R v Price
[2018] ACTSC 145
•22 May 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Price |
Citation: | [2018] ACTSC 145 |
Hearing Date: | 15 May 2018 |
DecisionDate: | 22 May 2018 |
Before: | Loukas-Karlsson J |
Decision: | See [34]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Good Behaviour Order – breach of Good Behaviour Order – further offending - suspended sentence – Good Behaviour Order following suspended sentence |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) Crimes Act 1900 (ACT) |
Cases Cited: | Guy v Anderson and Telford [2013] ACTSC 5 |
Parties: | The Queen (Crown) Wayne Price (Offender) |
Representation: | Counsel Mr D Swan (Crown) Ms B Dunne (Offender) Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Defendant) |
File Number(s): | SCC 12 of 2015 |
Loukas-Karlsson J
Introduction
This matter comes before me as a result of the breach of a good behaviour order. The breach is admitted.
On 23 October 2015, Robinson AJ sentenced Mr Price for one count of causing grievous bodily harm in contravention of s 25 of the Crimes Act 1900 (ACT). Mr Price was sentenced to 10 months. Robinson AJ ordered that the sentence be suspended immediately upon Mr Price entering a Good Behaviour Order for a period of 3 years, with that order to include a condition that Mr Price complete 200 hours of community service work.
The Good Behaviour Order made by Robinson AJ would have expired on 23 October 2018. On 7 May 2017, however, Mr Price committed an offence. The offence was that without reasonable excuse, he had in his possession in a public place, namely the public foyer of units in Ainslie, in circumstances likely to cause alarm, an offensive weapon, namely a large stick.
The circumstances surrounding to the offence were as follows according to the Statement of Facts tendered by the prosecution. At about 3:15pm on 7 May 2018, Mr Price attended the unit of Mr Paul Meszaros, which is in the same group of units that Mr Price lives in. Mr Meszaros was with his friend Mr Grahame Alvarez at the time. Mr Price rang the doorbell of the unit, and Mr Meszaros opened the front door. Mr Alvarez was seated on the couch. Mr Price yelled at Mr Alvarez through the front screen door. Mr Price was angry that Mr Alvarez had been calling and texting a friend of his. A short time later, Mr Price walked upstairs to his unit and returned with a large stick in his hand. Mr Price then started to bang the large stick on the fly screen door and shout at Mr Alvarez. Mr Price threatened Mr Alvarez. Mr Alvarez heard Mr Price shout “Get out the front, I’m going to smack your head in”. Mr Alvarez told Mr Price that he was paranoid and crazy, and instructed him to get away. Mr Price had returned upstairs by the time the police had arrived. Mr Price then called Mr Meszaros on his phone to apologise for his behaviour. Police arrested Mr Price after attempting to open the door for between 10 and 15 minutes, and then forcing entry to the unit.
I note that the pre-sentence report prepared for the Magistrate’s Court hearing indicates that Mr Price agreed to the statement of facts, and recounted a similar course of events with no major discrepancies.
This is an offence contrary to s 380(1) of the Crimes Act 1900 (ACT), which provides for a penalty of a fine of $1000, imprisonment for 6 months, or both.
On 2 March 2018, Mr Price was convicted in the Magistrates Court for the offence. Magistrate Cook sentenced Mr Price to a 12 month Good Behaviour Order, with the condition that he perform 150 hours of community service work within 12 months of the order, and that he submit to the supervision of the Director General for a period of 12 months or such lesser period as deemed appropriate. The Good Behaviour Order commenced on 2 March 2018 and ends on 1 March 2019.
Pursuant to s 107(2) of the Crimes (Sentence Administration) Act 2005 (ACT), Mr Price was committed to the Supreme Court in relation to the breach of the good behaviour obligations imposed by Robinson AJ on 23 October 2015.
Breach of Good Behaviour Obligations
Section 110 of the Crimes (Sentence Administration) Act 2005 (ACT) provides as follows:
110 Cancellation of good behaviour order with suspended sentence order
(1) This section applies if—
(a) an offender’s good behaviour order was made under the Crimes (Sentencing) Act 2005, section 12 (3) (Suspended sentences) on the offender’s conviction for an offence; and
(b) a court is satisfied the offender has breached any of the offender’s good behaviour obligations.
(2) The court must cancel the good behaviour order and either—
(a) impose the suspended sentence imposed for the offence; or
(b) re-sentence the offender for the offence.
(3) If the offender has given security under the good behaviour order, the court may also—
(a) order payment of the security to be enforced; and
(b) order the good behaviour order to be cancelled on payment of the security (if the term of the order has not already ended).
(4) The Crimes (Sentencing) Act 2005 applies to the re-sentencing in the same way that it applies to the sentencing of an offender on conviction for the offence.
(5) To remove any doubt, an offender re-sentenced by a court under this section has the same right of appeal as the offender would have had if sentenced by the court on being convicted of the offence.
I am satisfied that the conviction by the Magistrate’s Court for an offence is a breach of Mr Price’s good behaviour obligations. I am required by s 110(2) to cancel the Good Behaviour Order made by Robinson AJ, and either impose the suspended sentence or re-sentence Mr Price.
Refshauge J held in Guy v Anderson and Telford [2013] ACTSC 5 (Guy) at [83]-[87] that there is no presumption in the ACT in favour of imposing the sentence which had been suspended. His Honour stated at [88] that:
…it is also clear that the court must consider the nature and seriousness of the offence which constituted the breach of the good behaviour order if that is what it was. In R v Marston (1993) 60 SASR 320, King CJ, after referring to the above principle (at [87] above), commented (at 322) that “there are circumstances in which it is proper to refrain from revoking the suspension of the sentence.” One of these, his Honour noted, was where there is a “marked disproportion between the seriousness of the breaching offence and the length of the sentence which is activated if the suspension is revoked”. See also Salmon (1973) 57 C App R 953 at 956.
