R v QN
[2018] ACTSC 363
•19 December 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v QN |
Citation: | [2018] ACTSC 363 |
Hearing Dates: | 15, 24 May 2018; 29 August 2018; 11, 19 December 2018 |
DecisionDate: | 19 December 2018 |
Before: | Loukas-Karlsson J |
Decision: | See [34]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of Good Behaviour Order – further offending – intensive corrections order APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – whether magistrate had jurisdiction to order an intensive corrections order when offender serving a suspended sentence – appeal upheld |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 7, 8, 12, 80 Crimes (Sentence Administration) Act 2005 (ACT) s 110 Magistrates Court Act1930 (ACT) s 219D |
Cases Cited: | R v PM [2009] ACTSC 24 R v PM (No 2) [2015] ACTSC 358 |
Parties: | The Queen (Crown) QN (Offender) |
Representation: | Counsel Ms S Beaumont (Crown) Ms B Dunne and Mr R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 327 of 2008 ; SCA 28 of 2018 |
Decision under appeal: | Court/Tribunal: Magistrates Court Before: Magistrate Boss Date of Decision: 21 March 2018 Case Title: Murphy v QN Court File Numbers: CC14/9822; CC17/4335; CC17/4729 |
LOUKAS-KARLSSON J
Introduction
On 16 March 2009 Justice Refshauge sentenced QN for several serious sexual offences and an offence of theft. The sentences totalled seven years' imprisonment, and that was to be served, as to the first three years, by full‑time imprisonment, and the last four years suspended (R v PM [2009] ACTSC 24 (R v PM)).
As required under s 12 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), Justice Refshauge made a good behaviour order for those further four years. Section 12(2) of the Sentencing Act requires that the length of the good behaviour order must be as long as the period during which the sentence is suspended. The balance of the sentence that was suspended was four years, so that was the minimum period for which the good behaviour order was made.
As QN was a young person, under the age of 18 years, he was excluded from the parole regime. The good behaviour order Justice Refshauge made was to expire on 18 February 2015. On 24 September 2014, however, QN committed driving offences, and these offences constituted a breach for which he was dealt with by Justice Refshauge in R v PM (No 2) [2015] ACTSC 358 (PM (No 2)). His honour made the following orders:
1. I confirm the conviction for the offences of sexual assault in the first degree, sexual intercourse without consent, sexual intercourse without consent and theft.
2. I cancel the Good Behaviour Order made on 16 March 2009.
3. On the first count of sexual assault in the first degree, I sentence you to four years imprisonment to commence on 5 November 2012. Had you not pleaded guilty I would have sentenced you to six years imprisonment.
4. On the second count of sexual intercourse without consent, I sentence you to three years imprisonment to commence on 5 November 2014. That is to be cumulative as to one year on the first sentence. Had you not pleaded guilty I would have sentenced you to four years imprisonment.
5. On the third count of sexual intercourse without consent, I sentence you to three years imprisonment to commence on 5 November 2015. That is to be wholly concurrent with the second sentence. Had you not pleaded guilty I would have sentenced you to four years imprisonment.
6. On the fourth count of theft, I sentence you to 12 months imprisonment to commence on 5 November 2017. That is to be wholly cumulative on the third sentence. Had you not pleaded guilty I would have sentenced you to 18 months imprisonment.
7. I order that the balance of the sentence be suspended today and that you sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act for three years with a probation condition that, for three years or such lesser period as the person supervising you thinks appropriate, you be on probation, subject to the supervision of the Director-General or her delegate and obey all reasonable directions of that person, especially directions about treatment and counselling for alcohol abuse and grief and loss.
On 15 April 2017, the offender committed the offences of driving whilst disqualified and driving with a prescribed concentration of alcohol. He pleaded guilty to these offences on 15 August 2017. The commission of these offences placed the respondent in breach of the good behaviour order imposed by Justice Refshauge in 2015.
On 21 March 2018, the offender was sentenced by Magistrate Boss in the ACT Magistrates Court for the 2017 driving offences. In respect of the offence of driving whilst disqualified, the offender was sentenced to eight months' imprisonment to be served by way of an intensive corrections order (ICO), commencing on 21 July and ending in March 2019.
In respect of the offence of driving with a prescribed concentration of alcohol, the offender was sentenced to four months' imprisonment to be served by way of an ICO. Magistrate Boss also cancelled the suspended sentence which had been imposed in relation to the 2014 driving offence and imposed a further period of imprisonment, to be served by way of ICO. As such, the total imprisonment was 12 months to be served by way of ICO.
