R v Po'oi (No 6); Director of Public Prosecutions v Po'oi
[2024] ACTSC 6
•4 January 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Po’oi (No 6) DPP v Po’oi |
Citation: | [2024] ACTSC 6 |
Hearing Date: | 5 December 2023 |
Decision Date: | 4 January 2024 |
Before: | Refshauge AJ |
Decision: | (1) The conviction of Daniel Ronald Po’oi of aggravated burglary (CAN 5762/2020) be confirmed and the sentence of 24 months of imprisonment be imposed to commence on 15 September 2021 and expire on 14 September 2023. (2) The conviction of Daniel Ronald Po’oi of burglary (CAN 4460/2020) be confirmed and the sentence of 14 months of imprisonment be imposed to commence on 15 April 2024 and expire on 14 June 2024. (3) The conviction of Daniel Ronald Po’oi of dishonestly take motor vehicle without consent on 2 March 2020 (CAN 9704/2020) be confirmed and the sentence of 9 months of imprisonment be imposed to commence on 15 December 2023 and expire on 14 September 2024. (4) The conviction of Daniel Ronald Po’oi of dishonestly take motor vehicle without consent between 2 and 3 April 2020 (CAN 4462/2020) be confirmed and the sentence of 6 months of imprisonment be imposed to commence on 15 June 2024 and expire on 14 December 2024. (5) The conviction of Daniel Ronald Po’oi of possess knife without reasonable excuse (CAN 2723/2020) be confirmed and the sentence of 1 month of imprisonment be imposed to commence on 15 December 2024 and expire on 14 January 2025. (6) Daniel Ronald Po’oi be convicted of take motor vehicle without authority (CAN 11703/2021) and sentenced to 11 months of imprisonment to commence on 15 November 2024 and expire on 14 October 2025. (7) Daniel Ronald Po’oi be convicted of damage property (CAN 11706/2021) and sentenced to 1 month of imprisonment to commence on 15 October 2025 and expire on 14 November 2025. (8) Daniel Ronald Po’oi be convicted of dishonestly ride motor vehicle without consent (CAN 1585/2022) and sentenced to 5 months of imprisonment to commence on 15 September 2025 and expire on 14 February 2026. (9) Daniel Ronald Po’oi be convicted of dishonestly drive motor vehicle without consent (CAN 7876/2022) and sentenced to 9 months of imprisonment to commence on 15 January 2026 and expire on 14 October 2026. (10) Daniel Ronald Po’oi be convicted of aggravated dangerous driving (CAN 7880/2022) and sentenced to 9 months of imprisonment to commence on 15 July 2026 and expire on 14 April 2027, and that he be disqualified from driving for 3 months from 24 October 2023. (11) Daniel Ronald Po’oi be convicted of driving as an unlicensed driver on 12 August 2022 (CAN 7879/2022) and be fined for $400.00 with 12 months to pay from 4 January 2024. (12) Daniel Ronald Po’oi be convicted of driving as an unlicensed driver on 8 December 2021 (CAN 11704/2021) and be fined for $400.00 with 12 months to pay from 4 January 2024. (13) Daniel Ronald Po’oi be convicted of failing to stop motor vehicle for police (CAN 11705/2021) and be sentenced to 4 months of imprisonment to commence on 15 February 2027 and expire on 14 June 2027, and that he be disqualified from driving for 3 months from 24 October 2023. (14) Daniel Ronald Po’oi be sentenced of driving with drug in oral fluid (CAN 11707/2021) and be sentenced to 1 month of imprisonment to commence on 15 June 2027 and expire on 14 July 2027, and that he be disqualified from driving for 12 months from 24 October 2023. (15) The sentence of 70 months be suspended from 4 January 2024 until 14 July 2027. (16) Daniel Ronald Po’oi be required to sign an undertaking to comply with the offender’s good behaviour obligations under section 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from 4 January 2024 to 14 July 2027 with a probation condition that he accept the supervision of the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him consider appropriate and obey all reasonable directions of the person supervising him. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Taking Motor Vehicle without Consent – Damaging Property – Dishonesty Driving and Riding in a Motor Vehicle Without Consent – Aggravated Dangerous Driving - Driving while Unlicenced – Failing to Stop for Police – Driving with Drugs in Oral Fluid - Resentence on Cancellation of Drug and Alcohol Treatment Order – Imprisonment – Suspended Sentence – Continued Rehabilitation in the Community |
Legislation Cited: | Sentencing Act 1991 (Vic) s 5 Crimes (Sentencing) Act 2005 (ACT) Pt 4.3, Pt 4.4, ss 7, 33, 35, 63, 80ZB, 80ZE Criminal Code 2002 (ACT) ss 80, 318, 403 Road Transport (Alcohol and Drugs) Act 1977 (ACT) s 20 Road Transport (Driver Licensing) Act 1977 (ACT) s 31 Road Transport (General) Act 1999 (ACT) s 69 Road Transport (Safety and Traffic Management) Act 1999 (ACT) ss 5C, 7, 7A |
Cases Cited: | Barbaro v The Queen [2011] VSCA 288; 226 A Crim R 35 Boney v The Queen [2015] NSWCCA 291 DPP v Dalgleish (a pseudonym) [2017] HCA 41; 262 CLR 428 Douglas v The Queen (1995) 56 FCR 465 Eaglen v Hayward [2023] ACTSC 304 Elias v The Queen [2013] HCA 31; 248 CLR 483 Griffiths v The Queen (1977) 137 CLR 293 Hili v The Queen [2010] HCA 45; 242 CLR 520 Hogan v Hinch [2011] HCA 4; 243 CLR 506 House v The King (1936) 55 CLR 499 Lacey v Attorney-General (Qld) [2011] HCA 10; 242 CLR 573 Lowe v The Queen (1984) 154 CLR 606 Mann v Tremethick (No 2) [2023] ACTSC 31 R v Carney [2013] ACTSC 266 R v Collins [2019] ACTSC 302 R v Connors [2022] ACTSC 324 R v Crawford (a pseudonym) [2022] ACTSC 166 R v DK [2016] ACTCA 7 R v Dowling (No 2) [2021] ACTSC 200 R v Elphick (No 2) [2015] ACTSC 23 R v Gardner (No 3) [2023] ACTSC 229 R v Goolagong (No 2) [2021] ACTSC 131 R v Gordon (1994) 21 A Crim R 459 R v Guy [2022] ACTSC 323 R v Hancock (No 3) [2022] ACTSC 232 R v Henry [1999] NSWCCA 111; 40 NSWLR 346 R v Hodge [2011] ACTSC 15 R v JM [2014] ACTSC 380 R v Kelly [2021] ACTSC 143; 16 ACTLR 81 R v Law [2021] ACTSC 351 R v Loeschnauer [2022] ACTSC 30; 98 MVR 484 R v Massey (No 1) [2020] ACTSC 256 R v Massey [2022] ACTSC 3 R v Ngerengere(No 3) [2016] ACTSC 299 R v Pham [2015] HCA 10; 256 CLR 550 R v Po'oi [2021] ACTSC 151 R v Po'oi (No 2) [2021] ACTSC 340 R v Po'oi (No 3) [2021] ACTSC 354 R v Po'oi (No 4) [2022] ACTSC 198 R v Po’oi (No 5) [2023] ACTSC 413 R v Porter (No 3) [2022] ACTSC 236 R v Ridley [2014] ACTSC 382 R v Rosewarne [2021] ACTSC 217 R v Seymour [2021] ACTSC 152 R v Subasic (No 2) [2023] ACTSC 79 R v Swift [2007] VSCA 52; 15 VR 497 R v Tonna (No 2) [2020] ACTSC 362 R v Ware [2016] ACTSC 264 R v Weldon [2021] ACTSC 348 R v Williams [2017] ACTSC 29 Saga v Reidand Collett [2010] ACTSC 59 SBT v Wright [2021] ACTSC 322 Wong v The Queen [2001] HCA 64; 7 CLR 584 |
Parties: | Director of Public Prosecutions ( Crown) Daniel Ronald Po’oi ( Offender) |
Representation: | Counsel S Bargwanna ( Crown) C Duffy ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Number: | SCC 275-277 of 2020 SCC 309-310 of 2021 SCC 79-80 of 2023 |
REFSHAUGE AJ:
Introduction
1․Daniel Ronald Po'oi appears before the Court for sentencing in a somewhat complicated series of offences committed in varying relevant circumstances.
2․As noted in R v Massey [2022] ACTSC 3 at [1], the sentencing task of a Court is a difficult one, perhaps the most difficult of all judicial tasks. One reason for that difficulty is of the challenge of sitting in judgment on a fellow human being where, as in sentencing, this is such a personal task. The factor that must not be forgotten, amid the equally important obligations that the Sentencing Court owes to the community, is that the offending crimes have breached the norms of behaviour of the community, often seriously. Such norms are so important for a peaceful society in which its members can flourish and achieve their potential and their life's aims. In addition, however, the law of sentencing imposes challenging duties on the Sentencing Court.
