R v Reid (No 1)
[2021] ACTSC 334
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Reid (No 1) |
Citation: | [2021] ACTSC 334 |
Hearing Date: | 16 April 2021 |
DecisionDate: | 21 April 2021 |
Before: | Refshauge AJ |
Decision: | 1. Nathan Kerry Reid be convicted of dishonestly driving a motor vehicle without consent and sentenced to 12 months imprisonment, to commence on 29 December 2020 and expire 28 December 2021. 2. Nathan Kerry Reid be convicted of using a motor vehicle with using a motor vehicle with improperly issued number plates and 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) for a period of six months, to commence 21 April 2021 and expire 20 October 2021. 3. Nathan Kerry Reid be convicted of minor theft and sentenced to five months imprisonment, to commence on 29 November 2021 and expire 28 April 2022. 4. Nathan Kerry Reid be convicted of possessing ammunition and fined $200 with 12 months to pay. 5. A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Nathan Kerry Reid for 12 months and 8 days from today, 21 April 2021, to 28 April 2022, for the primary offence of dishonestly driving a stolen motor vehicle. 6. The Drug and Alcohol Treatment Order be extended for the associated offence of minor theft. 7. The convictions and sentences for the primary offence and the associated offence be hereby incorporated into the Drug and Alcohol Treatment Order as the custodial part of the Order. 8. The total sentence of 16 months from 29 December 2020 to 28 April 2022 be suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 21 April 2021, to 28 April 2022. 9. For the treatment and supervision part of Drug and Alcohol Treatment: (a) Nathan Kerry Reid be required to comply with the core conditions of a Drug and Alcohol Treatment Order set out in section 80Y of the Crimes (Sentencing) Act 2005 (ACT); (b) Nathan Kerry Reid be directed to reside at the nominated residence for the duration of the Drug and Alcohol Treatment Order and to remain at that place of residence from 7:00pm each day until 7:00am the next day except in case of a medical emergency and to present at the door of the residence to a police officer who requests it between those hours; (c) Nathan Kerry Reid be directed to undergo a program of treatment or counselling and any urinalysis, case management and other programs as may be required by any member of the Treatment Order Team or by Order of the Court from time to time; (d) Nathan Kerry Reid be directed to comply with any direction of the Court from time to time about attendance at Court in person or by electronic means; 10. Nathan Kerry Reid be directed to attend Court on 23 April 2021 at 11:30 am in person. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Ride in Motor Vehicle Without Owner’s Consent – Minor Theft – Possession of Ammunition – Drug and Alcohol Treatment Order – Rehabilitation – Risk Minimisation |
Legislation Cited: | Criminal Code 2002 (ACT) ss 318, 321 |
Cases Cited: | Gilson v The Queen (1991) 172 CLR 353 |
Parties: | The Queen (Crown) |
Representation: | Counsel E Wren (Crown) A Gordon (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Paul Edmonds and Associates (Offender) | |
File Number(s): | SCC 49 of 2021 SCC 50 of 2021 |
REFSHAUGE AJ:
Introduction
A perennial issue for the Drug and Alcohol Sentencing List (the List) of the ACT Supreme Court is the question of whether an offender's wish for rehabilitation will develop into actual action by the offender. A sceptical view is sometimes expressed that an offender's wish to be subject to a Drug and Alcohol Treatment Order (a Treatment Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) is more a wish to avoid incarceration than a commitment to rehabilitation.
The advantage of an offender's rehabilitation to the community, not to mention to the offender and his or her family and associates, is so significant that, as a matter of risk evaluation, taking and giving the opportunity to participate in the List is justified, so long as the Treatment Order is carefully structured and the offending profile does not contraindicate it from the perspective of community safety. A greater challenge for the risk evaluation is when the offender has made prior claims of desiring rehabilitation, or even attempts to rehabilitate, that have not been successful.
It is clear, however, that drug rehabilitation, like all behavioural change, especially those linked to dependencies such as gambling, alcohol and other drugs, can be difficult and encounter failures before success. As I pointed out in Saga v Reid and Collett [2010] ACTSC 59 at [89], this is not necessarily a prohibition on the affording of further opportunities of rehabilitation if there is a rational basis for doing so.
The rational basis must include various considerations. Thus, while the past behaviour of an offender is generally regarded as the best predictor of future conduct, evidence suggests that there are limitations on this general principle, including that it is a best predictor but specifically in short intervals and where the circumstances are identical both in the past and the future. Further, the form of a treatment program is important for the assessment of whether to give an opportunity to rehabilitate again.
In this context, Nathan Kerry Reid, who has pleaded guilty to offences of dishonestly driving a motor vehicle without the owner's consent, using a motor vehicle with improper number plates affixed, minor theft and possessing ammunition, has sought to have a Treatment Order made in respect of them.
On the hearing of the sentence, the Crown Sentencing Tender Bundle was admitted in evidence without objection or challenge to the contents of the documents comprised in it. These documents were the committal and transfer documents, a Statement of Facts that constituted the offences, Mr Reid's Criminal History and three documents being Drug And Alcohol Treatment Assessments (Suitability Assessments) under s 46J of the Sentencing Act, namely a Drug And Alcohol Treatment Assessment of ACT Corrective Services dated 7 April 2021, a Drug and Alcohol Sentencing List Suitability Assessment of the Canberra Health Alcohol and Drug Service dated 8 April 2021 with a carefully prepared Case Plan and a Drug and Alcohol Sentencing List Cultural Assessment dated 6 April 2021.