The ICO imposed by Magistrate Boss is currently the subject of an appeal instituted by the prosecution on the basis that Magistrate Boss did not have jurisdiction or authority to make that decision. Section 80 of the Sentencing Act provides that:
A court must not make an ICO to be served concurrently or consecutively with a sentence of full-time imprisonment, a suspended sentence ... or a good behaviour order.
The prosecution submits that when Magistrate Boss purported to make the ICO in respect of the 2017 driving offences and the breach of the good behaviour order in respect of the 2014 offence the respondent was at that time serving a suspended sentence in respect of the sexual offences for which he was originally sentenced in 2009 and was subject to a good behaviour order.
Breach of Good Behaviour Order
QN admitted the breaches constituted by the 2017 driving offences and it falls to me to deal with him for them. As the good behaviour order was made when a sentence of imprisonment was suspended, s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) applies and, in particular, provides as follows:
The court must cancel the good behaviour order and either impose the suspended sentence imposed ... or resentence the offender for the offence.
10. As Justice Refshauge stated in PM (No 2) at [19]-[22], there is no presumption in this jurisdiction in favour of imposing the sentence that was suspended:
19. Nevertheless, careful consideration needs to be given to that option for there are, as I explained in Saga v Reid [2010] ACTSC 59 at [99]-[101], important policy reasons for considering that option. As Howie JA (with whom Sully and Price JJA agreed) said in Director of Public Prosecutions (NSW) v Cooke (2007) 168 A Crim R 379 at 386; [23]:
There is nothing more likely to bring suspended sentences into disrespect than the failure of courts to act where there has been a clear breach of the conditions of the bond by which the offender avoided being sent to prison.
20. Nevertheless, there has been a recognition that justice may require a different response. In Guy v Anderson at [88], I pointed out that the court must consider matters such as the nature and seriousness of the offence which constituted the breach of the Good Behaviour Order to determine whether resentencing is disproportionate to the seriousness of the breaching offence.
21. In Tanner v Brown [2011] TASSC 59 at [94], Wood J said:
Ultimately, the question of whether it would be unjust to activate a suspended sentence will depend on an evaluation of the individual circumstances of each case. In assessing this question of whether it will be unjust to activate the sentence ‘the objective of the suspended sentence option as reformative as well as penal’ is to be borne in mind. Thus relevant factors may include those that indicate the progress made by an offender in relation to his rehabilitation. Some of the factors mentioned in the judgments of [R v Buckman (1988) 47 SASR 403] and the [R v Marston (1993) 60 SASR 320] are indicative of this consideration: disproportion between the original offence and the breaching offence or offences, whether the nature of the offence suggested that the offender has lapsed into a non-law abiding way of life and the question of whether the offender had reverted to criminal conduct comparable to the offence for which the suspended sentence was imposed. Allied to this consideration were the matters referred to in Buckman that the offender was making a genuine attempt at rehabilitation and that there had been an observance of the conditions of the suspended sentence for 18 months. In summary, relevant to the reformative aspects of the suspended sentence option is whether the suspended sentence is having its desired effect in terms of rehabilitation of the offender. See also Stanitzki v Higgins (1994) 63 SASR 309.
22. In Bukulaptji v The Queen (2009) 24 NTLR 210 at 218; [35] Riley J set out some of these considerations in the following list:
(a) the nature and terms of the order suspending the sentence;
(b) the nature and gravity of the breach and, particularly, whether the breach may be regarded as trivial;
(c) whether the breach evinces an intention to disregard the obligation to be of good behaviour or to abandon any intention to be of good behaviour;
(d) whether the breach demonstrates a continuing attitude of disobedience of the law;
(e) whether the breach amounted to the commission of another offence of the same nature as that which gave rise to the suspended sentence;
(f) the length of time during which the offender observed the conditions;
(g) the circumstances surrounding or leading to the breach;
(h) whether there is a gross disparity between the conduct constituting the breach and the sentence to be restored;
(i) whether the offender had been warned of the consequences of a breach; and
(j) the level of understanding of the offender of his obligations under the terms of the order suspending the sentence and of the consequences of a breach.
