R v SH
[2014] ACTSC 358
•15 December 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v SH |
Citation: | [2014] ACTSC 358 |
Hearing Date: | 15 December 2014 |
DecisionDate: | 15 December 2014 |
Before: | Burns J |
Decision: | See [11] – [14] |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – Breach of Good Behaviour Orders – sexual intercourse with a person under 16 years – failure to report a change of personal details – failing to report for supervision – re-sentenced |
Legislation Cited: | Crimes (Child Sex Offenders) Act 2005 (ACT) |
Parties: | Regina (Crown) SH (Offender) |
Representation: | Counsel Mr Reardon (Crown) Mr Lawton (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Offender) | |
File Numbers: | SCC 164 of 2012; SCC 8 of 2013; SCC 12 of 2014 |
Burns J:
Procedural history
SH, you appear before me today for sentence with respect to breaching Good Behaviour Orders that were imposed by me on 26 February this year. I note that those Good Behaviour Orders were imposed on a breach of earlier Good Behaviour Orders that were imposed by me on 7 June last year. On 7 June 2013, on a charge of sexual intercourse with a person under the age of 16 years, I recorded a conviction and sentenced you to 9 months’ imprisonment (CC2012/5963). On another charge of sexual intercourse with a person under the age of 16 years, I recorded a conviction and sentenced you to 18 months’ imprisonment (CC2012/9042). On that last offence, I took into account a number of additional offences which were listed on a list of additional offences.
The breach which came before me and which I dealt with on 26 February this year involved a failure by you to report a change of your personal details as required under the Crimes (Child Sex Offenders) Act 2005 (ACT) (CC2013/8153). In addition, you had breached the Good Behaviour Orders by failing to report for supervision as required by Corrective Services. On the fresh charge of failing to take all reasonable steps to report a change in your personal details, I recorded a conviction and sentenced you to three months’ imprisonment commencing on 26 February 2014, to be served by way of periodic detention. I note that you completed that sentence of periodic detention.
With respect to the Good Behaviour Orders which I imposed on 7 June 2013, I cancelled those Good Behaviour Orders and re-sentenced you on the charge of sexual intercourse with a person under the age of 16 years (CC2012/5963) to a sentence of nine months’ imprisonment commencing on 26 February this year, of which three months was to be served by way of periodic detention, concurrent with the order for periodic detention that I had imposed on the charge of failing to take all reasonable steps to report a change of your personal details (CC2013/8153).
With respect to the remaining charge of sexual intercourse with a person under 16 years (CC2012/9042), having cancelled your Good Behaviour Order, I imposed a sentence of 18 months’ imprisonment, again commencing on 26 February this year, of which three months was to be served by way of periodic detention concurrent with the sentences of periodic detention that I had imposed in the other matters (CC2012/5963; CC2013/8153). The balance of each of the sentences that I imposed was suspended with further Good Behaviour Orders. You are now before me, as I have said, with respect to a further breach of those Bood Behaviour Orders which I imposed in February of this year.
On 6 November this year, you were convicted in the Magistrates Court of an offence under the Crimes (Child Sex Offenders) Act 2005 (ACT) of failing to report to the Belconnen police station in accordance with your annual reporting obligations. Your obligation, as I understand it, was to report between 31 May 2014 and 1 July 2014. You were spoken to by police on 3 July this year, at which time you admitted that you had not reported as required. Material was put before the Magistrate with a view to mitigating sentence, much of which has been put before me today. The Magistrate sentenced you to three months’ full-time imprisonment commencing on 6 November this year and expiring on 5 February next year.
Offender characteristics and consideration
I take into account the Psychological Progress Report from Douglas Boer, a registered psychologist, dated 24 October this year. There are good and bad things that are referred to in that Report. You have made some progress, I accept, with respect to accepting treatment for your offending behaviour. On the other hand, you have attended late for appointments on several occasions, including one occasion when you were one and a quarter hours late for your appointment, and on other occasions you have apparently not attended at all. Dr Boer opines that part of your problem may be your ongoing use of cannabis. You are apparently a regular and perhaps heavy user of cannabis, although that is not clear.
He expresses the opinion that your unpredictability in terms of attending for appointments may well be a consequence of the use by you of cannabis. If so, in my opinion, that is not particularly mitigatory. It appears that, in fact, that you haven’t really come to grips with the fact that you have been convicted of serious offences and that those offences carry very significant penalties. It also doesn’t appear to have occurred to you that up to this point you’ve been dealt with very leniently and you’ve been given opportunities to demonstrate that you were willing to comply with community based orders.
I take into account the contents of the Pre-Sentence Report which was prepared for 6 November this year and is dated 24 October this year. I also take into account the letter from Aaron Fraser of Max Employment dated 6 November this year which refers to you actively searching for full-time employment. I also note the letter from Youth Connections dated 23 October this year which confirms that you have completed all requirements necessary for a Certificate II in Access 10 qualification.
To a great extent, the sentences that I imposed upon you last year and earlier this year were directed towards giving you an opportunity to rehabilitate yourself without having to serve any sentence of full-time imprisonment. Unfortunately, that just does not seem to have worked. In my opinion, other sentencing considerations such as deterrence and punishment must now be given greater prominence. You have to understand, as I told you in February this year, that failure to comply with sentences imposed in this Court will have real consequences.
Sentence
With respect to the two Good Behaviour Orders that I imposed in February this year, I cancel those Good Behaviour Orders.
On the charge of sexual intercourse with a person under 16 years (CC2012/5963), you will be sentenced to six months’ imprisonment commencing on 6 December this year and expiring on 5 June 2015. With respect to the other charge of sexual intercourse with a person under 16 years (CC2012/9042), you will be sentenced to 15 months’ imprisonment commencing on 6 January 2015 and expiring on 5 April 2016. Taking into account the sentence that was imposed in the Magistrates Court, that means that there is a total sentence of 17 months’ imprisonment.
I am going to set a relatively short non-parole period, firstly because of the fact that this is the first time that you will have served a full-time term of imprisonment; secondly, because I understand you are required to be held in a form of protective custody during the term of your sentence, and I am satisfied that this will mean that a term of imprisonment is more onerous for you than it would be for some other person who is not required to be held in protective custody; and thirdly, because the report from Dr Boer indicates that there are continuing prospects for rehabilitation, if only you begin to take these things seriously.
As such, I will set a non-parole period of six months commencing on the date that you were sentenced by the Magistrate, 6 November 2014, and expiring on 5 May 2015.
| I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 5 January 2015 |
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