Tendered by Mr Reid, through his counsel, Ms A Gordon, was a letter of Yeddung Mura Aboriginal Corporation. There was no objection to the tender nor challenge to its contents and it was admitted in evidence. Mr Reid's mother, Patricia Condon, gave oral evidence and was cross-examined. Mr Reid gave evidence on his own behalf and was cross-examined.
From this material, as well as the carefully prepared written submissions of both Ms E Wren, counsel for the Crown, and Ms Gordon, both of whose submissions I found comprehensive, insightful and thoughtful, supplemented by counsel's valuable oral submissions, including their genuine and generous willingness to engage in debate with the Court, it was much easier to identify the real issues and form a proper picture of the circumstances of the facts and the matter.
Accordingly, from the evidence, aided by the submissions, I make the following findings.
The facts
At about 7:10am on 29 December 2020, Mr Reid was seen in company with two other individuals, when he was driving a motor vehicle, a Mitsubishi sedan, with no registration plates. He drove the vehicle into the carpark of a retail establishment in Pialligo, ACT, and parked it next to a white van in a secluded section of the carpark. Mr Reid then got out of the vehicle, removed the registration plates from the white van and affixed them to the Mitsubishi sedan. He then got back into the Mitsubishi sedan and drove away. These events were captured on high quality CCTV footage, which showed them quite clearly.
Later, a report to police was made of the theft of the Mitsubishi sedan from a property in Mitchell, ACT. It was not bearing any registration plates when it was stolen.
Later that day, Mr Reid drove the Mitsubishi sedan to a residence in Narrabundah and parked it in the garage and fell asleep. A caller alerted police to Mr Reid's presence and police soon arrived at the Narrabundah residence and approached Mr Reid. He appeared intoxicated and could not answer simple questions, slurring his speech and being unable to form sentences.
He was searched and police located a small clip-seal plastic bag containing five rounds of .22 calibre ammunition, a syringe and an Allen key. There was no evidence of the presence or discovery of a firearm that could discharge the ammunition. He was arrested and taken into police custody.
Police secured the Mitsubishi sedan, which was determined to be the vehicle taken from the property at Mitchell. No person had given Mr Reid permission to drive the motor vehicle, or to take the registration plates from the white van. Mr Reid was not the holder of a driver licence, nor of a permit allowing the possession of firearm ammunition.
These are the facts that constitute the offences to which Mr Reid has pleaded guilty.
The proceedings
As noted above (at [13]), Mr Reid was arrested on 29 December 2020 and detained until he was brought before the ACT Magistrates Court the next day. He was charged with all four offences and remanded in custody.
On the first adjournment, a date was set for a bail application, but later vacated, and after a couple of further adjournments he pleaded guilty to all offences. The first plea was taken on 2 March 2021.
He was then committed to this Court for sentence on the charge of dishonestly driving a motor vehicle without the owner’s consent and the remaining three charges were transferred under s 90B of the Magistrates Court Act 1930 (ACT) to be dealt with under Pt 8 of the Supreme Court Act 1933 (ACT).
Mr Reid appeared in the List on 12 March 2021, when Suitability Assessments were directed to be prepared. A date was listed for sentence and Mr Reid was remanded in custody.
Accordingly, Mr Reid has now been in Pre-Sentence Custody since 29 December 2020, some 113 days.
The offences
A sentencing court is required, under s 33(1)(a) of the Sentencing Act, to take into account the nature and circumstances of an offence. Clearly, the facts are an important part of this consideration and I have already set them out above (at [10]-[15]).
It is also very important to have regard to the maximum penalties prescribed for the offences. As the High Court pointed out in Gilson v The Queen (1991) 172 CLR 353 at 364:
Prima facie the seriousness of the offence will be measured by the maximum penalty which the law attaches to it.
The Court went on to point out, however, that the circumstances of the case may displace the prima facie approach. This is also, in part, recognised in s 33(1)(za) of the Sentencing Act, which requires the sentencing court to have regard to current sentencing practice. Part of this is to be found in the principles enunciated by the courts over the years as to the relevant factors that are to be considered when assessing the seriousness of the offence actually committed: see R v Davis [2021] ACTSC 335.
The first offence, the most serious one, is that of dishonestly driving a stolen motor vehicle. This is, under s 318(2) of the Criminal Code 2002 (ACT), a criminal offence punishable by a maximum penalty of 5 years imprisonment, or a fine of $80,000, or both. The offence under s 318(2) can be committed either by driving a stolen motor vehicle or by riding in it.
There has been some judicial consideration of various forms of the offence. Section 318(1) creates the offence of dishonestly taking a motor vehicle without the owner's consent, but the maximum penalty is the same. The question is whether one version of the offence is more serious than another: see the discussion in R v Massey (No 1) [2020] ACTSC 256 at [56].
