the Crimes Act and attracts a maximum penalty of six months imprisonment or a fine of $1,600, or both. Mr Pelecky faces one such charge.
Possessing property reasonably suspected of being stolen is an offence contrary to s 324 of the Criminal Code and renders Mr Pelecky liable to imprisonment for six months or a fine of $8,000 or both. Mr Pelecky is charged with one such offence.
Failing to give the required particulars after having been in a motor vehicle crash is an offence against s 287 of the Road Transport (Road Rules) Regulation2017 (ACT) and attracts a maximum penalty of a fine of $3,200. Mr Pelecky faces one such charge.
Driving an unregistered motor vehicle is prohibited by s 18(1) of the Road Transport (Vehicle Registration) Act 1999 (ACT), which provides for a maximum penalty of a fine of $3,200. Mr Pelecky is charged with one such offence.
Possessing ammunition is made a crime under s 249(1) of the Firearms Act 1996 (ACT), for which a maximum penalty is a fine of $1,600. Mr Pelecky faces one such charge.
I do not propose to analyse the seriousness of each offence in any significant detail. Many were unremarkable versions of the offence with no features that particularly aggravated the offence.
I have considered the offence of burglary in many cases, such as in R v Bessant [2020] ACTSC 365 (at [16]). I accept what I there said. The present burglary offence is, however, a more serious version of the offence because it was committed on residential premises early in the morning, when the occupants were likely to be there. Indeed, they were not only there, but were also awoken. Nevertheless, there was no evidence of any damage being done on entering or while Mr Pelecky was in the premises. There does not seem to have been any particular motivation on the part of Mr Pelecky, or any evidence of premeditation or planning.
For many of the theft or related offences, the value of property is an important marker of seriousness. In most cases, this was not provided. Nevertheless, I can accept that in a number of cases there was some realistic value. The properties that were the subject of each of the minor theft charges was valued at a relatively small amount, being less than $100 in each case. The items of which Mr Pelecky had unlawful possession were mostly of a modest value, though some, such as the medals, would have had significant sentimental value, as I have mentioned at [15].
Further, dispossession of keys can cause great inconvenience to the owners. The electronic devices were of some, or perhaps, of more substantial, value. This was a rolled-up plea and, although the sentence will not be the same as the sentences that would have been otherwise imposed if the offences had been separately charged, they will be individually greater because of the fact of it being a rolled-up plea; see R v Forrest (No 2) [2017] ACTSC 83 (at [163]-[164]). Thus, they will have an effect on the length of the sentence and the degree of accumulation and concurrency: R v John [2017] ACTSC 144 (at [107]).
When Mr Pelecky resisted arrest by police officers, this was perhaps more serious because the uniformed officers were seeking to effect an arrest: R v Reid [2018] ACTSC 368 (at [10]). Here, a second officer was required to assist in restraining Mr Pelecky.
The charges of damaging Commonwealth property showed no particular features. The value of the damage can be important to assess the seriousness of the offence; see R v Carmody [2016] ACTSC 382 (at [69]). Here, there was no evidence of that, but the fact that the car damaged was rendered undriveable is relevant.
The offences of dishonestly driving without the owner's consent are similar to each other in many ways. This is an offence that I have considered in some detail in R v Massey (No 1) [2020] ACTSC 256 (at [54]-[59]). It is a serious offence where the motor vehicle has been driven for some distance, a factor clearly applicable in some cases here but not others. Similarly, as noted in Kelly v Ashby [2015] ACTSC 346; 73 MVR 360 (at 372; [92]), the manner of driving, here, mostly very badly, is relevant. This must be approached cautiously, however, for the manner of driving has in some instances been separately charged. Whether a vehicle has been recovered or not is relevant. Here, I have mostly no evidence about that and, without such evidence, I cannot find such an aggravating feature to a standard of beyond reasonable doubt. That there was, in one case, a collision and the vehicle was damaged is, of course, relevant as an aggravating factor.
Finally, the dangerous driving and reckless driving charges are all serious and in appropriate cases attract a serious sentence of imprisonment; see Kelly v Ashby (at 371; [86]). Some guidance as to the relevant factors has been articulated in relation to similar offences in New South Wales in R v Jurisic [1998] NSWSC 423; 45 NSWLR 209 at 231 and R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 (at 286; [216]-[217]). These principles have been adopted as appropriate in this Territory in R v Monfries (Supreme Court of the Australian Capital Territory, Nield AJ, 18 June 2013). Care must be taken in applying the New South Wales cases, however, for the offences there are more serious, requiring as elements death or grievous bodily harm, none of which was relevant here, and given that the maximum penalties for those offences are more serious than those found in this Territory.