3․Those obligations are set out in the principles of sentencing with which the Court, sentencing an offender, must comply. In Australia, and most common law countries, this requires the Court to administer individualised justice: see Elias v The Queen [2013] HCA 31; 248 CLR 483 at 494-5 [27]. This gives the Court a very wide discretion: House v The King (1936) 55 CLR 499 at 503. It must, of course, be exercised judicially.
4․Thus, the Court is obliged to have regard to the facts of the offending, the actual offence committed and the personal circumstances of the offender. These matters must then be fashioned, applying to the principles of sentencing, into a single sentence as described by the High Court in Wong v The Queen [2001] HCA 64; 207 CLR 584 at 617 [77], so as to ‘distil an answer which reflects human behaviour in time or monetary units of punishment’ (at 611 [25]). This is explained in that case as the ‘instinctive synthesis’ of sentencing.
5․In this, the Court is, of course, assisted by the principles established by the common law, but with significant caveats. Thus, no other sentence is a precedent: Lacey v Attorney-General (Qld) [2011] HCA 10; 242 CLR 573 at 596 [55]. Further, there are no correct sentences: R v Pham [2015] HCA 10; 256 CLR 550 at 568 [56]. Thus, the Court still has discretion as described above (at [3]).
6․Having said all that, however, the Court must also deliver fairness and a key part of fairness is consistency. As the High Court said in Lowe v The Queen (1984) 154 CLR 606 at 610:
Consistency in the punishment of offences against the criminal law is "a reflection of the notion of equal justice" and "is a fundamental element of any rational and fair system of criminal justice". It finds expression in the “parity principle” which requires that like offenders should be treated in a like manner. As with the norm of “equal justice”, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances. (Footnote omitted)
7․The High Court has addressed the challenges of this in DPP v Dalgleish (a pseudonym) [2017] HCA 41; 262 CLR 428 at 444-5 [49]-[50] where it said:
In Elias v The Queen, French CJ, Hayne, Kiefel Bell and Keane JJ said, 'The administration of the criminal law involves individualised justice'. The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned to do justice in the case. It is also the case that, as Gleeson CJ said in Wong v The Queen, ‘The administration of criminal justice works as a system. It should be systematically fair, and that involves, amongst other things, reasonable consistency’. As was explained by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell in Hili v The Queen, “[t]he consistency that is sought is consistency in the application of the relevant legal principles”.
Section 5(2)(b) of the Sentencing Act informs the process of instinctive synthesis as a statutory expression of the concern that a reasonable consistency in sentencing should be maintained as an aspect of the rule of law. Reasonable consistency in the application of the relevant legal principles does not, however, require adherence to a range of sentences that is demonstrably contrary to principle. (Footnote omitted)
8․The reference to s 5(2)(b) is to the Sentencing Act 1991 (Vic), being the provision which requires the Court sentencing an offender to have regard to current sentencing practice. This has a counterpart in s 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) which applies here.
9․In this case, the sentencing exercise is even more complicated because of the history of Mr Po'oi's engagement with the Court. He now appears for sentence following the cancellation of a Drug and Alcohol Treatment Order (Treatment Order), made under s 12A of the Sentencing Act, and for nine further offences.
Background
10․Much of the background to this complex matter has been set out in earlier decisions (R v Po'oi [2021] ACTSC 151; R v Po'oi (No 2) [2021] ACTSC 340; R v Po'oi (No 3) [2021] ACTSC 354; R v Po'oi (No 4) [2022] ACTSC 198; and R v Po’oi (No 5) [2023] ACTSC 413). There is no requirement to rehearse all that was said in those cases.
11․It is important, however, to summarise the relevant background to show the basis for the decision now to be made.
12․Mr Po'oi was said to have had a stable home life, though more recently some qualification to that has become apparent. He did have some mental challenges and his parents also had some problems leading to a degree of physical violence as a means of disciplining him. It has also been revealed that, as a 14‑year-old, he suffered a serious assault which left him with further mental challenges.
13․He was introduced to drugs at an early age, alcohol and cannabis at age 12, heroin at age 13, becoming daily use by the age of 15 or 16 years old, and methamphetamine at age 19 years old, becoming a regular user at age 26 years old. Unsurprisingly, he has a bad criminal record. [redacted]
14․As an adult, he has been convicted of 32 offences, a number of them serious offences such as aggravated robbery, aggravated burglary, burglary, intentionally inflicting grievous bodily harm and receiving stolen property. His first custodial sentence was imposed in 2006 and since about 2011 he has spent all but about between 18 and 20 months in custody.
15․He has engaged in some drug rehabilitation. Thus, after a period in custody, he underwent detoxification at a clinic in Orange, New South Wales, and then entered Lyndon House, a residential drug rehabilitation facility at Canowindra, New South Wales. He only stayed for 50 days. In 2006, he spent seven days at The Glen Centre at Chittaway Point, New South Wales, also a residential drug rehabilitation facility. He transitioned for a period to its halfway house. He has had some counselling with the Karralika Therapeutic Community and Directions Health Services in Canberra.
16․Unfortunately, he was not able to translate this success into the community and, while on parole, he committed a number of further offences. On 20 November 2019, about four or five months after his release on parole, he was charged with driving with a prescribed drug in his oral fluid. He was later charged with failing to stop when directed by police, and, on 25 February 2020, was arrested for an offence of possessing a knife without a reasonable excuse. He was granted bail.
17․He had at that time also committed an aggravated burglary, but he was not charged with this until 18 April 2020. Later, on 2 April 2020, he committed a further burglary, dishonestly took a motor vehicle without consent and drove it away, also without consent. The details of these offences are set out in R v Po'oi at [10]-[28]. He was charged with these offences also on 18 April 2020, and was remanded in custody. His parole, however, was cancelled from 21 April 2020 and he served the balance of the sentence till 31 December 2020.
18․In July 2020, while in custody, he attended the Solaris Therapeutic Community conducted in the Alexander Maconochie Centre by Karralika Programs Incorporated as described in R v JM [2014] ACTSC 380 at [26]. He graduated on 30 November 2020 and was reported to have 'participated at a level above and beyond what is expected'. He expressed remorse towards his victims and sought longer term rehabilitation.
19․On 8 February 2021 he was sentenced for the further offences, though the 2019 offences were taken into account as additional offences under Pt 4.4 of the Sentencing Act. He was sentenced to three years and three months imprisonment to commence forty-six days prior to sentence, to take into account presentence custody other than that constituted by the sentence he was then serving consequent upon the cancellation of his parole. A Treatment Order was made. It required him to engage in the residential drug rehabilitation program conducted by Canberra Recovery Services, a drug rehabilitation facility conducted by the Salvation Army and described in R v Ngerengere(No 3) [2016] ACTSC 299 at [20].
20․Initially, the reports of his progress were positive. He did, however, leave the facility on 15 March 2021 in circumstances set out in R v Po'oi (No 2) at [12]. He complied with the direction to return to Court, however, and was permitted to continue his rehabilitation in the community. Initially this did progress well.
21․In April and May 2021, however, he returned positive results for drugs on drug testing and was remanded in custody. He used heroin while in custody. It was accepted that he would not be able to rehabilitate in the community. He had, however, not committed any further offences other than those that may be associated with the use of drugs.
22․Accordingly, the custodial part of the Treatment Order was provisionally suspended under s 80ZB(1)(e) of the Sentencing Act, and Mr Po'oi was remanded in custody. On 4 August 2021, the Treatment Order was cancelled and Mr Po'oi was remanded in custody: R v Po'oi (No 3). He had sought to be enrolled again in the Solaris Therapeutic Community program while awaiting the cancellation hearing. As the program would complete on 1 November 2021, he was remanded until 5 November 2021.
23․Under s 80ZE of the Sentencing Act, the Court must, when cancelling a Treatment Order for unsatisfactory circumstances, either impose the sentence of imprisonment initially imposed and suspended or resentence the offender. Some of the reasons for resentencing instead of imposing the original sentence have been set out in R v Tonna (No 2) [2020] ACTSC 362 at [78]-[79]. It has, however, become not uncommon for participants who have made some reasonable progress to seek a further opportunity to seek continuing rehabilitation outside the Treatment Order: see, e.g., R v Hancock (No 3) [2022] ACTSC 232. Because of the importance that rehabilitation can have on the appropriate sentence that is to be imposed and its success, if it can be achieved, on the protection of the community, it is, in appropriate cases, in the public interest and permissible to allow that to be attempted. It may be that, despite the intense therapeutic program and significant support provided under a Treatment Order, there will be breaches of the Order, which may require the cancellation of a Treatment Order. This, however, may be such a shock or a shake-up to those participants, whose participation has been sufficiently adequate or successful as to suggest that it is possible and desirable to re-engage an offender, that it is appropriate to allow for further rehabilitation outside the Treatment Order regime prior to imposing a sentence. Such pre-sentence rehabilitation was often undertaken by offenders, prior to the establishment of a Treatment Order regime, by using a Griffiths remand and, later, a Deferred Sentence Order: see R v Kelly [2021] ACTSC 143; 16 ACTLR 81 at 87 [33].