Again, as I there mentioned, I have not done any particular research on the issue, but the original taker is, of course, the thief and hence the subsequent driver has some similarity with the receiver of stolen goods. The similarity is by no means complete, but close enough to serve as some analogy. Indeed, that may be the reason that the maximum penalties are the same. The principle is that receivers are a significant motivator for thieves, hence the similarity of the seriousness between the two offences: see Saga v Reid and Collett at [56].
This is also a relevant issue as to the sentence to be imposed, which was raised by the Crown, who pointed out in submissions that the last similar offence committed by Mr Reid was in 2015, when he was convicted of dishonestly taking a motor vehicle without the owner's consent and sentenced to nine months imprisonment. It was submitted that this was relevant to the length of the sentence to be imposed for the current offence.
I have considered some of the relevant factors relating to this offence in R v Massey (No 1) at [55] and R v Crawford (No 1) [2020] ACTSC 245 at [38]-[39]. There is no doubt that dishonestly driving a stolen motor vehicle is more serious than riding in it: see R v Thompson [2017] ACTSC 141, R v Massey [2018] ACTSC 221 at [9], R v NN [2018 ACTSC 43 at [19], R v KN [2019] ACTSC 305 at [4]. The length of time during which it was being driven is relevant; the longer, the more serious the offence is. Unless there is evidence to the contrary, such as by the offender abandoning the vehicle or otherwise, it may be also assumed, especially if intercepted by police, that the offender would have kept driving until detected: see R v Massey (No 1) at [57].
Also relevant is whether the vehicle has been damaged while in use (R v Lock [2016] ACTSC 319 at [13]) and whether it was used in or for the commission of another offence (R v Morales [2019] ACTSC 88 at [13]). In this case, Mr Reid was first seen while driving early in the morning of 29 December 2020 and then arriving in the Narrabundah residence after 4:00pm. He clearly had charge of the vehicle for at least a large part of the day, though perhaps no more than that. There was no damage done to the vehicle and it was recovered. Apart from the directly associated offences, it was not used to commit other offences, though the minor theft was one that, although associated, was a discrete offence to the others and to the primary offence.
The offence of using a motor vehicle with improper number plates is prohibited by s 22 of the Road Transport (Vehicle Registration) Act 1999 (ACT) and attracts a maximum penalty of a fine of $3,200. It is an offence that must be taken seriously as a number plate is important to both the criminal and civil law as an identifier of the vehicle and often the driver and owner. There is also an element of dishonesty involved in the offence.
Minor theft is made an offence by s 321 of the Criminal Code which prescribes a maximum penalty of 6 months imprisonment or a fine of $8,000, or both. The theft was of number plates which, while having little monetary value, would, by their loss, cause the owner of the van some significant inconvenience.
Possessing ammunition without authorisation is against s 249 of the Firearms Act 1996 (ACT) and renders Mr Reid liable to a maximum fine of $1,600. The maximum penalty shows the relative lack of seriousness of the offence. The quantity of ammunition is a highly relevant factor: see R v Zdravkovic (No 3) [2020 ACTSC 258 at [12]. It was accepted that the amount of ammunition was 'relatively small' and there was no obvious weapon that could have discharged any of it.
Subjective circumstances
Mr Reid is a 36 year old Wiradjuri man, the third of his parents' four children. He had a happy childhood until his parents separated when he was 12 or 14. He was not a good historian. He spent the next years of his childhood between his separated parents, going to Sydney for two years with his father, then returning to Canberra to live with his mother. This continued until he was 16 or 17. His father died in 2017, 2018 or 2019 - various dates were suggested in the material. Mr Reid continues to feel grief from this loss.
He continues to have a good relationship with his mother, with whom he has lived and who gave evidence before me. He also has good relations with his siblings. He went to school in Canberra and Sydney, leaving high school at year 10. He then became a part-time steel fixer and a painter, but has limited continuous employment, working mostly in casual jobs. He said he did some steady work for four years, about the time his son was born, but the history is unclear. He last worked in 2019.
Mr Reid has had two significant relationships. The first lasted for 11 years and a daughter was born of the union. He has a limited relationship with that daughter, who has moved to New Zealand with her mother. The second relationship lasted for eight years and a son was born to them. He has a good relationship with this ex-partner but limited contact with his son, though he wishes to develop it.
He began using drugs in his teenage years. He first drank alcohol when he was 15 years old and increased his intake until he drank regularly by his twenties, once or twice a week. He drank more when he was depressed. Indeed, prior to his recent arrest he was drinking about 18 standard drinks every few days, though he did not see this as problematic. He began using cannabis about the same time, though it may have been a couple of years later. Soon after, he began consuming heroin and started doing so quite regularly since then, resuming use when he was released from custody each time.
He used methamphetamine first in his late twenties, more frequently when the supply of heroin was limited and especially when the supply of methamphetamine was plentiful. Prior to his recent arrest, he was using three or four points every second or third day. He has used amphetamines occasionally and, for a while, used cocaine regularly on a weekly or fortnightly basis until about three years ago. He has also used some non-prescribed opiates and non-prescribed benzodiazepines, but not for any long periods.
Mr Reid has been assessed as likely to have a severe substance use disorder, primarily with heroin and methamphetamine, but also with polysubstance use.
