R v Rootsey
[2015] ACTSC 353
•29 October 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Rootsey |
Citation: | [2015] ACTSC 353 |
Hearing Date: | 29 October 2015 |
DecisionDate: | 29 October 2015 |
Before: | Penfold J |
Decision: | See [21] and [22] below |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offender in breach of good behaviour order associated with suspension of two-year term of imprisonment for sexual intercourse with person under 16 – breaches constituted by drug-driving, drink-driving, assault and assault occasioning actual bodily harm – no new sexual offending – indications that offender making good progress with rehabilitation since breaches – risks of full-time custody interfering with protective factors such as relationship, accommodation and employment – offender re-sentenced and further good behaviour order made. |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), s 110 |
Cases Cited: | R v Rootsey, SCC193 of 2012, Penfold J, 23 August 2013 |
Parties: | The Queen (Crown) Harley Rootsey (Offender) |
Representation: | Counsel Ms K Mackenzie (Crown) Mr T Sharman (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Lynch (Offender) | |
File Number: | SCC 193 of 2012 |
Introduction
In August 2013 I sentenced Harley Rootsey, for one offence of sexual intercourse with a person under the age of 16, to imprisonment for two years. He served 13 months of that sentence, divided almost equally between pre-sentence full-time custody and periodic detention, and completed the periodic detention in May 2014. At that point, the remainder of his sentence, 11 months, was suspended, and I made a good behaviour order to run for two years from the date of sentence, 24 August 2013, with a supervision condition and a requirement that Mr Rootsey, if assessed as suitable, undertake the Adult Sex Offenders Program.
Background
The offence involved sexual intercourse with a 13-year-old girl staying overnight in the house where Mr Rootsey, then aged 20, was living with a former foster family. The victim, although not legally able to consent, was a willing participant. Both she and Mr Rootsey claimed to have been misled about the other's age, Mr Rootsey thinking she was older, and his victim thinking Mr Rootsey was younger, than was the case.
The matter came to light when the victim discovered she was pregnant; the pregnancy was subsequently terminated.
Mr Rootsey's childhood and adolescence had been disrupted and distressing after his mother was killed in a car accident in which Mr Rootsey himself was badly injured. He lived in a series of foster homes and refuges, losing contact with his brothers. A meeting with his father, when Mr Rootsey was 20, revealed that his father maintained a tendency to alcohol-fuelled violence, and there has been little contact since.
When I sentenced Mr Rootsey in 2013 (R v Rootsey, SCC193 of 2012, Penfold J, 23 August 2013), I noted that his criminal history was long, but that:
much of it involves traffic offences, and there are two common assaults and two damage property offences, all of which, judging from the penalties imposed, seemed to have been relatively minor examples of the relevant offences. There was no prior sexual offending.
Breaches of good behaviour order
Since then, Mr Rootsey has breached his good behaviour order by re-offending on several occasions:
(a)on 21 December 2013, so not quite four months after he was sentenced, being a repeat offender, he committed a drug-driving offence, the drug being methylamphetamine;
(b)on 10 April 2014, being a repeat offender, he committed a drink-driving offence (returning a reading of 0.109, a Level 3 offence); and
(c)on 12 November 2014, he assaulted two of his brothers; one of the assaults occasioned actual bodily harm.
Mr Rootsey was sentenced in the Magistrates Court as follows:
(a)for the drug-driving offence, to a 12-month good behaviour order running from 3 September 2014 and to a 12-month licence disqualification;
(b)for the drink-driving offence, to an 18-month good behaviour order running from 3 September 2014 and to a further licence disqualification;
(c)for the common assault, to a 12-month good behaviour order from 10 August 2015; and
(d)for the assault occasioning actual bodily harm, to five months imprisonment, fully suspended subject to a 12-month good behaviour order from 10 August 2015.
The two assaults also put Mr Rootsey in breach of the good behaviour orders made in relation to the driving offences, but that is not a matter to be dealt with in this court.
The facts of the driving offences and the two assaults were in evidence before me, and I have taken account of that material.
The breaches
It is of particular concern that in relation to the first offence, the drug-driving offence, Mr Rootsey tried to blame his passengers, who he said were smoking methylamphetamine, for the reading returned by his test. Medical evidence was that he could not have achieved the recorded level through passive smoking.
The assaults were committed after Mr Rootsey, who had been drinking alcohol for about five hours, became involved in an argument with his partner, in the presence of her two young children. His two brothers intervened in the argument, pointing out the presence of the children, and an altercation then began between the three men, in the course of which Mr Rootsey, apparently accidently, broke a metal letterbox and post off its concrete base, and then, apparently deliberately, hit both his brothers on the head with the letterbox.
Other evidence
Also before me in evidence were updated pre-sentence and CADAS reports from earlier proceedings since my original sentencing. Although the reports from 2014 included a number of negative comments about Mr Rootsey, the most recent reports provided a generally positive assessment of his current position and his future. For instance, they indicate:
(a)that his current relationship with his partner is satisfactory;
(b)that they are living with his partner's parents and saving money with a view to buying their own home;
(c)that Mr Rootsey has ongoing employment;
(d)that he claims to have stopped seeing associates who are negative influences on him;
(e)that he is using little or no alcohol and no illicit substances;
(f)that his claims in relation to abstinence from illicit substances were supported by a drug screening test conducted as recently as 10 October 2015;
(g)that Mr Rootsey's mental health appears to be stable;
(h)that he was engaged in regular counselling until August 2015 and that he is currently on a waiting list for further counselling from a community-based service; and
(i)finally, that his current risk of general offending is now assessed as low-medium, and that he has accepted counselling aimed at reducing his risk of further sexual offending; it seems that this was the outcome of my original order that he should be assessed for the Adult Sex Offenders Program.