24․There was, in this case, appropriate support from the Crown for such a disposition, where it was submitted that, in relation to Mr Po’oi, “the drug use, in itself, is intimately related to his likelihood of committing offences”, noting that, “[h]e will be released into the community at some point”. The protection of the community would be better served if rehabilitation could be achieved. That would be in the public interest: see Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 573 [32].
25․Mr Po'oi originally considered re-engaging with the Solaris Therapeutic Community, but, on 24 September 2021, he had secured admission to the residential drug rehabilitation program at Canberra Recovery Services. He was granted bail on condition that he did enter the program. He was also required to appear in Court from time to time.
26․On 5 November 2021, he did not appear in Court and a warrant was issued for his arrest. He was not arrested until 6 December 2021 and remanded in custody. He was also charged with three fresh offences committed the previous day. These offences of dishonestly taking a motor vehicle without authority, damaging property and dishonestly riding in a motor vehicle without consent were then listed before the Court.
27․He was refused bail and remanded in custody. He was also later charged with being an unlicensed driver, failing to stop when directed by police and driving with a prohibited drug in his oral fluid. He remained in custody.
28․He again sought admission to the Solaris Therapeutic Community almost as soon as he entered custody, namely on 7 December 2021. He was then admitted and started the program on 16 December 2021. He graduated on 10 June 2022. He was described as making “significant progress”, and engaging “in a positive manner, both with his peers and staff”.
29․The next stage of the program for rehabilitation conducted by Karralika Programs Inc, following completion of the Solaris Therapeutic Community program, is the Matrix Program, also conducted by Karralika Programs Inc, but in the community. It is described in R v Subasic (No 2) [2023] ACTSC 79 at [25]-[26]. It can also provide ongoing support, such as accommodation and residential after care within its Nexus Program: see R v Ware [2016] ACTSC 264 at [86]-[87].
30․Accordingly, bail was sought on 1 August 2022 and, as Mr Po'oi could only complete the admission arrangements for the Matrix program while in the community, he was granted bail.
31․In yet a further example of Mr Po'oi's difficulty in translating his success in custody into the community, he was then arrested on 12 August 2022, less than a fortnight after he was granted bail. He was charged with dishonestly riding in a motor vehicle without consent, aggravated dangerous driving and being an unlicensed driver as well as various other offences. He was again remanded in custody.
32․Given that he was proposing to plead not guilty to some of the offences, he could not be dealt with speedily and he remained in custody.
33․Again, he applied for and was admitted to the Solaris Therapeutic Community program. He was admitted to that program on 26 March 2023 and successfully completed it on 23 June 2023. In custody, he also completed a number of certificate programs between March and July 2023. Thus, he completed programs in Safe Work Practices, Food Safety, Responsible Service of Alcohol, Work Safety and Construction, Identify and Reporting Asbestos Silica Protection and a Certificate II in Construction.
34․He received a very positive report from his counsellor and psychotherapist at the Solaris Therapeutic Community, though it was a bit concerning since, as with her same reports for his completion of the Solaris Therapeutic Community program in 2020 and 2021, she saw him then as also proceeding positively. She did, however, add that, at this time, his participation was 'significantly and remarkably different’: see R v Po'oi (No 5).
35․One significant matter of difference was that Mr Po'oi had connected with one of the presenters of the certificate programs in custody. The presenter, Mr Nigel Maloney, wrote a positive reference for Mr Po'oi and had discussed with him the possibility of work after completing of his rehabilitation. Particularly relevant in this context is that Mr Po'oi has had very limited employment in the past.
36․Accordingly, despite Mr Po'oi's failures when he had been granted bail on 7 September 2021 and 1 August 2022, he was granted further bail. He has not been charged with any further offences since then. Bail reports have been provided for 6 and 24 October 2023 and 5 December 2023. He has been tested for drugs with negative results and reports from the program provided to his bail supervisor have been positive.
37․He did have one lapse when he met with his brother, who is still using drugs, and used drugs on that occasion. Significantly he did not relapse to ongoing drug use; admitted the lapse; and Canberra Recovery Services did not discharge him. He was, at his initiative, drug tested more frequently, three times a week thereafter, with no lapses. He has established boundaries with his family.
38․On 24 October 2023, Mr Po'oi entered pleas of guilty and convictions were entered to the three offences that attracted licensed disqualifications. These were the offences of aggravated dangerous driving, failing to stop for police and driving with a prescribed drug in his oral fluid. The first two offences carried an automatic licence disqualification of Mr Po'oi's licence for three months which could be extended were the Court minded to do so but that was not done. For the third offence, there was an automatic disqualification of Mr Po'oi's licence for a period of five years, but reducible to 12 months. That reduction was made by the Court. The cancellations were directed under s 69 of the Road Transport (General) Act 1999 (ACT) to be concurrent.
39․On 9 November 2023, Mr Po'oi was awarded a further Certificate of Completion of a program on Enter and Work in Confined Spaces. He advised the Court that he was seeking work in the Newcastle Hunter Valley region and that Mr Maloney was assisting him to do that.
40․Canberra Recovery Services reported his completion of its residential drug rehabilitation program on 1 November 2023. The report, dated 29 November 2023, was very positive. It was presented to the Court on 5 December 2023.
41․Importantly, Mr Po'oi had complete a Relapse Prevention Plan. He had also explored the role of trauma and adverse childhood experiences, probably for the first time. He had been encouraged to explore activities that he enjoys such as sport, in which he had engaged as a child, and reconnecting with his son and baby niece. He has connected with Everyman and arranged weekly counselling there to continue addressing the consequences of his trauma. He has attended Alcoholics Anonymous meetings and is proposing to attend meetings of Narcotics Anonymous and is seeking a sponsor.
42․As noted above, Mr Po'oi spent 46 days in presentence custody prior to being sentenced on 8 February 2021. While subject to the Treatment Order, he had been remanded in custody on four occasions for a total of 36 days. Those periods will need to be taken into account when considering whether to impose the original term of imprisonment: s 80ZE(3)(b) of the Sentencing Act. Since the cancellation of the Treatment Order, he has been remanded in custody for 60 days. He was then granted bail but was arrested on 5 December 2021 and remanded in custody until he was granted bail again on 3 August 2022, being in custody for 242 days. He was then arrested again on 12 August 2022 and remanded in custody. He was granted bail on 22 August 2023, a total of 376 days. He has been on bail since then.
43․Thus, the period of pre-sentence custody that needs to be considered is a total of 760 days.
44․In addition, Mr Po'oi has been in residential rehabilitation. He spent 35 days after the Treatment Order was made but left on 15 March 2021, because of a relationship which he now recognises was toxic for him. He continued his treatment in the community. More recently he entered Canberra Recovery Services when granted bail on 27 September 2023. He graduated on 1 November 2023, a total of 81 days.
45․It is appropriate to recognise residential drug rehabilitation with restrictions on liberty and for it to be taken into account in sentencing: see R v Elphick (No 2) [2015] ACTSC 23 at [88]-[89]. This can be done by backdating the commencement of the sentence under s 63 of the Sentencing Act. It is not always appropriate to allow one day pre-sentence custody for each one day in residential rehabilitation. In this case it is appropriate to allow 80 days. This makes the presentence custody a total of 840 days. These will be taken into account on sentence.
Sentencing Proceedings
46․There are now three sets of proceedings to be dealt with also by the Court on sentence: the offences for which the original sentence was imposed leading to the Treatment Order, the offences committed on 5 December 2021, and the offences committed on 12 April 2022.
47․On sentence, the Crown and prosecutor, ably represented by Mr S Bargwanna, tendered without objection the prescribed Prosecution Tender Bundle. It contained the prescribed cover sheet, though that did contain some incorrect dates, an Agreed Statement of Facts, Mr Po'oi's Criminal History, a Victim Impact Statement, the Crown Tender Bundle for the original sentencing and a copy of R v Po'oi (No 3).
48․Ms C Duffy, who equally ably represented Mr Po'oi, tendered a bundle of material which contained the Certificates of Completion of the various programs referred to above at [32]; an email dated 14 March 2023 from Mr Maloney; a letter dated 23 March 2023 from a firm, Quality Training in Construction, concerning Mr Po'oi's engagement with their training; a report dated 11 April 2023 from Karralika Programs Incorporated; a treatment plan for Mr Po'oi for the Solaris Therapeutic Community; a Relapse Prevention Plan prepared by Mr Po'oi; a further letter of 22 June 2023 relating to Mr Po'oi's completion of the Solaris Therapeutic Community program and a Certificate of Completion of that program dated 23 June 2023; an email dated 10 April 2023 from his mother; and a further email dated 9 August 2023 from Mr Maloney.
49․She also tendered without objection a letter from Everyman, a further email dated 30 November 2023 from Mr Maloney, the Certificate of Completion dated 1 December 2023 from the Canberra Recovery Services program, an email signed on 15 August 2023 from Mr Po'oi and a further email dated 20 November 2023.
50․There was a challenge to the Victim Impact Statement and some passages were not read. One challenged passage is dealt with below (at [124]-[128]).
51․Apart from that challenge, there were no challenges to the contents of any of the documents tendered to the Court. The Court, of course, had access to the documents previously tendered in these proceedings.
52․Mr Bargwanna provided very helpful written submissions. Both he and Ms Duffy provided valuable oral submissions and engaged respectfully in debate with the Court and answered its questions.