He has had some drug and alcohol treatment. He was prescribed methadone about two years ago, but has now been prescribed Buvidal. He has participated in rehabilitation programs at Odyssey House, New South Wales, and Wayback Ltd, New South Wales, and began but did not complete the program at a facility in Kempsey, New South Wales. He has had some counselling, but found it difficult to open up to the counsellor.
He has had a substantial and worrying criminal history. Since 1998, he has 97 offences on his record in both the ACT and New South Wales. Of these, 41 were offences of dishonesty, including aggravated burglary, burglary and attempted burglary offences.
So far as concerns prior offences on his record similar to the current offences, he has four offences of dishonestly taking a motor vehicle without the owner's consent, four offences of dishonestly driving a stolen motor vehicle and six offences of minor theft. He has many traffic offences on his record, including six offences of driving while unlicensed or disqualified or similar.
On his record are four offences of possessing a knife and one of possessing an offensive weapon. There are also seven offences of violence.
In connection with these offences, he has breached court orders on at least five occasions that are recorded and his parole orders have been revoked on four occasions. These are worrying matters.
He has spent little time in the community. Since 2009, he has served 19 periods of imprisonment and the longest time he has spent in the community before being imprisoned for further offending, breaching parole orders or Good Behaviour Orders, is nine months in 2017 and 2018.
Mr Reid has lived with his mother, Ms Condon, for much of the time when in the community. Despite some challenges that she faced when he did so, she was prepared to have him live with her if I were to make a Treatment Order and release him into the community. This approach would require the imposition of a curfew, as one of the stressors for Ms Condon was that 'he was just coming in and out, in and out and he would come home, you know, late at night'. It broke her sleep which she found difficult enough. She was also concerned about his intoxication. She had discussed these issues with him while he was in custody and, on the basis of what he said and the proposed terms of any Treatment Order, especially a curfew and the mandated abstinence, she was happy to have him live with her.
It became clear under cross-examination that, while Mr Reid had rather ignored her wishes in the past, Ms Condon was now satisfied that, with appropriate constraints, it would be less stressful for her now if he were to live with her. She also said that if a curfew was imposed, she would be prepared to report breaches of it to the police, stating 'I'd have to ring the cops'. She had done this before. The police would also enforce the curfew by visiting from time to time.
Mr Reid explained to the author of the Alcohol and Drug Services Suitability Assessment that he committed these offences because he was under the influence of drugs.
Sentencing practice
Section 33(1) of the Sentencing Act sets out the matters that, so far as it knows them, must be considered by a sentencing court. This includes, as such a matter, current sentencing practice: s 33(1)(za). Some of that will include the principles applied by the courts to determine how serious the particular version of the offence is, as I have done above (at [21]-[32]).
In addition, it is helpful for the Court to have an indication of the collective wisdom of sentencing judges, including courts of appeal: see R v Oliver (1980) 7 A Crim R 174 at 177. This may be provided by comparable cases, suggested by counsel, as decided by other judges, especially if current. It is not that this sets boundaries or a permissible range, but can provide a yardstick against which a proposed sentence is to be compared and inform the Court: see R v Mathews [2020] ACTSC 364 at [44]-[45].
Another source of information can be sentencing statistics, such as those in the ACT Sentencing Database. This has some significant limitations which are regrettable.
While the sentences on the Database are up to date until 30 November 2020, they do not give details about many of the factors that are relevant to the seriousness of the offence so as to identify the way in which the sentence has been constructed. These include circumstances of the offence, a prior criminal record of the offender or many of the factors that are peculiarly relevant to the particular offence.
Further, very regrettably, many of the sentencing remarks are not available through the Sentencing Database. Though these would likely be preserved in the Supreme Court library, they are difficult to access in the circumstances.
Nevertheless, such statistics can be of assistance but need to be considered with care: see R v Horne [2017] ACTSC 36 at [49]-[53]. I will apply that approach.
I have considered these matters in R v Massey (No 1) and have regard to what I there said. In addition, the Crown referred to the decision of Williams and Connor [2019] ACTSC 184 at [23]-[24], where Mossop J had analysed the sentencing statistics from the ACT Sentencing Database for offences under s 318 of the Criminal Code. His Honour said:
So far as the sentencing statistics were concerned, the appellant submitted that for sentences imposed in the ACT Magistrates Court, 90 per cent of cases resulted in the imposition of a term of imprisonment with 30 per cent of those being fully or partially suspended. Where imprisonment was imposed, 54 per cent of the cases were for a term of six months or less, 35 per cent were between six and 12 months, only 6 per cent of offenders received more than 15 months' imprisonment. Statistics from the Supreme Court were also provided which indicated 79 per cent of terms of imprisonment imposed were 12 months or less, 9.6 per cent were between 12 and 18 months.
Reference was made also to R v Booth [2017] ACTSC 191, R v Bright [2017] ACTSC 328, and R v Stretton [2017] ACTSC 313.