It is appropriate to note at this point that none of Mr Rootsey's subsequent offending appears to have had any sexual aspect to it, and that this is not particularly surprising having regard to the circumstances of his sexual offending as already described.
I mention also that although the prosecutor is correct in referring to Mr Rootsey's claim that he was affected by alcohol and illicit drugs at the time of the sexual offence, he has, as far as I know, always maintained that the sexual activity would not have taken place had he known that the victim was under age; that is, it cannot be said that in failing to address his substance abuse as energetically as he could have, he has knowingly failed to address a general risk factor for further sexual offending.
The most recent pre-sentence report also notes the satisfactory completion of 104 hours of community service work, apparently imposed as part of the 3 September 2014 sentencing for the driving offences; that sentence was confirmed by Mr Rootsey's counsel, but the 104 hours community service penalty is not mentioned in the criminal history.
Options for dealing with the breaches
Under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT), having found that Mr Rootsey is in breach of the good behaviour order I made, I must cancel that good behaviour order, after which my options are to impose the suspended sentence originally imposed for the offence for which I sentenced Mr Rootsey, or to re-sentence him for that offence. Imposition would involve requiring him to serve some, or possibly even all, of the outstanding part of the suspended sentence.
The prosecutor says that, having regard to Mr Rootsey's re-offending and especially some aspects of it such as the unconvincing attempt to blame the presence of methylamphetamine in his system on passive smoking, which the prosecutor says indicates a continuing unwillingness to take responsibility for his own offending, a further sentence of imprisonment is required. However, the prosecutor says that she is not in a position to make further submissions about how that should be served.
It is more than unfortunate that Mr Rootsey has on three separate occasions breached the good behaviour order I made. However, as already noted, none of those breaches suggest any risk of Mr Rootsey engaging in further sexual offending nor, given the circumstances of the new offences, do they seem to indicate any conscious or specific disrespect for the good behaviour order. It seems unlikely that Mr Rootsey, before offending, contemplated the possibility that his actions would put him in breach of the good behaviour order.
Given that the magistrates who sentenced Mr Rootsey for each of the new offences seem to have taken the view that those offences themselves did not require immediate custodial time (albeit that one of them did require a prison sentence), and given the progress that Mr Rootsey appears to have made this year towards rehabilitation, it seems to me that it would be sufficient at this stage to re-sentence Mr Rootsey and again to suspend the outstanding part of his sentence, subject to a slightly shorter good behaviour order. This will mean that Mr Rootsey's recent progress is not jeopardised by imprisonment, which would risk him being left, on release, without a partner, a home or a job, or all three of those fundamental rehabilitation supports. On the other hand, Mr Rootsey will still have 11 months of my sentence hanging over his head, as well as the five months imprisonment imposed and suspended by the magistrate, which should provide some incentive to him to maintain his rehabilitation efforts. If that does not work, then Mr Rootsey is still at real risk of serving up to another 16 months in full-time custody.
Re-sentence
Mr Rootsey, please stand.
First, I cancel the good behaviour order made on 23 August 2013. I note the conviction previously recorded on the charge of sexual intercourse with a person under 16 years, and I sentence you to imprisonment for two years, which is backdated to 29 September 2014 to take account of the time you have already served in respect of that offence by way of pre-sentence custody and periodic detention, and the remaining 11 months of which is suspended with immediate effect.
I now order you to sign a new undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT), this time for 20 months, since last time you managed to remain of good behaviour for almost four months, and this time with security in the amount of $1,000. That does not have to be an immediate cash deposit, but requires you to agree to pay that security if you breach the good behaviour order. The good behaviour order is subject to the conditions that:
(a)for such period not exceeding 20 months as Corrective Services considers necessary:
(i)you accept the supervision of the ACT Corrective Services and obey all reasonable directions of the Director-General, or her delegate; and
(ii)you undertake such counselling, courses, programs or treatments as directed by your supervising officer; and
(b)that within the next two days (that is, tomorrow or Monday) you attend Corrective Services at Eclipse House to arrange your supervision.
You will be given a written copy of the good behaviour order, and it will be read to you by the court officials, but as I'm sure you understand, Mr Rootsey, what it means is that for the next 20 months you need to keep out of trouble. You need to not re-offend, and you need to keep in contact with Corrective Services and obey what your supervisor tells you to do for so much of those 20 months as Corrective Services requires.
That means you've still got 11 months of your prison term for that sexual offence hanging over your head for the next 20 months, as well as the five months imprisonment for the assault occasioning offence that you could also be required to serve in custody if you re-offend in the next 10 months or so.
On the other hand, if you can behave yourself for another 20 months, then you are free of all your current sentences, both those that carry suspended terms of imprisonment and the other good behaviour orders. If you do commit another offence, and I know you understand this, but I have got to say it to you again for all sorts of good reasons, if you do commit another offence in the next 20 months, if you don't comply with your other conditions, or if you don't comply with Corrective Services' directions, you could find yourself back before this court yet again to be re-sentenced, or at least to be dealt with again for the sexual offence, and depending on what kind of breach brought you back next time, you could still find yourself serving some or all of that remaining 11 months in full-time custody. And, as I've pointed out, you've still got the five months from the magistrate as well.
If you have any further questions on that, you might ask Mr Sharman. You may sit down.
| I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: K Duval-Stewart Date: 17 November 2015 |
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