Nevertheless, such driving is a serious matter because of the danger to which innocent members of the public are exposed, especially to the risks of death or serious harm. In this case, there was little evidence as to the number of people put at risk. In one case the speed was unknown, though it appears to be not insignificant, but not necessarily as high as in the other cases. In one case it was very significant. The manner of driving was generally dangerous, but not erratic, and was serious, though not necessarily because he drove through red traffic lights and mounted a median strip in one case, but because the driving was, in many cases, an act of fleeing to avoid police and had resulted in a pursuit, which was inherently dangerous. While Mr Pelecky failed to stop for police, this is, of course, an element of the offence. In at least this case, the evidence shows that Mr Pelecky put police and pedestrians at specific risk.
Mr Pelecky was, of course, on conditional liberty at the time (see R v Pelecky [2020] ACTSC 246). This is an aggravating factor, in part because it is a betrayal of the opportunity for rehabilitation, as explained in R v Pham (Supreme Court of the Australian Capital Territory, Higgins CJ, 14 May 2012). It must, however, not lead to Mr Pelecky being punished twice for the original offences: Kelly v Ashby (at 364-5; [38]).
Victim Impact Statements
Victim Impact Statements are important as a means for victims to take a respectful and recognised place in the criminal justice system as more than mere witnesses and to have their voices heard. While these statements cannot of themselves provide a basis for increasing the penalty to be imposed on an offender, they give the court a better understanding of the harm caused by an offence. Courts can be accepted to have a general understanding of that harm, but there are two particular advantages. First, it brings clearly to the court's attention that harm and its often long term effects, and secondly, it can identify any particular, especially unexpected, harm that can help the court understand the seriousness of the offence.
The three Victim Impact Statements, all from the occupants of the premises where Mr Pelecky committed a burglary, were before me. I read them carefully. They did disclose some unusual harm.
The male occupant is a teacher and the psychological distress caused by the home invasion that a burglary represented meant that he was unable to refresh himself adequately for the next term's teaching and he found that he was unable to prepare lessons in a way that he previously had, and which he needed to for the approximately 100 students he was required to teach. He did refer to the value of some items he said were stolen, but I could not take account of that for there was no charge for them.
A female occupant wrote eloquently of the effect that the trespass had on her, which she lives with every day. She was, as many victims are, hopeful that Mr Pelecky would get help to appreciate the nature of his crime but also, ‘to believe in himself and make good choices’ and ‘become a better man’. Again, she referred to items stolen that were not the subject of a charge.
A son, whose motor vehicle was stolen, also provided a Statement. The vehicle was the first he had owned and losing it was costly, as he had to purchase a new one. He pointed out that the vehicle contained items of value to him which he also lost, and he wrote of the sense of vulnerability and violation that such invasion of his home had caused.
Subjective Circumstances
Mr Pelecky was born nearly 20 years ago in Adelaide, but, at a young age, moved with his parents to Canberra. He has one brother aged 16 years. Their parents separated when he was 16 years old and Mr Pelecky spent time with both of them. He experienced some very unsettling events around this time, some of which he attributed to the effects of this separation. He broke up with his girlfriend, which he attributed, in particular, to the effects of the separation.
Separately, he witnessed the death of a friend in a motor vehicle accident. This is rather ironic, given his continued and reckless behaviour in driving, which could well have caused such deaths. Nevertheless, the events led him to increasing his use of drugs. He had started drinking alcohol at age 14 and this included binge drinking. A breakup with his girlfriend led to him drinking for three to four weeks straight, consuming between 6 and 12 full strength beers a day. He has, however, reduced his alcohol use considerably this year.
He started consuming cannabis when he was 12 years old, leading to regular use by the time he was 15. A year later, he ceased using cannabis, other than occasionally to help him sleep, but started using methamphetamine. This quickly escalated to daily use. It was his primary drug of choice, though he did experiment with other illicit substances. By the time he was arrested on these charges, he was using 1.5 grams of methamphetamine a day and had been doing so for at least two months before that.
Mr Pelecky lived with his father until earlier this year, after which he began couch surfing. His parents, however, remain supportive, and would allow him to return to reside with either of them, but only if he undergoes a program of residential drug rehabilitation and brings his drug use under control.