53․From this material, the following findings are made.
The Facts
54․It is essential for a Court sentencing an offender to find the facts. This is, of course, made easier when the parties agree on the facts, providing an Agreed Statement of Facts, but the Court must make its own findings of the facts. The facts for the five offences, for which Mr Po'oi was sentenced to imprisonment to be served by a Treatment Order, are set out in R v Po'oi at [10]-[28]. It is not necessary to repeat that detail here. The following summary suffices.
55․On 25 February 2022, Mr Po'oi and a co-offender entered an unoccupied residence under construction by forcing a locked door. They intended to steal property from what the workers had left there, but did not actually do so. They were confronted by some neighbours and, after an altercation and Mr Po'oi attempting to flee, they were arrested by police, whom the neighbours had called. He was found with a black-handled folding knife, for the possession of which he had no explanation. These actions led to Mr Po'oi being charged with aggravated burglary and possession of a knife without reasonable excuse. The circumstances of aggravation were that he was in company and with a knife, an offensive weapon.
56․Then, on 2 April 2020, he entered the garage of a residence and took one of the two vehicles parked there, which he then drove away and subsequently abandoned, apparently undamaged. Mr Po'oi was charged on 18 April 2020 with burglary, dishonestly taking a motor vehicle without the owner's consent and dishonestly driving a motor vehicle without consent.
57․The next set of offences were committed on 5 December 2021. On that day, Mr Po'oi was a passenger in a Hyundai motor vehicle being driven at 3.23 am along Murranji Street, Hawker, ACT. The motor vehicle had been stolen on 27 November 2021, but there is no evidence that Mr Po'oi had stolen it. Police attempted to intercept it and identified Mr Po'oi as a passenger in the motor vehicle, not the driver.
58․When it became stuck against the police vehicle, having collided with it front on, police officers got out of their vehicle and went to open the passenger door of the stolen vehicle, but Mr Po'oi held onto the door handle attempting to stop them doing so. The motor vehicle then backed away and sped off, but was pursued by police. The police could not intercept it and terminated the pursuit. They later found the vehicle abandoned on McHugh Street, Evatt, ACT. A black mask in the vehicle was examined and was shown to have DNA from Mr Po'oi on it.
59․These were the facts that led to the charge of dishonestly riding in a motor vehicle without consent.
60․Later that day, at about 2.45 pm, Mr Po'oi went to a motor vehicle dealership in Fyshwick and inspected a number of motor vehicles. He spoke to a salesman there about purchasing a car, advising that he needed a family car as, he said, “we” were having a baby and his parents were going to lend him $18,000 to buy a car.
61․He walked away, however, and then got into a Holden Commodore motor vehicle on the premises and drove it out of the dealership without any authority. This was the offence of dishonestly taking a motor vehicle without consent.
62․At the time, Mr Po'oi was not licensed to drive, as his driver licence had expired on 18 November 2020. This was the first offence of being an unlicensed driver.
63․The salesperson contacted police and reported the theft of the motor vehicle. Police stationed in a street in Mawson, ACT, detected another stolen motor vehicle travelling with the Holden motor vehicle along the same street. Police then deployed tyre deflation devices on Athllon Drive, Mawson, in an attempt to intercept the motor vehicles, but the vehicles avoided the devices.
64․Police activated the emergency lights and sirens of the police vehicle and pursued the Holden motor vehicle which continued to drive away, but within the posted speed limit. At an intersection, the motor vehicle crossed to the incorrect side of the road and police terminated the pursuit. These were the facts on which the charge of failing to stop for police was based.
65․Mr Po'oi was later sighted by police, when he got out of the motor vehicle and ran away. He was seen to have a bag strapped to his vest. He ran to and climbed over a fence into a property in Kambah, ACT, where police lost sight of him. He ran into the backyard of an adjacent house where he was confronted by the occupant, who told him to get off the fence and go away. Mr Po'oi then jumped onto the roof of the garden shed adjacent to the rear fence of the property. He partially fell through the roof but was able to recover himself, jump onto the garage roof and leave the premises.
66․The Agreed Statement of Facts is particularly coy and unhelpful, but it appears from the Bench Sheet from the ACT Magistrates Court that Mr Po'oi falling through the Colorbond steel roof of the shed was what actually constituted the damage to property, being the offence charged. No details of the damage and no cost of the damage was in evidence.
67․Police did, however, locate Mr Po'oi behind a gate at an adjacent property. He was wearing the shoes and mask that he had been wearing when he stole the motor vehicle. When directed to get on the ground, he attempted to flee and was arrested after being tasered and sprayed with oleoresin capsicum spray. The backpack containing the keys to the Holden Commodore motor vehicle were subsequently located by the owner of the premises, where it had been left by Mr Po'oi.
68․He underwent a screening test, which proved positive for a prescribed drug, and was taken to the City police station, where he was subject to an oral fluid analysis. The test showed a positive result for a prescribed drug and Mr Po'oi admitted that he was using heroin. These facts led to the charge of driving with a drug in his oral fluid.
69․The next set of offences was committed on 12 August 2022. On that day, Mr Po'oi drove a Toyota motor vehicle in Salter Place, Torrens, ACT. The motor vehicle had been stolen the previous day but there is no evidence that Mr Po'oi had stolen it.
70․When he saw police, Mr Po'oi drove the vehicle into Ritchie Street, Torrens, and police tried to flag him down. Mr Po'oi, however, accelerated away. Police were able to deflate the rear tyres and the vehicle began sliding around the road. Mr Po'oi continued to drive it, reaching speeds of 80 kilometres per hour in the posted 60 kilometres per hour speed limit area. Police pursued it but the road conditions were treacherous because of very wet weather.
71․Police later found Mr Po'oi and he was arrested. These facts led to the charge of dishonestly driving a motor vehicle without consent, aggravated dangerous driving, the circumstances of aggravation being that he failed to comply with a signal by police to stop the vehicle, and being an unlicensed driver.
The Offences
72․Having found the facts, the Court must now identify the seriousness of the offending, because most offences can be committed in a variety of ways and in various circumstances. These will often indicate that the offence is a more or less serious version of the offence. Under s 33(1)(a) of the Sentencing Act, this is a mandatory consideration required of a Court sentencing an offender.
73․In addition to finding the facts, there are two other relevant matters that a Court sentencing an offender must find for this purpose; the first is the maximum penalty for the offence, clearly a mandatory prescription of the legislature and a comparator with other offences. It is also the penalty prescribed for the worst category of the offence. Taken with all the other relevant factors, it provides a yardstick.
74․The other matter is the identification of particular factors that the Courts have identified over time as the relevant matters that will aggravate or mitigate the actual version of the offence committed. This is in part also another mandatory consideration: current sentencing practice; s 33(1)(za) of the Sentencing Act.
75․Dishonestly taking a motor vehicle without consent is an offence against s 318 of the Criminal Code 2002 (ACT), which prescribes a maximum penalty of five years imprisonment or a fine of $80,000 or both.
76․There has been consideration of this offence in a number of decisions, helpfully summarised in R v Po'oi at [67]-[70]. It is not necessary here to list all the identified factors. The relevant ones are as follows.
77․The taking of a motor vehicle is serious, but perhaps less serious here, because it was taken from a commercial dealership than from an individual who may suffer the loss of what is often their most expensive purchase, apart from a home, and who, especially perhaps in Canberra, would suffer inconvenience without transport on which they would normally rely.
78․This is not to say that this was not a serious offence. The loss of a motor vehicle will be a significant loss to a business and, even if the business is indemnified by insurers, this will have an effect on premiums.
79․The value of the motor vehicle is an important factor but, regrettably, that was not in evidence as it rarely is provided to the Court. Nevertheless, the Court can accept that it was not a luxury motor vehicle and it appears it was a new car, so the value would be significant, but not as very great as if it had been a luxury motor vehicle. The motor vehicle’s tyres were damaged and, as he continued to drive it, it may have damaged the wheel rims, but there was no evidence of this and so it could not aggravate the offence. It appears that Mr Po'oi was driving for about 80 minutes and the vehicle was recovered, though clearly at least the tyres had been damaged.
80․Damaging property is an offence contrary to s 403 of the Criminal Code and attracts a maximum penalty of 10 years imprisonment or a fine of $160,000 or both. The maximum penalty is so high because the offence spans a very wide range of offending from a small dent to a motor vehicle panel to the destruction of a building.
81․Here, unfortunately, the evidence is particularly thin as to the actual damage caused, the extent of it, and no value of the damage was given. In particular, the prosecution is required to prove matters of aggravation to the standard of beyond reasonable doubt: R v Carney [2013] ACTSC 266 at [149]. In this case, the absence of evidence cannot permit the Court to find that it was a very serious version of the offence, perhaps not even a serious version, though nevertheless, the damage to the shed roof would have caused some cost to the owner.
82․Dishonestly riding in a motor vehicle without consent is made an offence by section 318 of the Criminal Code and renders Mr Po'oi liable for a maximum penalty of five years imprisonment or a fine of $80,000 or both. The offence of dishonestly driving a motor vehicle without consent is subject to the same provisions and the same maximum penalty. It is, however, a more serious version than merely riding in the motor vehicle: see R v Massey (No 1) [2020] ACTSC 256 at [36].