Evidence
11. There were a number of exhibits before me in relation to the resentencing of QN:
(a)Exhibit 1 on sentence contains the good behaviour order by Justice Refshauge;
(b)Exhibit 2 contains the statement of facts;
(c)Exhibit 3 the pre‑sentence report;
(d)Exhibit 4 a transcript;
(e)Exhibit 5 police statement of facts in relation to the offences committed on 14 April and charged on 15 April 2017;
(f)Exhibit 6 the pre‑sentence report;
(g)Exhibit 7 an ICO report prepared for the 2018 resentencing of the offender;
(h)Exhibit 8 a court alcohol and drug assessment report;
(i)Exhibit 9 a CADAS progress report;
(j)Exhibit 10A a number of references;
(k)Exhibit 11 the ICO imposed by Magistrate Boss in the Magistrates Court; and
(l)Exhibit 12 contains the most recent ICO assessment report dated 22 November 2018.
12. I am required to resentence QN, and it follows from s 110(a), however, that the sentence must be one that meets the relevant purposes of sentencing set out in section 7 of the Sentencing Act for the original offences. It is not, for example, simply a penalty for the breach of the good behaviour order which may be applicable for breaches of the good behaviour order not associated with a suspended sentence, as I have referred to above.
13. I then turn to the subjective circumstances in the ICO report. In this context I have had regard to what Justice Refshauge stated in R v PM about the facts that constituted the offences, the subjective circumstances of QN and the seriousness of the offences. I do not need to repeat what Justice Refshauge there said, but I take it into account.
14. The material provided to me, which I have referred to above, establishes the following matters. According to the ICO report, the offender was compliant with supervision and reported, as directed, for six interviews during the ICO assessment period, with one scheduled home visit and three field visits completed. He presented as motivated to meet the obligations of an ICO. He was directed to complete a total of three illicit drug tests and one alcohol breath test, all of which returned negative results.
15. The offender is currently employed on a full‑time basis performing home maintenance for clients of Winnunga Aboriginal Health Services. He reported that he enjoys his work and has recently received a wage increase.
16. He is currently participating in a six-week alcohol and drug Road to Recovery program through Winnunga. His attendance in that program has been poor, as is evident by not completing the course to date, whilst commencing the program earlier in the year. There have also been missed appointments with Dr Boer, psychologist.
17. Counsel for the offender stated on 11 December 2018:
Although he works for the same organisation, he instructs me he was busy with work and couldn't get time off to attend the program, but he's continuing to attend, and indeed has an appointment - another session this afternoon.
18. The prosecution stated:
Employment is a protective factor, but so is attending these programs, as is evident by his PCA level 4 reading.
19. The prosecution agreed that the prosecution's submissions were directed to the imposition of an ICO, but with strict conditions, including a curfew condition.
20. Additionally, the ICO assessment report had regard to the offender's attendance, his current offences, curfew considerations and the availability of suitable programs. The offender showed a willingness to accept the consequences of his actions and the impact on himself, family and other road users. He currently has a curfew condition on his ICO. It was recommended by the report's author that a curfew condition remain, which would have the offender being present at his residential address between 9 pm and 6 am every day.
21. He was assessed as treatment‑ready to undertake programs to address his criminogenic risk factors in accordance with the Corrections Victoria readiness questionnaire administered to him in December 2017.
22. The ICO report concluded in the following terms in relation to assessment:
[The offender] is a 28-year old Aboriginal man for whom his cultural identity, and connections to his family, appears a significant motivation in relation to self-worth and future goals.
To his credit, he has maintained fulltime employment and has continued to address his relationships with both his parents and partner. His history of alcohol use and subsequent criminal behaviour as well as his history of breaching community based orders and inconsistent engagement with programs/counselling is of a concern.
[The offender] is considered to be at medium risk of general reoffending and a moderate-low risk of sexual reoffending. This risk may be reduced by continuing to undertake specific interventions and manage his alcohol abuse, sexual offending and seek assistance for grief and loss.
23. The ultimate recommendation is that he is suitable to undertake an ICO.
Consideration
24. I take into account all the matters to which Justice Refshauge referred to in R v PM. I take into account all the further findings Justice Refshauge made in R v PM (No 2).
25. I propose in light of the history of this matter, and taking into account the fact that I agree with the written submissions of both the prosecution and the offender that it is appropriate that the recommendation in the ICO assessment report be taken up. In respect of the theft matter an ICO ought to be imposed.
26. I intend, in relation to the sexual assault offences, that there should be sentences of imprisonment for the first three counts, reduced relative to the sentences imposed in 2009 and 2015 by Justice Refshauge. That would acknowledge the respondent's compliance with his good behaviour obligations during the period after he was resentenced by Justice Refshauge in November 2015, and before he reoffended in April 2017.
27. The ICO will ensure that the respondent is subject to supervision as he has demonstrated that he is not completely reformed in light of his 2017 driving offending.