In R v Booth, a sentence of four months imprisonment for the offence of dishonestly driving a motor vehicle without the owner’s consent was imposed for a relatively short drive from Turner to Braddon, to Ainslie Village and then to Civic. Mr Booth was, at the time of the offending, subject to a Good Behaviour Order but the offence was regarded as at 'the lowest level of seriousness'. While Mr Booth had a significant criminal history, he did not seem to have committed offences of dishonestly dealing with motor vehicles, though there were thefts and minor thefts also recorded.
In R v Bright, Mr Bright was charged with two counts of driving a stolen motor vehicle as well as five other offences, including two offences of aggravated burglary and one of dishonestly taking a motor vehicle without the owner's consent. The motor vehicle was used in the commission of the other offences. He had a significant criminal record but apparently no offences for this particular offence. Mr Bright was charged with dishonestly riding in a stolen motor vehicle, a less serious offence than that with which Mr Reid is charged. He was sentenced to seven months imprisonment for each of the relevant offences.
In the matter of R v Stretton, two offences of dishonestly driving a stolen motor vehicle were involved, as well as a number of other offences. These offences involved two different uses, the evidence of which was that they were driven for relatively short periods. No other offences appear to have been committed when using the motor vehicles. One of the cars was burnt out and the other returned to the owner. He had a record of one car theft, but apparently not much else. He was sentenced to eight months imprisonment for each offence.
There are differences and similarities between these cases and the offences committed by, and the personal circumstances of, Mr Reid, as well as with the sentences imposed by the Court on the above drivers or offenders. In my view, there are, in various but specific ways, circumstances that render Mr Reid’s offences somewhat more serious, including the circumstances of Mr Reid, especially with his prior criminal record, which is somewhat more significant.
In the assessment of the seriousness of the offences, I note that Mr Reid has earlier offences for the same or similar offending (at [41]). In 2016, he was sentenced to nine months imprisonment for dishonestly taking a motor vehicle without consent. In 2008, he was convicted of dishonestly driving a motor vehicle and sentenced to a few days over nine months imprisonment. Earlier in 2008, he had been convicted of a similar offence committed two years earlier. He had then been sentenced to eight months imprisonment. These sentences inform the sentence to be imposed as, of course, does the maximum penalty.
In the case of minor theft, the statistics are also very approximate, for there is no indication in the Sentencing Database of value of the property stolen. Nevertheless, of 1,618 offences dealt with in the Magistrates Court, 28% of the offences resulted in sentences of full-time imprisonment and nearly 15% of fully or partly suspended sentences. The vast majority of sentences were for 1-3 months imprisonment, but 2% were for periods of 6 months or more.
In this Court, more than 23% of the sentences recorded in the Sentencing Database were for sentences of 7-12 months, but it was not possible to say how many were for 6 months. These statistics are of some interest, but do not provide great assistance to the sentence to be imposed having regard to the absence of value involved, the circumstances of the offence and the record of the offender.
I have been able to find only one case in which the sentencing remarks relating to possession of ammunition are recorded, but it is of little assistance for this case. In the ACT Magistrates Court, fines of between $50 and $2,000 were imposed, the majority being of between $150 and $350. Good Behaviour Orders of between 3 and 18 months were also imposed, 40% of which were for 12 months.
Consideration
The purposes of sentencing, prescribed by the legislature, are set out in s 7 of the Sentencing Act and a sentencing court must have regard to them.
While these offences are serious, they are not the most serious in the criminal calendar. They do, however, deserve some appropriate level of punishment. The need for compliance with the rules that the offences breach requires an element, also, of general deterrence, as does the continued disobedience of Mr Reid, marked by his repeat offending.
So far as the principal offence is concerned, namely the driving in a stolen motor vehicle, it also requires some specific deterrence, given the serious criminal history of Mr Reid, including as a repeat offender.
There are really only two personal victims; the owners of the vehicles, being the owner of the van from which the number plates were stolen and the owner of the Mitsubishi sedan Mr Reid was driving. Their interests should be vindicated.
The protection of the community plays a lesser role in this sentencing exercise but Mr Reid should be held accountable for his breaches of the law and his conduct denounced.
Mr Reid pleaded guilty in the Magistrates Court. It was a relatively early plea. I was not informed of whether it was entered prior to delivery of the Prosecution Brief of Evidence, though that may be so because no plea of not guilty was entered. Thus, the plea attracts a reduction in sentence under s 35 of the Sentencing Act. Nevertheless, the evidence against Mr Reid was very, very strong - perhaps overwhelming - thus, the discount needs some moderation, though it still had a significant utilitarian value given the timing of it.
I take into account the facts as I have found them, that are set out above (at [10]-[15]), and which provide the basis and circumstances of the offending. I take into account the nature and seriousness of the offences themselves, the personal circumstances of Mr Reid, as I have found them, especially his criminal history, the age at which he first used alcohol and other drugs and the strength of his dependence, together with current sentencing practice.
I accept that Mr Reid has expressed some insight into the causes of his offending and a wish to address his drug dependence and reunite with his family. Together with his pleas of guilty, this is some evidence of remorse, though he has not expressed any regret for the harm done to the victims of his offences.
I note that Mr Reid has spent a significant period in Pre-Sentence Custody. I consider that this period, since 29 December 2020, should be taken into account, in accordance with s 63(2) of the Sentencing Act, by backdating the sentence to that date. I accept, too, that Mr Reid has complied with the process for preparing the Suitability Assessments. There are, of course, a number of sentences to be imposed.