Mr Pelecky has had about 10 casual jobs since leaving school prior to the end of Year 10. He has, however, completed a Certificate III in Business and seeks to extend that to a Bachelor’s degree.
Most of Mr Pelecky's associates are involved in the drug scene, though he has some friends from the time he was playing organised sport, especially basketball. These friendships may be difficult to re-establish.
Mr Pelecky is in good physical health, despite his drug use, but he has been diagnosed with depression, for which he has been prescribed medication. The witnessing of his friend's death in the car accident may have left him with some post-traumatic stress, though he has had no formal diagnosis of it. He was, however, diagnosed with Attention Deficit and Hyperactivity Disorder and Autism Spectrum Disorder in 2016 or 2017. He has previously engaged with counsellors, although his attendance has been inconsistent.
Mr Pelecky [redacted for legal reasons] has built up a depressing record [redacted for legal reasons]. [Redacted for legal reasons]. He has, however, shown an early propensity to dishonesty and a fascination for the misuse of motor vehicles. [Redacted for legal reasons].
Consideration
A sentencer addressing the always challenging task of sentencing an offender, especially a youthful offender, must have regard to the purposes for which a sentence is to be imposed, as set out in s 7 of the Sentencing Act. While punishment proportionate to the crimes he has committed is appropriate, the predations on the community, as well as the danger he has put to members of the community, mean that general deterrence is also appropriate, though moderated by his relative youth, where rehabilitation is perhaps more important. Indeed, the Federal Court endorsed in R v Hebditch [1999] FCA 1087 the observations of Sir Anthony Mason J:
I am not alone in thinking that effort put into rehabilitation rather than retribution and deterrence is more likely to be cost effective and lead to a better world.
See, to much the same effect, the comments of French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 537; [32]. I have also had careful regard to what the Federal Court said in R v Blaskovic [1999] FCA 1306 at [7], [31] and [59].
The circumstances under which Mr Pelecky came to drug use, especially the fact that he began using at a relatively early age, is also relevant to the sentence that must be imposed (see R v Henry and Others [1999] NSWCCA 111; 46 NSWLR 346 at 398; [273]). Thus, age, traumatic events, intellectual challenges and mental health are all relevant in assessing the nature of Mr Pelecky's introduction to drug use, which is, of course, an addictive habit and is difficult to manage without considerable and sustained effort and assistance.
An important matter in this case is Mr Pelecky's response to the charges. Despite seeking to avoid arrest, both by escaping from custody, resisting arrest and driving off on a number of occasions when police attempted to stop him, Mr Pelecky did make full admissions when he was finally arrested. This attitude was continued when he pleaded guilty to all offences at a very early stage and before the prosecution brief of evidence had been provided to him. This justifies a significant discount on the sentences to be imposed.
The course of conduct over a 13-day period was a substantial commission of offending; much of it constituted a blatant disregard of the road rules and was a risk to public safety. There were also some identifiable victims, from some of whom I have heard. A number of the charges require disqualification of Mr Pelecky from obtaining or holding a driver licence. These are automatic disqualifications for a minimum period, though the court may increase it. Section 69 of the Road Transport (General) Act 1999 (ACT) requires that such disqualifications are cumulative, ‘unless a court otherwise orders’. In Smith v Stivala [2018] ACTSC 309, this Court held that multiple disqualifications of the kind that I must impose must be served cumulatively. I have not heard submissions on this issue and, while having some reservations about the reasoning that led to that finding, I do not propose to depart from that decision without further argument.
Finally, there are many offences for which Mr Pelecky is to be sentenced. This is a complex exercise. I must first set out an appropriate sentence for each offence (Pearce v The Queen [1998] HCA 57; 194 CLR 610 at 623-4; [45]). I must then review the length of each sentence to ensure that, where there are common or overlapping elements of the offence, Mr Pelecky is not punished twice. Thus, for example, where the dangerous driving charges are aggravated by a failure to stop when directed by police or speeding, a separate offence to that effect should be concurrent with the sentence of aggravated dangerous driving. Similarly, the theft committed during a burglary is usually, in this Court, visited with a concurrent sentence unless, as here, the stolen property has a particularly significant monetary or sentimental value.
I have also considered whether the sentences should be partly or wholly concurrent because the offences are part of the same enterprise or not. Because of the number of offences, however, and the complexity of respecting the principles of concurrency and cumulation, and of totality, I have decided that it is appropriate to impose sentences on the more serious offences on each relevant day to ensure that, where the offences are appropriately related, the sentences are not increased disproportionately but will adequately represent the criminality of that day. It will then be appropriate to make the other sentences concurrent. See, as an example of that approach in this Court, R v Crawford (No 1) [2020] ACTSC 245.