83․These offences have been the subject of consideration also. The factors are helpfully summarised in R v Connors [2022] ACTSC 324 at [63].
84․Thus, the first offence on 5 December 2021 was one where Mr Po'oi was a passenger and therefore riding in the motor vehicle and so not so serious. The period of riding was for less than two and a half hours. The time of day was unclear on the evidence but early in the morning, where traffic is likely to have been light.
85․The owner of the motor vehicle in which Mr Po'oi was riding was deprived of the vehicle for a day over a week, but Mr Po'oi is not wholly responsible for that. The inconvenience caused to the owner is set out in a Victim Impact Statement and referred to below.
86․The motor vehicle in which Mr Po'oi was riding was likely damaged in the collision with the police car. There was damage to the tyres of the vehicle. Mr Po'oi was not directly responsible for that damage.
87․As to the other similar offence, Mr Po'oi was driving the motor vehicle. It was stolen on 11 August 2022 and recovered the next day.
88․In this case of the motor vehicle that Mr Po'oi was driving, he committed several traffic offences, but the motor vehicle was not used for other offending such as burglaries or robberies.
89․Aggravated dangerous driving is prohibited by s 7 of the Road Transport (Safety and Traffic Management) Act 1999 (ACT), made aggravated by s 7A of that Act because of the fail to stop, and sets a maximum penalty of three years imprisonment and a fine of $5,000 or both.
90․In addition, there is an automatic disqualification of Mr Po'oi's driver licence for three months or such further period as the Court may order: s 63 of the Road Transport (General) Act. As noted above (at [38]), that has already been addressed. A number of relevant factors for this offence have been set out in R v Law [2021] ACTSC 351 at [31], which will be addressed, so far as relevant here.
91․There was no evidence of other road users in the vicinity and, given the time, 12.37 am, it seems unlikely that, though it was a residential area, there would be many other road users put at risk. The weather conditions were, however, very bad, which made, for example, the speed more dangerous. The manner of driving was not especially bad and the speed was the main aggravating factor. The distance travelled was not very far. There were no passengers in the vehicle. Mr Po'oi, however, failed to cease driving when flagged down by police. He was unlicensed still in this case but not impaired by drugs or alcohol.
92․There were no other aggravating factors for this offence such as a collision or near collision.
93․Failing to stop by police is criminalised by s 5C of the Road Transport (Safety and Traffic Management) Act and renders Mr Po'oi liable for a maximum penalty of one year imprisonment or a fine of $1,600 or both. It also attracts a mandatory licence disqualification for three months or such further period as the Court may determine. Again, this has been addressed earlier (at [89]).
94․The offence was created to reduce the number of police pursuits which can put both the police involved and other road users at risk as well as the offender: see SBT v Wright [2021] ACTSC 322 at [78].
95․The relevant features have been discussed in R v Dowling (No 2) [2021] ACTSC 200 at [68]-[72]. In this case, there were no particular circumstances of aggravation other than that it was associated with the police pursuit. While that is an aggravating feature, it is frequently an accompaniment of the offence and, of course, the failing to stop has been charged separately. In that sense too, it is aggravated by being an attempt to evade apprehension: R v Hodge [2011] ACTSC 15 at [18].
96․Driving with a prescribed drug in the driver's oral fluid is proscribed by s 20(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT), which renders Mr Po'oi liable to a maximum penalty of three months imprisonment or a fine of $4,000 or both. He is also liable to an automatic disqualification from holding or obtaining a driver licence for an automatic period of three years, which can be reduced to 12 months. This was also addressed earlier as above noted (at [89]).
97․Of course, impaired driving is a serious offence and puts other road users at significant risk. Again, it is more serious if the impaired driving is associated with dangerous driving, especially speeding, though care must be taken with such factors not to punish the offender twice when the manner of driving, as here, is separately charged.
98․Section 31 of the Road Transport (Driver Licensing) Act 1977 makes driving without a licence an offence punishable by a maximum penalty of a fine of $3,200.
99․The offence is an important part of the regulation of driving which is, in significant part, directed towards safety as well, of course, as good traffic management.
Subjective Circumstances
100․After the facts and the seriousness of an offence, the most important matter for a Court sentencing an offender to take into account is the subjective circumstances of the offender. This is mandated by s 33(1)(m) of the Sentencing Act and several other paragraphs of that section. Here, the subjective circumstances of Mr Po'oi have been set out substantially in R v Po'oi at [76]-[91]. That will be taken into account but does not need to be repeated here.
101․A number of matters have also been set out in these remarks when setting out the background. A number of matters have also come to light in the years during which Mr Po'oi has been engaged in the long, slow and difficult process of his rehabilitation. Even now it is somewhat a work in progress.
102․Important matters, noted above, are the difficulty he had in addressing both the challenges that his father's discipline and his parents' problematic interaction involved and then the traumatic event that has clearly been a huge challenge for him. No doubt it has been really difficult and a really difficult matter for him to confront and may well have contributed to the trouble he had in translating his rehabilitation success in custody into the community.
103․Importantly, he has now begun addressing these issues and is obtaining some counselling. This will continue with Everyman. Everyman is a not-for-profit community organisation in Canberra, established in 1982 and evolving in 1991 to providing a dedicated team of counsellors which provide specialist programs to address the complex needs of men who have needs for such support. These include meeting the needs of men who have:
·used violence with partners, other family or in the community;
·experience of domestic and family violence and/or sexual assault as children or adults;
·acquired brain injury or other neurological issues which affect emotional dysregulation;
·experience of incarceration or secure mental health facilities, and/or
·considerable histories of service provider support failure.
104․As noted above, Mr Po'oi has commenced counselling with a counsellor at Everyman every week to address some of the issues with his childhood experience. He has also, as noted, significant experience with incarceration, especially over the past 13 years.
105․He has prepared a Relapse Prevention Plan which is comprehensive and thoughtful. He also received significant support from his ongoing involvement with Karralika Programs Inc, as noted in R v Po'oi (No 5).
106․He has further completed a significant number of courses related to his employment while in custody as he noted in a letter to the Court:
What I have come to realise is in order for me to live a drug-free life, I have to break away from my old behaviours. Since being in custody, I have tried to do that by applying and doing as many courses that are going to benefit me in the community because, if I am being honest, usually, I just worry about doing the drugs and alcohol courses, but this time I have completely [sic] courses that can actually benefit me in the community and that will help me with finding work.
107․Further, a significant change over the last few years is that his last offences were committed on 12 August 2022. While he has been in custody for over eight months since then, he has been in the community now since he was granted bail on 1 August 2023. Since then, now over five months, he has done two things that he had not done before. He has not committed any further offences and he has completed a residential drug rehabilitation program in the community. The report from Canberra Recovery Services was very positive.
108․These significant differences from his past behaviour, together with the support of his mentor, Mr Maloney who is already providing him with employment, suggests that the long process of rehabilitation is achieving some fulfillment and permits the Court to proceed with some optimism.
109․Mr Maloney was, in his two references, very supportive. He described Mr Po’oi as impressing him with ‘his enthusiasm to learn, attention and ability to get in and get his hands dirty and to work genuinely and give it 100 per cent.’ His enthusiasm impressed Mr Maloney ‘immensely’ and he has been in daily contact to discuss employment options.
110․His mother’s recent reference was also significant. She said:
My husband and I have noticed a huge change in Daniel this time whilst in jail. This is the first time Daniel has focused on himself by actually thinking about his future when he gets out of jail or rehab. Daniel has been involved with an education and employment service, discussing what courses he could do to enhance his chances of employment when released. Daniel has had time to really think about his future when released. He wants to do the normal things that people do like get a job, spend the time with his son and family and not relapse into addiction and he feels that this time, he is in the right frame of mind to be successful and break the chain of returning to jail.
When Daniel was at CRS (Canberra Recovery Services), he was in a toxic relationship and was more focused on her than his addiction recovery, which led him to leave the program. He truly regrets that now. He is no longer in that relationship and knows now that he should have ended it a long time ago and concentrated on his recovery. Daniel has moved on from that and is now fully focused on his recovery and moving on in his life. He has realised that having a partner whilst trying to rehabilitate himself is not a good idea and just wants to be successful this time.
111․Of course, it is important to be cautious with such references, but by the same token, his mother is one of the people who is likely to know him best. The matter of employment is also important. As noted above, Mr Po’oi has had little employment and so his financial resources are limited. He has been living with his parents. To gain some independence from employment would be an important part of his integration into the community and advance his rehabilitation.
112․Indeed, it is almost a textbook case of what the Court said in Saga v Reidand Collett [2010] ACTSC 59 at [89] as follows:
It can be accepted that drug addiction is such that it can take a number of failed attempts at rehabilitation before it is successful. It is hard work and there is no short cut or quick fix. It can take some time, and some failures, before an offender addict manages to break through the barriers to achieve a more effective rehabilitation. The Courts cannot, of course, sit back and allow attempts to be made without end. By the same token, past failures do not automatically deny an offender the opportunity for a further attempt. Ordinarily, there would have to be some rational basis for permitting it. That may be merely the nature of the offence. For example, sentencing on a drug offence may allow further attempts to be made, whereas, in the absence of some other factors, continuing burglaries or robberies would make a sentencing court much more hesitant about further attempts after multiple failures.