I apply the principles established by the courts for addressing such sentencing exercises.
Thus, I have fixed appropriate penalties for each offence and, for that purpose, have carefully considered the length of them in the light of all relevant factors to ensure that they are just and adequate. I must also ensure that he is not punished twice.
I have then considered whether any of the sentences should be wholly or partly concurrent because, for example, they are part of the same course of conduct or otherwise. To a limited extent, that applies to the offence of minor theft and the offence of dishonestly driving a stolen motor vehicle, which form part of a course of conduct, but, in my view, only to a limited extent.
Concurrency also applies where there are common elements and, to a limited degree, that applies to the offence of driving whilst disqualified, the offence of minor theft and the offence of dishonestly driving a stolen motor vehicle, which are also part of the same course of conduct.
I have considered the principle of totality and, to that end, have assessed the length of the total sentence, in the light of the total criminality, to ensure that the sentence is both adequate to reflect that criminality, but not more than that, and that the total sentence is not excessive and will leave open the realistic prospect of reform and hope for Mr Reid to take an effective role in the community and with his family upon release.
I am satisfied, however, that no other sentence than a sentence of imprisonment is appropriate for the total criminality committed by Mr Reid in his offending.
Sentence
[His Honour then spoke directly to the offender]
Mr Reid, please stand.
I convict you of dishonestly riding in the stolen motor vehicle and sentence you to 12 months imprisonment, to commence on 29 December 2020 to take into account Pre-Sentence Custody. Had you not pleaded guilty, I would have sentenced you to 15 months imprisonment.
I convict you of using a motor vehicle with improperly issued number plates and require you to sign an undertaking to comply with the offender's Good Behaviour Obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of six months, to commence on 21 April 2021.
I convict you of minor theft and sentence you to five months imprisonment, to commence on 29 November 2021. That is to be cumulative as to four months on the sentence for dishonestly driving a stolen motor vehicle. Had you not pleaded guilty, I would have sentenced you to six months imprisonment.
I convict you of possessing ammunition and I fine you $200 and give you 12 months to pay.
Mr Reid, please be seated.
I have now sentenced Mr Reid to a total of 16 months and 8 days imprisonment and need to consider whether, as he has sought, I should make a Treatment Order.
The sentence complies with the limits expressed in s 12A of the Sentencing Act and, for the sentence of dishonestly driving a stolen motor vehicle, to imprisonment for one year which meets the permissible minimum.
I am also satisfied that Mr Reid is not subject to any other sentencing order within the meaning of s 12A of the Sentencing Act.
I am further satisfied that he will be able to reside with his mother in Canberra for at least the next 16 months and 8 days.
I am satisfied that Mr Reid has a dependency on illicit drugs, specifically heroin and methamphetamine, and that this substantially contributed to his offending conduct.
Accordingly, I am satisfied that Mr Reid is eligible to be subject of a Treatment Order.
I have carefully read and considered the comprehensive and thoughtfully prepared Suitability Assessments referred to earlier (at [6]). They have been expertly prepared and thoroughly address the relevant issues. I have also carefully considered the recommendations.
In brief, the Suitability Assessment prepared by the Alcohol and Drug Service recommend that a Treatment Order be made, as does the Cultural Assessment. The Suitability Assessment by ACT Corrective Services, however, recommends that a Treatment Order should not be made. It refers to the substantial non-compliance of Mr Reid with community based orders in the past, as well as the assessment of to the proposed accommodation. The Crown, in its submissions, have taken the same view.
The Crown considered that the sentence for the offence of dishonestly driving a stolen motor vehicle would not fall within the permissible range. I have already addressed that and the sentence as imposed does fall within that range.
The Crown also submitted that Mr Reid had earlier opportunities to address his rehabilitation and had not taken them up. This applies most recently to a sentence imposed by Mossop J in R v Reid [2018] ACTSC 368, when Mr Reid sought an opportunity to attend a residential drug rehabilitation program at Oolong House in Nowra, New South Wales. His Honour (at [31]) declined to provide this opportunity, but made a short non-parole period to permit Mr Reid to take this up when on parole. Mr Reid did not do so.
There are, however, some differences between that and the current situation. While it is not to Mr Reid's credit that he did not take up the opportunity on parole to attend the Oolong House program, there is no suggestion that it was suggested or even mandated by the Sentence Administration Board when granting his parole. While his Honour's remarks might not have amounted to a formal recommendation to the Sentence Administration Board, I understand that the Board would have had these sentencing remarks available to it.
While that is no justification, it is easy for a person subject to drug dependency, on leaving prison, to fall back into the company of former associates and take on the old lifestyle without encouragement or support to do otherwise. His commitment to reform was clearly not strong enough to overcome that, but I do not accept that it was a fake assertion or not a real wish by him. In this case, Mr Reid's departure from custody will be structured and he will be required to participate in rehabilitation.