Sentence
His Honour then spoke directly to the accused:
Mr Pelecky, please stand.
I convict you of aggravated dangerous driving on 18 April 2020. I sentence you to nine months imprisonment to commence on 29 April 2020 to take account of pre-sentence custody. Had you not pleaded guilty, I would have sentenced you to 11 months imprisonment.
I convict you of driving an unregistered motor vehicle on that day. I fine you $200.
I convict you of dishonestly driving a motor vehicle without the owner's consent between 2 and 5 December 2019. I sentence you to six months imprisonment to commence on 28 November 2020. That is to be cumulative as to four months on the sentence for aggravated dangerous driving. Had you not pleaded guilty, I would have sentenced you to eight months imprisonment.
I convict you of minor theft on 19 April 2020. I sentence you to a fine of $300.
I convict you of dishonestly driving a motor vehicle without the owner's consent on 20 April 2020. I sentence you to eight months imprisonment to commence on 28 December 2020. That is to be cumulative as to three months on the sentence for dishonestly driving in December 2019. Had you not pleaded guilty, I would have sentenced you to 10 months imprisonment.
I convict you of driving with a prescribed drug in your oral fluid on 20 April 2020. I fine you $250.
I convict you of leaving the scene of a crash without reporting your prescribed particulars on 20 April 2020. I fine you $250.
I convict you of escaping arrest on 22 April 2020. I sentence you to three months imprisonment to commence on 29 June 2021. That is to be cumulative as to one month on the sentence for dishonestly driving on 20 April 2020. Had you not pleaded guilty, I would have sentenced you to four months imprisonment.
I convict you of burglary on 23 April 2020. I sentence you to 14 months imprisonment to commence on 28 April 2021. That is to be cumulative as to eight months on the sentence for escaping arrest. Had you not pleaded guilty, I would have sentenced you to 18 months imprisonment.
I convict you of theft of the motor vehicle on 28 April 2020. I sentence you to six months imprisonment to commence on 28 April 2021. That is to be wholly concurrent with the sentence for burglary. Had you not pleaded guilty, I would have sentenced you to eight months imprisonment.
I convict of the first offence of obtaining property by deception on 23 April 2020. I sentence you to a fine of $300.
I convict you of the second offence of obtaining property by deception on 23 April 2020 and I fine you $300.
I convict you of recklessly driving on 25 April 2020. I sentence you to six months imprisonment to commence on 29 December 2021, to be cumulative as to one month on the sentence for burglary. Had you not pleaded guilty, I would have sentenced you to eight months imprisonment.
I convict you of aggravated dangerous driving as a repeat offender on 25 April 2020. I sentence you to 14 months imprisonment to commence on 29 October 2021, to be cumulative as to five months on the sentence of recklessly driving. Had you not pleaded guilty, I would have sentenced you to 18 months imprisonment.
I convict you of property damage on 25 April 2020. I sentence you to two months imprisonment to commence on 29 October 2021. That is to be wholly concurrent on the sentence for aggravated dangerous driving as a repeat offender. Had you not pleaded guilty, I would have sentenced you to three months imprisonment.
I convict you of property damage also on 25 April 2020. I sentence you to two months imprisonment to commence on 29 October 2021. That is to be wholly concurrent on the sentence for aggravated dangerous driving as a repeat offender. Had you not pleaded guilty, I would have sentenced you to three months imprisonment.
I convict you of dishonestly driving a motor vehicle without the owner's consent on 27 April 2020. I sentence you to nine months imprisonment to commence on 29 June 2022. That is to be cumulative as to four months on the sentence for aggravated dangerous driving as a repeat offender on 25 April 2020. Had you not pleaded guilty, I would have sentenced you to 12 months imprisonment.
I convict you of failing to stop when directed by police as a repeat offender on 27 April 2020. I sentence you to two months imprisonment to commence on 29 June 2022. That is to be wholly concurrent with the sentence on dishonestly driving a motor vehicle without the owner's consent. Had you not pleaded guilty, I would have sentenced you to three months imprisonment.
I convict you of dishonestly driving a motor vehicle without the owner’s consent on 28 April 2020 and sentence you to nine months imprisonment to commence on 29 September 2022, cumulative as to three months on dishonestly driving a motor vehicle without the owner's consent on 27 April 2020.