28. As I have indicated, in my view, the recommendation of an ICO assessment report should be taken up in respect of the theft. An ICO ought to be imposed. It must be remembered that the imposition of an ICO is not a lenient sentence. Its content will require strict adherence, and if this is not followed could result in a period of full‑time custody.
The Appeal
29. I now turn to the appeal from Magistrates Boss. I grant leave to appeal out of time against the order of Magistrate Boss made on 21 March 2018 imposing an ICO for 12 months.
30. On 21 March 2018, Magistrate Boss sentenced the respondent in respect of the 2017 driving offences as follows:
(a)CC14/9822 – Good Behaviour Order cancelled. Resentenced to 6 months imprisonment to be served by ICO, to commence 21 March 2018 and end 20 September 2018;
(b)CC17/4335 – Sentenced to 8 months imprisonment to be served by way of ICO to commence 21 July 2018 and end 20 March 2019;
(c)CC17/4729 – Sentenced to 4 months imprisonment to be served by way of ICO to commence 21 August 2018 and end 20 December 2018.
31. Section 80 of the Sentencing Act provides the court must not make an ICO to be served concurrently or consecutively with a relevant sentence. Thus, at the time that the ICO was imposed in respect of the 2017 driving offences, and at the time the ICO was imposed for the breach of good behaviour order related to the 2014 offence, the offender was serving a suspended sentence and subject to a good behaviour order. The magistrate therefore had no jurisdiction to order an ICO.
32. The prosecution, as I have indicated, seeks a review appeal pursuant to s 219D(b) of the Magistrates Court Act1930 (ACT). The question on this appeal is whether Magistrate Boss was permitted to impose an ICO whilst the offender was still subject to a suspended sentence order. It is clear the magistrate did not have jurisdiction to order an ICO in the circumstances.
33. I therefore uphold the appeal. It is an error to order an ICO while an offender is subject to a suspended sentence order. Once I have dealt with the breach of good behaviour and suspended sentence order, the offender will be subject to an ICO, not a suspended sentence order. In these circumstances, it is appropriate that I thereafter uphold the appeal and subsequently impose a concurrent ICO.
Orders
34. I make the following orders
(a)I confirm the convictions for the offences of sexual assault in the first degree, and two counts of sexual intercourse without consent, and theft.
(b)The good behaviour order made on 5 November 2015 is cancelled.
(c)In relation to the first count of sexual assault in the first degree (CH2008/261), I impose a sentence of three years of imprisonment to commence on 17 December 2015 ending 16 December 2018, reduced from five years on account of the plea of guilty.
(d)In relation to the second count of sexual assault in the first degree (CH2008/264), I impose a sentence of two years of imprisonment to commence on 18 December 2016 ending 17 December 2018, reduced from three years on account of the plea of guilty.
(e)In relation to the third count of sexual assault in the first degree (CH2008/263), I impose a sentence of two years of imprisonment to commence on 18 December 2016 ending 17 December 2018, reduced from three years on account of the plea of guilty.
(f)In relation to the count of theft (CH2008/262) HH imposes a sentence of 12 months of imprisonment to commence on 19 December 2018, reduced from 18 months on account of the plea of guilty. In respect of this count, the sentence of 12 months is to be served by way of intensive corrections order. I impose the core conditions. I impose the following additional conditions:
(i)The offender is not to consume alcoholic beverages;
(ii)The offender is to continue to engage with Winnunga Nimmityjah Aboriginal Health Services for alcohol counselling and mental health;
(iii)The offender is to continue to engage with Dr Boer for sexual offending counselling;
(iv)The offender be subject to a curfew by remaining at the proposed residential address between 9:00pm and 6:00am every morning.
(g)Leave is granted to appeal out of time against the orders of Magistrate Boss.
(h)The appeal against the sentences imposed by Magistrate Boss is upheld.
(i)For CC2017/4335, the offender is re-sentenced to 8 months imprisonment to be served by way of intensive corrections order, commencing 19 April 2019 and ending 18 December 2019. I impose the core conditions I acknowledge the two year mandatory disqualification period ordered by the Magistrate at first instance.
(j)For CC2017/4729, the offender is re-sentenced to 4 months imprisonment to be served by way of intensive corrections order, commencing 19 May 2019 and ending 18 September 2019. I acknowledge the disqualification period of one year (the minimum period) ordered by the Magistrate at first instance. I impose the core conditions.
(k)For CC2014/9822, the offender is re-sentenced to 6 months imprisonment to be served by way of intensive corrections order, commencing 19 December 2018 and ending 18 June 2019. I impose the core conditions.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Date: |
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