I am satisfied that this is a relevant difference, reinforced by his recent reincarceration, which impacted on his thinking about the future as expressed in his evidence to me. I am satisfied that this past behaviour does not, in this case, mean a Treatment Order should not necessarily be made. Sometimes the impetus must come externally, though the offender must ultimately take up the rehabilitation options himself or herself.
The Crown also adopted the concerns expressed by ACT Corrective Services as to the unsatisfactory nature of the proposed accommodation he would have access to during the Treatment Order. This was based on a visit that an officer, or officers, of ACT Corrective Services made to Ms Condon's residence. There was an unpleasant interaction when they arrived but I do not consider that a major reason for finding it unsuitable accommodation.
There were three primary concerns: the effect on Ms Condon and her mental health; the fact that, while there in the past, Mr Reid would regularly breach community based orders; the premises, ACT Police noted, were “adversely recorded with most incidents relating to Mr Reid and his antisocial behaviours”.
I heard from Ms Condon, who gave helpful evidence. She acknowledged the stress and anxiety Mr Reid's behaviour had caused her. She considered that a curfew would go a long way to address that as a major problem for her was his coming and going late at night and early in the morning. She was prepared to have him live with her now.
Additionally, she agreed that she could ring police and, if Mr Reid breached the curfew, she would do so. She had contacted police about him before but, of course, where there is no curfew, his behaviour at night is not something of their concern.
As to the note of the residence in ACT police records, it seems to relate to Mr Reid himself and not to other persons, so it is not as if Mr Reid would be returning to a place where antisocial associates may pressure or encourage him to fail to comply with any Treatment Order or to commit further offences.
ACT Corrective Services were also concerned that Ms Condon failed to advise the officer, or officers, as to who was living in the house and who greeted them. This is not desirable, but it appears that it was Mr Reid's brother and I consider that this is not, of itself such a problem as to render a Treatment Order unsuitable.
Finally, the Crown submitted that Mr Reid's history denied him the opportunity for a Treatment Order. I do not accept that argument. The experience of this Court is that persons who are dependent on illicit drugs do reach a stage where they effectively grow out of the satisfaction they have had with the lifestyle their dependency brings. If a long and depressing criminal history was a bar to a Treatment Order, such people would be denied the opportunity such an Order brings for reform and deny the community the protection that such reform can bring it – the very people who the regime is designed to assist.
A long criminal history shows, in itself, that continued imprisonment does not necessarily deter or prevent re-offending. While some offences, such as serious violence, sexual assault or similar offences, must require a level of punishment whatever the prospects of reform, the current offences do not fit into this category and, indeed, the Crown's position was that they did not even justify a sentence as long as 12 months imprisonment, but rather something less.
The relevant offences were, in that sense, less serious than many of the offences that Mr Reid had recently committed. While it is commonly said that past behaviour is the best predictor of future behaviour, the evidence does not necessarily support this, as I have noted above (at (4]). Even so far as it applies, it tends to apply over short intervals and when the anticipated situation is essentially the same as the past situation that activated the behaviour.
Mr Reid has not previously been subject to the quite structured regime of a Treatment Order with judicial supervision. I am satisfied that, combined with his evidence that he does see a better future for himself which he wants, that he is “sick” of being in prison and that he wants to connect with his children, all of which sufficiently distinguish the past situation to justify an opportunity such as a Treatment Order will give to him and to the community.
There is, also, the fact that he did succeed, to an extent, in his last period of residential rehabilitation, though the death of his father led to a relapse. A structured program of the kind available on a Treatment Order will address relapse prevention, hopefully sufficiently.
I accept that Mr Reid sees a need to change and that now may well be the opportunity to enable him to do so; while his offending is less serious than before, he may be given an opportunity to gain the skills to live a prosocial life in the community and the community may be protected from his antisocial behaviour in the future. He has recognised the stress he places on his mother and it seems he is ready to address that, too.
I accept, as I have pointed out in R v Davis, that there is no guarantee of success, but this may be the right moment and the best chance for Mr Reid and the community.
Accordingly, I propose to make a Treatment Order.
I have not identified any indicators of unsuitability for a Treatment Order, as set out in Table 46K of the Sentencing Act, so far as they would require such an Order not to be made.
Finally, I note that, although I have commenced the sentence of imprisonment imposed on Mr Reid prior to today and that, were a Treatment Order to be made, the sentence would have to be partially suspended from today because he has already served part of it in custody. I am satisfied, based on what I said in R v Crawford (No 1) at [91]-[111] that this does not preclude the making of a Treatment Order.
Accordingly, I am satisfied that Mr Reid is suitable for a Treatment Order and that there is no reason not to make one and it will have a significant benefit.
I am therefore satisfied that it is appropriate that I make one and I will do so.
Mr Reid, please stand.
Drug and Alcohol Treatment Order
[His Honour then spoke directly to the offender again]
I make a Drug And Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act2005 (ACT) for 12 months and 8 days from today, 21 April 2021, to 28 April 2022 for the offence of dishonestly driving a stolen motor vehicle, the primary offence.
I extend the Order to the offence of minor theft being an associated offence.
I hereby incorporate the convictions and sentences for the primary offence and the associated offence into the Drug and Alcohol Treatment Order as the Custodial Part of the Order.