113․See to the somewhat same effect, what was said in R v Gardner (No 3) [2023] ACTSC 229 at [19].
114․Of course, it is far too early to be too optimistic, but the matter is identified to give rational bases for continuing in the current rehabilitative path and provides a positive foundation for such a future.
Victim Impact Statement
115․There were a number of victims of Mr Po’oi’s offending. There were direct victims such as the owners of the stolen motor vehicles, which he stole, drove or rode in as a passenger.
116․There were the unidentified persons who may have been put at risk by his dangerous or impaired driving. There was the community whose stability was upset by the offending that would make its members feel insecure about their own vehicles. There were the economies applying when insurance premiums are adversely affected by claims of damage that may have been made, both for the motor vehicles and the garden shed. Even to know that there are unlicenced drivers, who are using the roads when their licence may have been withheld for poor traffic behaviour, may make other road users feel unsafe.
117․For a long time, victims were really bystanders to the criminal justice system, merely witnesses with no institutional importance as perhaps they had before prosecuting became professional. Now, they have been given a powerful voice in their capacity to provide Victim Impact Statements: see R v Loeschnauer [2022] ACTSC 30; 98 MVR 484 at 493 [41].
118․Of course, Courts who hear cases about crimes which happen regrettably relevantly frequently, are able to understand in general terms the harms that victims suffer from their crimes. As noted in R v Ridley [2014] ACTSC 382 at [42]: “the court is entitled to draw reasonable inferences from the evidence about the effect of an offence on a victim, even in the absence of a victim impact statement”.
119․Of course, given the onus on the prosecution, it will, in the absence of evidence often only available from a victim, be difficult to show such harm as would likely aggravate the sentence to be imposed.
120․In this case, the Court is favoured with a Victim Impact Statement from the victim for the first offence of dishonestly riding in a motor vehicle without consent. The victim was the owner whose vehicle had been stolen on 27 November 2021, nine days before Mr Po’oi was driving it. Under Pt 4.3 of the Sentencing Act, such a statement is a record of, relevantly, the victim, of the harm, namely:
(a)physical injury; and
(b)mental injury or emotional suffering (including grief); and
(c)pregnancy, and
(d)economic loss; and
(e)substantial impairment of rights according to law
suffered as a result of the commission of the offence.
121․A victim has a right to make a statement, which is either read out or merely tendered. The victim may seek to provide the Victim Impact Statement through an audiovisual link or other provisions to ease the stress of giving a statement.
122․Although entitled to do so, the victim did not read the statement out. To do so, however, can be both empowering for a victim and often a more certain way of ensuring that the offender has heard and understood the harm suffered.
123․The Victim Impact Statement is to be taken into account by the Court, but it is, however, not evidence in the ordinary way nor subject to the rules of evidence.
124․The Court must consider the statement and there is no statutory provision for cross-examination of the victim who chooses to read the Victim Impact Statement out in open Court.
125․In R v Porter (No 3) [2022] ACTSC 236, the Court set out a very helpful and detailed analysis of such statements, and then offered the approach to objections. In particular, and relevantly to this matter at [81]-[82], the Court said as follows:
The Court should not take a technical approach to the admissibility of Victim Impact Statements. Rather, in my view, the Court should be cognisant of objections advanced by counsel and consider whether any reliance can be placed on the objected to portions and, if so, what weight should be applied to those portions. While accepting counsel for the offender’s submission that Victoria has a different statutory regime and that statements regarding harm must be sworn or affirmed, that does not mean that this Court should not follow the sensible approach outlined in Swift. Indeed, the fact that the ACT Legislature has not chosen to require statements of harm to be affirmed in the same manner as required in Victoria is a matter that speaks against importing a requirement that statements be in a strictly admissible legal form.
It follows that I accept the prosecution submission that it is largely a question of weight to be given to the various statements. I note that, as I indicate below, there are some portions of the statements to which I cannot afford any weight and must place no reliance on: see Swift. However, in my view, significant latitude ought to be provided to victims in relation to how they express themselves concerning the harm that they have suffered. The victims of the crimes are the individuals best placed to describe the impact of the offending on them. The Court should not approach the matter from a technical perspective. Such an approach would defeat the secondary purpose of Victim Impact Statements, namely, for victims to “place before the Court, in their own words, the impact of the crime on [them]”: Swift at [6].
126․The reference to Swift is to the leading Victorian decision of R v Swift [2007] VSCA 52; 15 VR 497.
127․The parties agreed in this case to excise certain comments. Those comments do appear not to be a reference to harm suffered from the commission of this offence and thus not strictly admissible. This is understandable as the victim is unlikely to understand the niceties of the criminal law. That Mr Po’oi had not been found guilty of the dishonestly taking of her motor vehicle without her consent, for example, but merely using it, and may not have had any involvement in that part of the offending at all, which is, to a large extent, no doubt, what has caused much of her distress.
128․Accordingly, it was appropriate that those portions, that both counsel agreed should be excised, were struck through and not read.
129․There were two sentences of the last paragraph to which Ms Duffy took objection, but Mr Bargwanna submitted should not be excised.
130․Doing the best that can be done, it seems that these two sentences should be read, but only in the context that the deprivation of the victim from her vehicle caused her significant distress and that, while Mr Po’oi was not the thief, he did participate in the actions that did deprive her of it for a period of time. The weight will be moderated accordingly.
131․The victim expressed the stress that the deprivation of her vehicle had for her. It impacted on her financial wellbeing as her income was directly linked to it. She used it as “a means of transport for [travelling to and between] clients, being the elderly and those more vulnerable.” Without it, she could not earn her income.
132․She had to hire a vehicle and later to purchase a new vehicle. The latter is not entirely clear as the vehicle was recovered by police, but, in the statement of facts, it does say it was “towed to the AFP Centre in Mitchell”. It was subject to a forensic procedure.
133․It had struck a police motor vehicle where Mr Po’oi was in it, and this may have made it one that the victim could not use. Mr Po’oi’s co-offender did drive it away. This is somewhat explained when she said, “[t]o then see the car in that state when it was released by the police was absolutely heartbreaking”’ She “saw the car as an extension of [herself]”. It was an extension of her personality and independence, which she found “forever tarnished”.
134․This special harm is very relevant to the offence and will be taken into account.
Sentencing Practice
135․Section 33 of the Sentencing Act sets out factors which a Court sentencing an offender must take into account, so far as it is known to the Court. One matter raised in that section is current sentencing practice, s 33(1)(za) of the Sentencing Act.
136․Part of this has been addressed above when considering the nature and circumstances of the offences. The other part requires the Court to have regard to the actual sentences currently being imposed by the Courts. This is not because the decisions prescribe a sentence or a range of sentences, as noted above at [6]-[9], but in order to achieve consistency.
137․That may be done in two ways. The Territory is fortunate that a statistical record is kept of many of the sentences imposed by the Territory Courts. The ACT Sentencing database is that record.
138․While there are significant limitations on statistics and, in particular, the statistics in that database, the information is of value, so long as those limitations are taken into account: see R v Weldon [2021] ACTSC 348 at [82]-[83]; R v Massey (No 1) [2020] ACTSC 256 at [73]-[75].
139․Unfortunately, for the offences of dishonestly taking, driving, or riding in a motor vehicle without consent, the Database is currently not of great value, for it does not distinguish between these two versions of the offence and the two versions have significant differences, despite the fact that they are found in the same provision. For what it is worth, however, in R v Massey (No 1) at [76]-[77], it was said:
In relation to the offence of dishonestly taking, driving or riding in a motor vehicle without the owner's consent, the statistics show that as at February 2019 – unfortunately the statistics do not, at that time, include any later results – 91.5 per cent of offenders were sentenced to imprisonment in the Supreme Court, of which 74.5 per cent were required to spend at least some of that in actual custody. Of these latter, 46.5 per cent were sentenced to up to six months' imprisonment and 32.5 per cent were sentenced to seven to 12 months' imprisonment. The maximum sentence was of two years and eight months' imprisonment.
There seems to have been a reduction in the length of sentences more recently.
140․In relation to dangerous driving, only 14 sentences were currently recorded in the Database. This is not a significant number on which to base much finding. Apart from one sentence of a fine and two sentences of an Intensive Corrections Order, the other 11 sentences were of full-time imprisonment of terms between three months and 12 months imprisonment, with 73 per cent of them being in the three-to-six-month period.
141․The other method of considering current sentencing practice is to consider comparable decisions. This has the considerable advantage of allowing the Court to understand why the sentence has been imposed and the principles on which the Court has relied. As was said by the High Court in Hili v The Queen [2010] HCA 45; 242 CLR 520 at 537 [54]-[55]:
In DPP (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have, in fact, been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said, "Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate Courts." But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence". Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate Courts, and stand as a yardstick against which to examine a proposed sentence" (emphasis added). When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned".