Further circumstances
In order to determine this matter, I was provided with the offender’s prior criminal record, the Pre-Sentence Report that was before the Magistrates Court, and an email from Community Corrections Officer Mr Matthew Musgrave in relation to Mr Price dated 14 May 2018 dealing with his supervision and the completion of the community service.
From this material, I note the following matters relevant to whether I should impose the sentence that was suspended or re-sentence Mr Price.
First, the offence was committed on 7 May 2017. That is approximately 1 year and 7 months after he was sentenced, and just over 1 year and 5 months before the expiry of the Good Behaviour Order.
Second, Mr Price had completed the 200 hours of community service work as required by Robinson AJ’s sentence to a satisfactory standard prior to 14 May 2018.
Third, Mr Price has attended all scheduled appointments and has engaged well in discussions regarding his offending behaviour since entering into his most recent Good Behaviour Order. Mr Price has so far completed 32 hours of Community Service work and has no recorded failures to attend since 2 March 2018.
Fourth, the offence committed by Mr Price which gave rise to the breach, namely possessing an offensive weapon, is of a different nature to the violent offences for which he was sentenced by Robinson AJ.
In this instance, it is also highly relevant to note that the Crown did not submit that the suspended sentence should be imposed.
In these circumstances, I do not consider that I should impose the sentence that was suspended when the offender Mr Price was sentenced by Robinson AJ in 2015.
Re-Sentencing
I am required to re-sentence Mr Price. The sentencing discretion in respect of the original offences is re-enlivened and I am able to impose any sentence that would be appropriate for the offences.
The facts of the offence are outlined at [3] – [12] of Robinson AJ’s original sentence, and I do not propose to repeat them here. Similarly, a summary of the impact of the offence can be found at [18] – [19] of Robinson AJ’s sentence and does not require repeating. I take these matters into account.
Mr Price plead guilty to the offence on 26 August 2015. Robinson AJ at [21] was satisfied that this was “at an early stage following the conclusion of relevant discussions between the parties”. Robinson AJ found that the plea had a “substantial utilitarian value”, and accordingly discounted the imposed sentence by “approximately 20%”. I see no reason to divert from this finding, and I will take it into account.
A Pre-Sentence Report dated 28 February 2018 was prepared for the most recent Magistrate’s Court Proceedings on 2 March 2018.
The subjective matters discussed by Robinson AJ at [22]-[28] accord with the Pre-Sentence Report made available to the Magistrates Court, and which was also available to me.
Subjective circumstances
Mr Price is a 59 year old man. It is clear from the material before me that Mr Price experienced a traumatic upbringing, characterised by neglect and abuse. Mr Price has also had a difficult history of alcohol and drug misuse, although he has maintained a lengthy period of abstinence from illicit substances and has successfully accessed pharmacotherapy. However, as is noted in the Pre-Sentence Report, his continued consumption of alcohol may pose some moderate amount of risk in relation to reoffending.
I note that counsel for Mr Price submitted that Mr Price is currently participating well in supervision as required by ACT Corrective Services, and he has commenced counselling with EveryMan to assist him to address the kinds of behaviours and thought patterns that have been identified as leading to the type of offending that Mr Price has engaged in.
Counsel for Mr Price, Ms Dunne, also informed me that Mr Price has been engaged in full-time employment as a rubbish removalist, having initially started with the organisation as a casual worker. This provides him with a stable income and a supportive focus which Counsel for Mr Price submitted has had a positive impact in other areas of his life, especially because Mr Price places a high value on his employment. This is to be encouraged. Rehabilitation is important to both the offender and the community.
Consideration
I take into account all the matters, both subjective and objective, to which I have referred above.
Ms Dunne, who appears on behalf of Mr Price, has suggested a course of resentencing which is appropriate in all the circumstances of this case.
Ms Dunne proposed that the sentence not include full-time imprisonment, noting that Mr Price would benefit from continued supervision. She noted that a further suspended period of imprisonment would allow him to continue with the positive progress he has made under his current order. The prosecution, represented by Mr Swan, agreed with the sentencing course suggested by Ms Dunne.
I consider that a suspended sentence is appropriate given all the circumstances, both subjective and objective, which I have taken into account. As I have already emphasised, ongoing rehabilitation is of importance to both the offender and the community.
Sentence
Mr Price, please stand. I note your conviction in the Magistrates Court for one offence committed in breach of the Good Behaviour Order made by Robinson AJ in 2015. Under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT), I cancel that good behaviour order.
Given the nature of the offence you have committed in breach of the original good behaviour order, and having regard to the subjective and objective circumstances surrounding your offending, I choose not to simply impose the suspended sentence handed down by Robinson AJ. Instead, having regard to the benefit to the community of promoting your rehabilitation, and the signs that you are committed to making efforts towards that rehabilitation, I propose to re-sentence you so as to offer you another chance to complete your sentence in the community.
I make the following orders:
Pursuant to s 110 of the Crimes (Sentence Administration) Act 2005 (ACT):
(i)The Good Behaviour Order imposed by Robinson AJ on 23 October 2015 is cancelled.
(ii)In respect of the offence of causing grievous bodily harm (CC2014/9671), the offender is sentenced to imprisonment for 10 months from 22 May 2018 to 21 March 2019.
(iii)The sentence is suspended with immediate effect.
(iv)The offender is to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentencing Administration) Act 2005 (ACT) for a period of 24 months, on the condition that the offender is subject to the supervision of the Director-General or her delegate for the first 12 months of this 24 month period, or a lesser period as deemed appropriate by the Director-General or her delegate.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson Associate: Date: 22 May 2018 |
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