I convict you of aggravated dangerous driving as a repeat offender on 30 April 2020. I sentence you to 14 months imprisonment to commence on 28 September 2022. That is to be cumulative as to five months on the sentence for dishonestly driving a motor vehicle without the owner's consent on 28 April 2020. Had you not pleaded guilty, I would have sentenced you to 18 months imprisonment.
I convict you of failing to stop when directed by police on 30 April 2020. I sentence you to two months imprisonment to commence on 28 September 2022. That is to be wholly concurrent on the sentence for aggravated dangerous driving as a repeat offender. Had you not pleaded guilty, I would have sentenced you to three months imprisonment.
I convict you of minor theft on 30 April 2020. I sentence you to a fine of $300.
I convict you of dishonestly driving a motor vehicle without the owner's consent on 30 April 2020. I sentence you to nine months imprisonment to commence on 29 May 2023. That is to be cumulative as to three months on the sentence for aggravated dangerous driving as a repeat offender on 30 April 2020. Had you not pleaded guilty, I would have sentenced you to 12 months imprisonment.
I convict you of resisting a territory official in the execution of their duties on 30 April 2020. I sentence you to two months imprisonment to commence on 29 January 2024. That is to be cumulative as to one month on the sentence for dishonestly driving a motor vehicle without the owner's consent on 30 April 2020.
I convict you of possessing ammunition and I fine you $300.
I convict you of possessing a knife without a reasonable excuse and I fine you $300.
I convict you of unlawful possession of goods reasonably expected to be stolen. I sentence you to eight months imprisonment to commence on 28 August 2023. That is to be cumulative as to one month on the sentence for resisting a territory official. Had you not pleaded guilty, I would have sentenced you to 10 months imprisonment.
In relation to the fines that I have imposed, I will give Mr Pelecky 12 months to pay.
On the offence of aggravated dangerous driving as a first offender on 18 April 2020. I disqualify you from obtaining or holding a driver licence for three months.
On the charge of aggravated dangerous driving as a repeat offender on 25 April 2020, I disqualify you from obtaining or holding a driver licence for 12 months.
On the charge of failing to stop for police on 27 April 2020, I disqualify you from obtaining or holding a driver licence for 12 months.
On the charge of failing to stop for police on 30 April 2020, I disqualify you from obtaining or holding a driver licence for 12 months.
For the charge of driving with a prescribed drug in your oral fluid, I disqualify you from obtaining or holding a driver licence for the minimum period of six months.
For the offence of recklessly driving as a repeat offender on 25 April 2020, I disqualify you from obtaining or holding a driver licence for 12 months.
Mr Pelecky, you may be seated.
That is a total sentence of four years. Since Mr Pelecky has been found otherwise eligible for a Treatment Order, the total sentence period is within the term of imprisonment for which such an order is permissible. I note further that he is not subject to any other sentencing order. Accordingly, it is appropriate for me to consider whether I should make such an order.
I have carefully read and considered the helpful and comprehensive Suitability Assessments prepared by officers of ACT Corrective Services and Alcohol and Drug Services referred to above (at [2]). I have, in particular, carefully considered the recommendations made in them, especially that he is suitable for a Treatment Order, particularly if he is admitted to a residential drug rehabilitation facility. I am satisfied that Mr Pelecky is dependent on illicit drugs and that his dependency substantially contributed to the commission of the aggravated dangerous driving on 18 April 2020, and indeed all the other offences. I am also satisfied that, if he undertakes residential drug rehabilitation, Mr Pelecky will live in the ACT for the next 12 months.
I have not identified any indicators of unsuitability for a Treatment Order set out in Table 46K of the Sentencing Act. I note that Mr Pelecky has served a period in custody prior to today and that I have taken that into account in the sentencing. That does not prevent him from participating in a Treatment Order, despite the requirement that a Treatment Order be only made where a sentence of imprisonment is wholly suspended. I explained the reasoning for that in R v Crawford (No 1) at [91]-[111], and I follow that reasoning.
I note also that despite the requirement to suspend the sentence of imprisonment today and the requirement in s 12(3) of the Sentencing Act that I must make a Good Behaviour Order for the length of the period for which the sentence is suspended or longer, it appears that one of the provisions relating to Treatment Orders overrides that provision and requires that the Good Behaviour Order begin on the day after the end of the Treatment Order, and not concurrently, and that the Good Behaviour Order must end on the day on which the custodial part of the total sentence ends (see s 80ZA of the Sentencing Act).