As the plurality said in Wong:
"Recording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were.”
(Footnote omitted)
142․In this case, Mr Bargwanna helpfully provided a table of ten decisions, though one of those decisions was actually repeated in the table, in which he had summarised the relevant factors for dangerous driving. The decisions were R v Seymour [2021] ACTSC 152; R v Crawford (a pseudonym) [2022] ACTSC 166; R v Williams [2017] ACTSC 298; R v Goolagong (No 2) [2021] ACTSC 131; R v Law [2021] ACTSC 351; R v Collins [2019] ACTSC 302; R v Rosewarne [2021] ACTSC 217; Mann v Tremethick (No 2) [20223] ACTSC 31, and R v Guy [2022] ACTSC 323.
143․The sentences ranged from five months imprisonment to 19 months imprisonment. These decisions were of cases where, in each case, the factual circumstances were more serious than for the current offence. The speeds were much greater, in some circumstances, significantly greater than the posted speed limit than here. In many, the offenders drove through red traffic lights and drove onto the incorrect side of the road for significant periods and, in some cases, other drivers or pedestrians had to take evasive action to avoid a collision.
144․Most of the offenders had a considerable criminal history, all had significant drug use, all pleaded guilty with varying discounts, and all were at conditional liberty when offending. Nevertheless, the decisions have been considered carefully.
Consideration
145․The first matter to deal with is the sentencing for the final offences, those committed on 5 December 2021 and 12 August 2022. The difficult task of sentencing required of the Court sentencing an offender is to take into account all the factors required and relevant and apply the instinctive synthesis to reach a single sentence for each offence. For multiple offences, the principles referred to below (at [162]-[167]) apply.
146․This task is made easier in this Territory because the purposes of sentencing, which helps to take the factors appreciably into account, are set out in s 7 of the Sentencing Act. Reference to these purposes can be helpful in approaching the sentence to be imposed that will be just and adequate.
147․The fresh offences are not as serious as his earlier ones but still do represent serious breaches of the norms of a peaceful society, requiring a recognition of that and the consequences in punishment. Such punishment will also serve to denounce the conduct and may, if known, serve to deter others who might be tempted to commit such offences, although that is not so certain.
148․The fresh offences are, however, less serious than the ones for which he was sentenced to imprisonment to be served by a Treatment Order and this can permit some recognition in the sentence to encourage him not to commit offences at all, even though less serious offences are less a challenge to the community than more serious ones. It is important to note, however, that he has committed the more serious of the current offences previously and so the sentence must make appropriate efforts to make it clear that such ongoing conduct is unacceptable and to deter him from further offending.
149․Much significance, however, is to be given to Mr Po’oi’s rehabilitation. It has been a long time coming but, to his credit, he has committed himself quite consistently even after relapses, seeking it out early in his periods of incarceration, sometimes within days. He does this, despite relapse and does achieve some success. That often does not last long, but now it seems to be progressing very well and in the community, where he has had greatest challenges in maintaining his success.
150․All these purposes are, of course, directed to what is recognised as the ultimate purpose of the criminal law, that is, the protection of the community, and the sentence will be fashioned to achieve this in the best way possible.
151․In addition, of course, it is important to acknowledge the harm done to the victims and in this respect, the Victim Impact Statement has been most valuable.
152․Mr Po’oi entered pleas of guilty to all offences in the Magistrates Court. This is of utilitarian value to the criminal justice system and under s 35 of the Sentencing Act requires the Court to consider giving a discount on sentence for the plea.
153․None of the evidence for the offences could be properly described as overwhelming, though, in some cases the evidence was very strong.
154․In five of the fresh offences, the plea of guilty was entered at the second mention an early plea and the utilitarian value was significant. In the case of the other offences a plea of not guilty was entered first. The Magistrates Court Bench Sheets show a plea of not guilty was entered for some offences on 2 August 2022, while for others on 26 September 2022. This required the preparation of a prosecution Brief of Evidence, reducing the utilitarian value of the plea. The Bench Sheets show, however, that the pleas of guilty were entered on 30 January 2023, this varied between, on one occasion the sixth mention and in the other three the seventh mention, though still in the Magistrates Court.
155․Mr Po’oi was on conditional liberty when committing these offences, either on parole or on bail or both. Conditional liberty is the permission given by a Court for an offender to be in the community, rather than in the custody in this case, but on conditions. That may be pending other proceedings while serving a sentence of imprisonment in the community.
156․The conditions will include that the offender commit no further offences. Other conditions, such as a curfew, reporting conditions, rehabilitation requirements and so on may also be imposed. The commission of offences is a breach of such a condition and an abuse of the privilege given by the Court to the offender to be in the community.
157․That breach is not an offence in itself, but it is a breach of the conditions imposed and this is to be reflected in a more serious sentence. Strictly, it does not increase the objective seriousness of the offence: see Boney v The Queen [2015] NSWCCA 291 at [18]-[20], applied in this Territory in R v Po’oi at [94].
158․There is no real doubt that Mr Po’oi’s offending is related to his drug use. That is, of course, not an excuse but it is an explanation. The circumstances of his introduction to drug use is that he was young at the time, about between 12 and 14 years old, well before he could make an informed choice about such use. That will reduce Mr Po’oi’s moral culpability: see R v Henry [1999] NSWCCA 111; 40 NSWLR 346 at 273 [397]-[398], Douglas v The Queen (1995) 56 FCR 465 at 470.
159․Mr Po’oi’s pleas of guilty can be some very limited evidence of remorse. This of itself, however, is a thin basis on which to consider that factor and find any remorse that he has expressed, though it must not be discounted. Thus, as in the Victorian Court of Appeal said in Barbaro v The Queen [2011] VSCA 288; 226 A Crim R 35 at 365-6 [38]-[40], the Courts should approach assertions of remorse with caution.
160․While it is relevant that Mr Po’oi has not expressed remorse himself directly to the Court or the victims, his counsellor really did so in the various letters to the Court, indicating that ‘[h]e is remorseful towards the victims’. He has also shown a movement away from his former self-centred focus to recognising the harm that he does to others by his offending, particularly his family.
161․This glimmer of remorse can be discerned and, very limited though it maybe, it is a foundation on which he can build, hopefully, with his counsellors to achieve a better appreciation of those he has harmed by his offending. Nevertheless, it is a level of remorse that is relevant to sentencing.
162․In addition to all these matters, the Court, of course, takes into account the nature and circumstances of the offending, as noted earlier, as well as Mr Po’oi’s personal circumstances and the steps he has taken with a commendable persistence and perseverance to manage to achieve some solid and durable rehabilitation which, hopefully, is now within his reach.
163․Nevertheless, having considered all the relevant alternatives it is clear that for the more serious of the offences only a term of imprisonment is appropriate for those for which such a sentence is available: s 10 of the Sentencing Act. That, of course, does not necessarily require that the term of imprisonment be wholly served in custody: see R v DK [2016] ACTCA 7 at [27]-[37], Eaglen v Hayward [2023] ACTSC 304 at [48].
164․There are, of course, nine further offences though two do not carry a penalty of imprisonment. The Court must impose a proper, just and adequate sentence for each of the offences and the term of imprisonment for those for which a sentence of imprisonment is appropriate must be carefully considered to ensure that Mr Po’oi is not punished twice for the same criminality. Thus, for example, the impaired driving with a drug in his oral fluid is the same as the impaired driving which is a relevant factor in dishonestly driving a motor vehicle without consent.
165․The Court must then consider whether any of the sentences should be partly or wholly concurrent. Thus, this may be required in order to avoid double punishment and as mentioned earlier because the offence is part of the same course of conduct. That applies here, too, where the driving involved in the dishonestly taking a motor vehicle without consent and the dishonestly driving a motor vehicle without consent will, in each case, be part of the same course of conduct associated with the two offences of driving whilst unlicensed.
166․Similarly, with the offences of dishonestly driving a motor vehicle without consent and aggravated dangerous driving, they will all be part of the same course of conduct.
167․The Court must then consider the length of the total period of all the sentences of imprisonment to ensure that the important principle of totality is respected and that the total sentence adequately reflects the criminality of the offences but no more than that and that the total sentence, including the period that Mr Po’oi has already served is not excessive. This includes both the sentence served when his parole was cancelled and the period of the imposition of the sentence following the cancellation of the Treatment Order. As was said by Hunt CJ at CC in R v Gordon (1994) 21 A Crim R 459 at 466:
When a custodial sentence is to be imposed which will be cumulative upon or which will overlap with an existing custodial sentence the Judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the total of criminality involved in all of the offences to which the total period is attributable.
168․Thus, the total sentence must leave open the realistic prospect of pursuing, continuing and establishing the reform of Mr Po’oi, which he has started to imbed in his life and his rehabilitation from drug use and crime so that he will finally, successfully achieve it. Though it is only a start, it will help him to maintain his hopes for integration into the community as a father, a son, an employee and a member of his family, hoping that he now sees a future which he wishes to secure.