I suspend the total sentence of 16 months under s 80W of the Crimes (Sentencing) Act2005 (ACT) from today, 21 April 2021, to 28 April 2022.
For the Treatment and Supervision Part of Drug and Alcohol Treatment Order I make the following conditions for you:
(a) I require you to comply with the core conditions of a Drug And Alcohol Treatment Order set out in s 80Y of the Crimes (Sentencing) Act2005 (ACT);
(b) I direct you to reside at the nominated residence for the duration of the Drug and Alcohol Treatment Order and to remain at that place of residence from 7:00pm each day until 7:00am the next day, except in case of a medical emergency, and to present yourself at the door of the residence to a police officer who requests it between those hours;
(c) I direct you to undergo a program of treatment and counselling and any urinalysis, case management and other program as may be required by any member of the treatment order team or by order of the court from time to time;
(d) I direct you to comply with any direction of the Court from time to time about attendance at Court in person or by electronic means.
I direct you to attend Court on 23 April 2021 at 1130am in person.
Mr Reid, that is a long sentence. You have been around long enough to probably know most of what I said and understand it, but I am obliged to explain to you what I have done.
Basically, I have said that, although these are not the most serious of criminal offences, they are serious - they are a breach of the law and they impact upon the community, even though you might not see it in the way you are going about the committing of the offences.
It is not as if they inflict immediate violence on people and so on, but they are serious offences and I have said that, in effect, they are worth 12 months and a few days in prison to fit in with the legislation.
On this occasion, however, I have accepted your wish to rehabilitate. You have made that wish clear to courts many times before and done little about it. You have, on occasion, had some success but then you have fallen off the wagon.
This is a more structured program. You will see a lot of me in the coming months because you will have to report in every week. I will then encourage you, find out what is going on and I will sanction you if things are not going well. That sanction can include putting you back in prison for the balance of the sentence if it really does not work out.
If you are genuine in saying that you have come to the realisation that, at your age, it is about time you grew up, actually took control of your life and did something useful, stop stressing your mother, stop being a burden on the community and stop preying on innocent people, putting them at risk and danger, then this Order will help you.
You can do it and hopefully with the commitment to your mother but also the commitment to your family. You are never going to reconnect with your daughter or your son unless you actually start working on this, and now is your opportunity.
If you are genuine about it, this Court will support you. If you are not, off you go back to goal and that lifestyle where you will have to work it out yourself.
Now, there are some conditions and structures. You have got to obey what the Treatment Team says. They will have a program. They have already got a Case Plan and that will be set out before you and you have to start counselling and all the rest of it. If you do not do it, then you will be punished for it. If you do it, you will find, as many people have in this program, that it will help you come to terms with your dependency, see a better life and take control of your own life and start to do something useful for yourself, your family, especially your mother and the community.
One of the really important things in this program is to be honest. That can be tough because when you are honest, you are also vulnerable, and you need to recognise your own failures. We all have to do that. I made mistakes in this sentence and I had to correct them and own up and so on. We have to be honest and that makes us vulnerable but, in the long run, that vulnerability makes us stronger and that honesty is a key part of that process.
You have got a curfew because your mother is not comfortable about you nicking out late at night. It is a big curfew, 7:00pm to 7:00am, but you can cope with that. Get to know your mother. Get some sleep. That is important too, because the programs will be intense and you need to put all your energy into them.
If the police come knocking, you have got to present yourself. If you do not, that is a breach of the Order and a breach of the Order can lead to its cancellation, meaning you will have to go back to prison. I do not want to say this as a threat to you, but you need to understand the reality of it all.
I am afraid I am not going to, and I probably cannot tell the police when to come or when not to come. Obviously, if I did that, I would have to do that in open Court and then you would just be there on those days and decamp at the times when you should not do so. That means the police can come at any time, even 2:00am. Now, that is going to be stressful for your mother, but until we can be satisfied that you are on the straight and narrow track, that is what is going to happen from time to time.
This is an opportunity. The Crown, very properly and understandably, said that ‘you had the chance before, you are still offending, they are serious offences, you are too stuck in your ways, you are not going to make it, you have breached community orders before, you do not turn up to appointments, you do not do the right thing'. You have a final opportunity here.
You will see me every week for a while and then, if you can be trusted, a little more infrequently and so on. If things are going wrong, I can take action and I will.
It will be hard. There will be bumps in the road. You have been dependent on drugs and using them and in this lifestyle for a long time. Now is your opportunity, but it is hard to change behaviour. It is hard to confront yourself. It is hard to do the right thing. With the help of some very expert and committed people, however, you will hopefully be able to do it.
Connecting more deeply with your own culture is also key to your healing and affirming in your journey of recovery.
Together with all that assistance, your commitment and your strength, you can do it. All I can do is wish you the best of luck. I will see you on Friday.
Before they release you from custody, you will have to sign this Order, to sign that you have understood what has been said and you accept it and what it requires of you. Your counsel, very experienced counsel, will explain it to you so you understand what you are getting yourself in for.
| I certify that the preceding one hundred and forty-one [141] numbered paragraphs are a true copy of the reasons for Sentence Judgment of his Honour Acting Justice Refshauge Associate: L Ireland Date: 28 February 2022 |
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