Drug and Alcohol Treatment Order
His Honour spoke directly to the accused again:
Mr Pelecky, please stand.
I make a Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) in respect of Patrik Pelecky for 12 months from today for the primary offence of aggravated dangerous driving as a first offender on 18 April 2020, for which I have convicted and sentenced you today.
I extend that Order to all the other 17 offences for which I have convicted you and sentenced you to imprisonment today as associated offences.
I note that I have recorded convictions for the primary offence and associated offences and imposed sentences, which convictions and sentences are hereby incorporated into the Drug and Alcohol Treatment Order.
I suspend the sentence of four years, being the total of the sentences for the primary offence and associated sentences, for a period of 12 months from today under s 80W of the Crimes (Sentencing) Act 2005 (ACT).
I require you to sign an undertaking to comply with the offender's Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years and two months from 29 September 2021 and to end on 28 April 2024, with a probation condition that you accept supervision from the Commissioner of ACT Corrective Services or his delegate for two years and two months, or such lesser period as the person supervising you considers appropriate, and obey all reasonable directions of the person supervising you, including as to counselling or further treatment.
For the treatment and supervision part of the Drug and Alcohol Treatment Order, I order that you travel immediately to Canberra Recovery Services at Fyshwick, ACT and admit yourself to the program of residential drug rehabilitation there and remain in the program for the duration of the program and obey all the rules of the facility and of the program.
I direct that should you leave the facility without the authority of the court, or prior to the completion of the program, you present yourself to ACT Corrective Services by 4:00 pm on the next business day.
I order that you comply with any requirements as to treatment or counselling, urinalysis, case management or other attendances required by any member of the Treatment Order Team, and I order that you comply with the directions of the court about attendance in court, whether in person or by electronic means, and also about any other treatment or supervision that you may be required to undergo from time to time.
I require you to attend court, either in person or electronically, on 2 October 2020.
Mr Pelecky, that is a whole lot of words and I do not expect you to have taken it all in. But the upshot is that I have sentenced you to four years imprisonment. That is a generous sentence because of your youth and your commitment to rehabilitation.
Mr Pelecky, in relation to the fines I have imposed, I should just say that you should not leave it until the end of that period. You should try and make some payment along the way. It is not an inconsiderable amount, but it may be that at the end of that time there can be some arrangements made about community service, or something like that, and your solicitor will be able to advise you about those opportunities.
While you have a serious criminal history, now is a time in which you might be able to nip that in the bud if you are committed to that, and I hope you are.
It will not be easy and it will be a long, hard road because drug addiction is a vicious and trapping disease, and you will have to work hard at it if you are to learn how to effectively manage it. You also do not have a lot of background in employment and education. But you have indicated that you want to extend your education, and you will only do that effectively if you can get this drug addiction and this criminality under control. I have given you the opportunity to participate in a Drug and Alcohol Treatment Order, which hopefully will enable you to manage your drug addiction.
You will never cease to be a drug addict, but you can manage your drug addiction. A lot of people live very successful and fulfilling lives for the remainder of their time, notwithstanding that difficulty. This Court will assist you if it can and it will encourage you, certainly if you make good efforts. On the other hand, if you do not attempt to make a good effort, then this Court will have to sanction you and ultimately, if you do not take this opportunity properly, it will send you back to prison to serve out the balance of the whole of the term to which I have sentenced you.
In addition, the Court recognises that difficulties arise from time to time. The most important thing is not to fall back on the instincts that you clearly showed when you had interactions with the police and had run away. Come back to Court. Come back to Corrective Services, tell them that you are having difficulties. The Court will listen carefully and do what it can. I do not say that there will be a possibility for you not to go to prison every time. If all else fails, if there is nothing else we can do for it, that might be the only way that we can resolve it.
But I tell you, one thing is absolutely certain, and I rarely make guarantees, but on this I think I can guarantee. If you face up to your obligations and say, ‘This is too hard, I can't do it’ or ‘I need to do something else’ or ‘I'm having problems’, then we will try and solve it. But if you run away from it, we will send you back to prison. Do you understand that? You will see a lot more of me in the months to come if you take this opportunity to its fullest extent and put your shoulder to the wheel and work hard on it. We will try and work through this together and get to a good result, but you have got to do your part too. I wish you well. You may be seated.
| I certify that the preceding one hundred and twenty-three [123] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge. Associate: Samuel Xiang Date: 2 June 2021 |
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