169․This may, of course, result in what some see as a degree of leniency with some sentences made concurrent with others. While the total criminality of Mr Po’oi is an important factor, however, so is his commitment to his rehabilitation and his realisation that he still needs to address his dependence, now still part of his ingrained history of some 37 years. The sentences must be proportionate to the criminality of Mr Po’oi but also to his circumstances, the effects of them on the community, but also Mr Po’oi’s subjective circumstances and the value of his reform, both to the community and to himself.
170․The second issue, then, is whether the sentence imposed on him, when the Treatment Order was made should be imposed now that it has been cancelled or where there are circumstances for him to be resentenced now.
171․There is no doubt that, since the cancellation of the Treatment Order, Mr Po’oi has had a difficult journey. He has made many efforts at rehabilitation. At least initially, those in the community were unsuccessful. Some were spectacularly so. He has, it seems, in a very long time been able to succeed well in his rehabilitation in custody. He has, of course, now completed three courses at the Solaris Therapeutic Community Program and has succeeded not only to complete them but to achieve some very successful compliance.
172․That, however, has, in the past, not lasted into the community where he has, until about 16 months ago, relapsed to criminality and been unable to sustain the sobriety and commitment to rehabilitation in the community.
173․That seems to have changed. The reasons are generally referred to in the reasons above.
174․Thus, he has shown a significant change of attitude and direction. Whether it will be stable and durable is yet to be ascertained, but it certainly has shown clearly that it is moving strongly in that direction.
175․While presentence rehabilitation can change the nature of the sentence or the length of the term of imprisonment, it seems in this case that the right balance is for the sentence of imprisonment to be imposed, but suspended after service of the lengthy period of presentence custody. That will make clear the consequence of the offending, both the seriousness of the offences, but also the seriousness of ongoing criminality while Mr Po’oi was at conditional liberty.
176․The suspension, however, will recognise the achievements towards rehabilitation that he has secured, but will provide support and some encouragement towards success, and the provisions that will, hopefully, keep him reminded of the need to pursue rehabilitation, for custody is there if he stumbles seriously and regresses into his old and regrettably lengthy lifestyle of drugs and crime.
177․This is somewhat of the same balance that was addressed in Griffiths v The Queen (1977) 137 CLR 293 at 295, 306, 329.
178․Accordingly, the sentence originally imposed will be reimposed but immediately suspended with a good behaviour order and a probation condition for as long as the person supervising him deems appropriate.
179․The sentences for the fresh offences should, accordingly, follow the same pattern. They are serious offences, less serious, given the maximum penalties, than the original offences, but serious because of the breach of conditional liberty and the ongoing breaches that they flagrantly represented even when he was granted bail.
180․If Mr Po’oi does succeed this matter will be the end of his involvement in the criminal justice system. If he cannot maintain his sobriety and crime-free lifestyle the good behaviour order will be cancelled and the term of imprisonment imposed. The sword of Damocles is there to encourage and motivate him, not to terrorise him. Hopefully, it will this time succeed.
[His Honour spoke directly to Mr Po’oi]
181․Mr Po’oi, please stand.
(1)Your conviction of aggravated burglary (CAN 5762/2020) be confirmed and the sentence of 24 months of imprisonment be imposed to commence on 15 September 2021 and expire on 14 September 2023.
(2)Your conviction of burglary (CAN 4460/2020) be confirmed and the sentence of 14 months of imprisonment be imposed to commence on 15 April 2024 and expire on 14 June 2024.
(3)Your conviction of dishonestly take motor vehicle without consent on 2 March 2020 (CAN 9704/2020) be confirmed and the sentence of 9 months of imprisonment be imposed to commence on 15 December 2023 and expire on 14 September 2024.
(4)Your conviction of dishonestly take motor vehicle without consent between 2 and 3 April 2020 (CAN 4462/2020) be confirmed and the sentence of 6 months of imprisonment be imposed to commence on 15 June 2024 and expire on 14 December 2024.
(5)Your conviction of possessing a knife without reasonable excuse (CAN 2723/2020) be confirmed and the sentence of 1 month of imprisonment be imposed to commence on 15 December 2024 and expire on 14 January 2025.
(6)You be convicted of take motor vehicle without authority (CAN 11703/2021) and sentenced to 11 months of imprisonment to commence on 15 November 2024 and expire on 14 October 2025.
(7)You be convicted of damage property (CAN 11706/2021) and sentenced to 1 month of imprisonment to commence on 15 October 2025 and expire on 14 November 2025.
(8)You be convicted of dishonestly ride motor vehicle without consent (CAN 1585/2022) and sentenced to 5 months of imprisonment to commence on 15 September 2025 and expire on 14 February 2026.
(9)You be convicted of dishonestly drive motor vehicle without consent (CAN 7876/2022) and sentenced to 9 months of imprisonment to commence on 15 January 2026 and expire on 14 October 2026.
(10)You be convicted of aggravated dangerous driving (CAN 7880/2022) and sentenced to 9 months of imprisonment to commence on 15 July 2026 and expire on 14 April 2027, and that he be disqualified from driving for 3 months from 24 October 2023.
(11)You be convicted of driving as an unlicensed driver on 12 August 2022 (CAN 7879/2022) and be fined for $400.00 with 12 months to pay from 4 January 2024.
(12)You be convicted of driving as an unlicensed driver on 8 December 2021 (CAN 11704/2021) and be fined for $400.00 with 12 months to pay from 4 January 2024.
(13)You be convicted of fail to stop motor vehicle for police (CAN 11705/2021) and be sentenced to 4 months of imprisonment to commence on 15 February 2027 and expire on 14 June 2027, and that he be disqualified from driving for 3 months from 24 October 2023.
(14)You be convicted of driving with drug in oral fluid (CAN 11707/2021) and be sentenced to 1 month of imprisonment to commence on 15 June 2027 and expire on 14 July 2027, and that he be disqualified from driving for 12 months from 24 October 2023.
(15)The sentence of 70 months be suspended from 4 January 2024 until 14 July 2027.
(16)You be required to sign an undertaking to comply with the offender’s good behaviour obligations under section 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from 4 January 2024 to 14 July 2027 with a probation condition that you accept the supervision of the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising you considers appropriate and obey all reasonable directions of the person supervising him.
182․Mr Po’oi, that is a lot of words. At least you were sitting down when most of it was said but you have been around the courts long enough to know what that is all about. Besides which, it is about you and what you did. We had a lot of hope and expectation when you arrived and were granted a Treatment Order. It has been a very challenging time since then. I congratulate you on your persistence and your commitment, going back into custody, getting back into training and keeping at it. And that is showing promise and it is now showing fruit.
183․I think there are two things that are really important, as I have mentioned. One of those is that you see a future in the community as another good member of the community and that is in the connection you have made with Mr Maloney. I hope that this still going well, which will lead to employment and will give you an opportunity to see yourself as you can really be, not as someone running around from the police and going in and out from the Alexander Maconochie Centre, but being in the community with your family, with your son, with your new niece, with employment. That will give you other people that will be interesting too, with your friends and others, and be a person whose life is not dominated and overborne by drugs and crime.
184․It will still be hard. In the many, many years you have been dependent on drugs, it has had a claw inside you that has grabbed you and retained you. You are now moving away from that in what you have done in the last 16 months, having another go at Solaris, yes, but also doing those other programs. Look at yourself and at some of the challenges that you have had and, perhaps, some of the reasons why you haven’t been able to do as well at a particular time and all the other times you have tried. Getting the counselling, continuing with Everyman, getting an understanding of what that is and how you may address it, how you may control it and not let it control you - those are the things that hopefully if you latch onto. Grab with both hands what you can achieve, what you really tell me and have kept telling me you want, which is to be drug and crime free.
185․So, I will give you this opportunity. People might be critical of that because if you just look at your history, why would a Court take this risk? In the more recent history and with some triggers that can justify me pointing to the things that will continue to keep you in the community as an honest member of our society, they will, I hope, be the basis and the foundation on which you can build the future life that you will have.
186․Now, there’s still a long time to go. The sentence lasts till 2027, the middle of 2027. If you continue the way you do, it may well be that the supervision, under probation can be ended early. And then all you will have to do is make sure you don’t commit any further offences, because, if you do, or if you breach your probation conditions, you will be brought back to Court – I will probably be dead by then – but you will be brought back to Court and you will be dealt with, and you can be put back into custody. You will serve all the time that you have got left, because time in the street does not count in these circumstances. It will be taken into account what you did, but, basically, you have got that custody.
187․I am saying that because you are a smart, intelligent man. You need to know the facts and those are the facts. So, there is a lot riding on it, but I do not say it to terrorise you, to make you frightened. At the end of the day, what I hope really motivates you is not the fright of being in custody, because that does not frighten you. You have been there so long you probably could rule the place if you wanted to.
188․What frightens you, I hope, is losing what I hope you are now seeing for yourself in the community - what you can be as a good member of our community, as a father, as a son, as a member of the community, as an employee, as a friend. At the end of the day concentrate on a future focus, fixing your gaze on those things which make you the real Daniel Po’oi you ought to be and can be. These are the things which, at the end of the day, I hope will keep you committed and will justify me giving you this opportunity to go forth and do the great things that you can.
| I certify that the preceding one hundred and eighty-eight [188] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge Acting Justice Refshauge Date: |
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