R v Ware (No 2)
[2021] ACTSC 360
•24 September 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Ware (No 2) |
Citation: | [2021] ACTSC 360 |
Hearing Date: | 21 September 2021 |
DecisionDate: | 24 September 2021 |
Before: | Refshauge AJ |
Decision: | 1. The Good Behaviour Order made on 7 September 2016 be cancelled and convictions confirmed. 2. Joshua Ware be sentenced to four months imprisonment, to commence on 25 July 2021 and end on 24 November 2021 for damaging property on 10 March 2013. 3. Joshua Ware be sentenced to four months imprisonment, to commence on 25 August 2021 and end on 24 December 2021 for theft between 16 and 19 February 2013. 4. Joshua Ware be sentenced to six months imprisonment, to commence on 25 July 2021 and end on 24 January 2022, for the first of the thefts he committed between 10 and 13 March 2013. 5. Joshua Ware be sentenced to four months imprisonment, to commence on 25 October 2021 and end on 24 February 2022, for the second of the thefts he committed between 10 and 13 March 2013. 6. Joshua Ware be sentenced to six months imprisonment, to commence on 25 October 2021 and end on 24 April 2022, for the third of the thefts he committed between 10 and 13 March 2013. 7. Joshua Ware be sentenced to four months imprisonment, to commence on 25 January 2021 and end on 24 May 2022, for theft on 17 March 2013. 8. Joshua Ware be sentenced to four months imprisonment, to commence on 25 February 2022 and end on 24 June 2022, for the first offence of damaging property between 5 and 8 April 2013. 9. Joshua Ware be sentenced to four months imprisonment, to commence on 25 March 2022 and end on 24 July 2022, for the second offence of damaging property between 5 and 8 April 2013. 10. Joshua Ware be sentenced to four months imprisonment, to commence on 25 April 2022 and end on 24 August 2022, for the second offence of damaging property between 5 and 8 April 2013. 11. Joshua Ware be sentenced to two months imprisonment, to commence on 25 June 2022 and end on 24 August 2022, for the first offence of damaging property between 10 and 13 March 2013. 12. Joshua Ware be sentenced to four months imprisonment, to commence on 25 May 2022 and end on 24 September 2022, for the second offence of damaging property between 10 and 13 March 2013. 13. Joshua Ware be sentenced to four months imprisonment, to commence on 25 June 2022 and end on 24 October 2022, for the first offence of damaging property on 12 March 2013. 14. Joshua Ware be sentenced to two months imprisonment, to commence on 25 September 2022 and end on 24 November 2022, for unlawful possession of goods believed to be stolen on 17 April 2013. 15. Joshua Ware be sentenced to one months imprisonment, to commence on 25 October 2022 and end on 24 November 2022, for possessing cannabis on 17 April 2013. 16. Joshua Ware be sentenced to 12 months imprisonment, to commence on 25 March 2022 and end on 24 March 2023, for burglary between 6 and 8 July 2014. 17. Joshua Ware be sentenced to nine months imprisonment, to commence on 25 August 2022 and end on 24 May 2022, for dishonestly driving a motor vehicle without consent between 6 and 8 July 2014. 18. Joshua Ware be sentenced to nine months imprisonment, to commence on 25 August 2022, and end on 24 May 2022 for theft between 6 and 8 July 2014. 19. Joshua Ware be sentenced to 12 months imprisonment, to commence on 25 September 2022 and end on 24 September 2023, for burglary between 28 and 29 June 2014. 20. Joshua Ware be sentenced to nine months imprisonment, to commence on 25 January 2023 and end on 24 October 2023, for theft between 28 and 29 June 2013. 21. Joshua Ware be sentenced to nine months imprisonment, to commence on 25 February 2023 and end on 24 November 2023, for dishonestly driving a motor vehicle without consent between 7 and 8 July 2014. 22. Joshua Ware be sentenced to 12 months imprisonment, to commence on 15 March 2023 and end on 24 March 2024, for attempted theft between 15 and 16 July 2014. 23. Joshua Ware be sentenced to nine months imprisonment, to commence on 25 May 2023 and end on 24 April 2024, for burglary between 15 and 16 July 2014. 24. Joshua Ware be sentenced to nine months imprisonment, to commence on 25 October 2023 and end on 24 July 2024, for theft between 11 and 12 August 2014 25. Joshua Ware be sentenced to nine months imprisonment, to commence on 25 October 2023 and end on 24 July 2024, for burglary between 11 and 12 August 2014. 26. Joshua Ware be required to sign an undertaking to comply with the offender's good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act until 24 July 2024 with the following conditions: (a) A probation condition that he be under the supervision of the commissioner of ACT Corrective Services or his delegate until 24 July 2024 or such lesser period that the person supervising him considers appropriate and that he obey all reasonable directions that the person supervising him considers appropriate; (b) That he pay the sum of $4,403 to the Registrar of the ACT Supreme Court for loss and expenses to the following persons in the following sums on or before 24 September 2023, to be paid out by the Registrar to those persons at their addresses provided by the Director of Public Prosecutions, namely: (i) Ms Imogen Taylor: $548; (ii) Ms Elizabeth Hampston: $205; (iii) Mr Carmel Chowdry: $3,000; and (iv) Mr Nicholas Love: $650. (c) That he arrange to be assessed for drug treatment or counselling, mental health treatment and grief counselling and, if assessed as suitable, arrange to proceed with such treatment or counselling for the period reasonably considered necessary; and (d) That he attend court at 2:30 pm on 26 November 2021 to report on the progress of any treatment or counselling. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Cancellation of Good Behaviour Order – Resentence – 24 Offences – Damage Property – Theft – Attempted Theft – Unlawful Possession of Stolen Property – Possessing Cannabis – Burglary – Dishonestly Driving a Motor Vehicle without Consent – Drug Dependency – Mental Health – Rehabilitation – Sentences of Imprisonment Imposed – Suspended Sentence – Good Behaviour Order – Reparations – Assessment for Drug Treatment – Assessment for Mental Health Treatment – Return to Court |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), ss 85, 86, 110 Crimes (Sentencing) Act 2005 (ACT), ss 7, 10, 12A |
Cases Cited: | Ledson v Taylor [2010] ACTSC 42; 239 FLR 184 R v Kelly (No 2) [2021] ACTSC 253 |
Parties: | The Queen (Crown) Joshua Ware (Offender) |
Representation: | Counsel M Dyason (Crown) K Bolas (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kim Bolas Criminal Law (Offender) | |
File Numbers: | SCC 60 of 2013 SCC 130 of 2014 SCC 131 of 2014 SCC 218 of 2014 SCC 284 of 2014 |
REFSHAUGE AJ:
Introduction
Once an offender enters the criminal justice system, it can escalate quickly and it can be not merely difficult, but require a complex set of processes and agencies to lead to a better path. Such problems can be even more intractable when the criminality is, even if only in part, attributable to a dependency on alcohol or other drugs.
Thus, the task of a sentencing court can often require it to avoid a short-term perspective and a simplistic or superficial approach, which merely responds to offending with a stern punishment. Instead, it requires a longer perspective, a subtle analysis of circumstances and the offender's Criminal History and a creative approach to the alternatives available to achieve the various and important objectives of the criminal law. These are necessary to set and enforce norms by holding offenders accountable and meting out appropriate punishment for breaches of them, to reinforce the applicable standards to both the offender and the rest of the community, to recognise the damage done by such breaches to those affected, including, often, the community itself, and to create a safer and more peaceable community where its members can flourish by reducing crime, including through the deterrence and reform of offenders: see s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
Appearing for sentence is Joshua Ryan Ware whose criminality started only in 2005, but has continued until 2021. Such a description, however, does no justice to the particular circumstances of Mr Ware and his journey to today of which, for reasons that will become apparent, I have been a central part.
The Crown tendered a helpful Crown Tender Bundle, which included a summary of the original offences and sentences and also breaching offences and sentences. It further included the police Statement of Facts for the breaching offences, Mr Ware's criminal record, which included the breaching offences, and the sentencing remarks for the original sentence. The Crown also tendered a Pre-Sentence Report.
Mr Ware's counsel tendered a bundle of letters, including two letters from Mr Ware and a number of references.
None of this material was the subject of objection and it was admitted. The contents of none of it was challenged and it was accepted by the Court.
Counsel for the Crown and for Mr Ware provided concise but helpful submissions.
On the basis of this material, the Court makes the following findings.
Background
Mr Ware's first contact with the criminal justice system was in 2005, when he was convicted and fined for a drink driving offence. This is an offence committed too frequently in this community, and one that can lead to very serious consequences given its contribution to the road toll, but not, of itself, an indication of a likely serious criminal lifestyle.
It can, of course, be an indicator of future problems if the relevant consumption of alcohol is not merely an unacceptable act of stupidity or criminality in choosing to drive while affected by alcohol, but a symptom of a substance dependency. The level of intoxication, level four in this case, could be regarded as a worrying sign.
A little over exactly four years later, however, Mr Ware again drove with a prescribed concentration of alcohol in his blood. The level of intoxication was not quite as high, level three, but only a few percentage points lower. Appropriately, he was, as a condition of a Good Behaviour Order made on that occasion, required to enrol in and successfully complete the Alcohol and Drug Foundation ACT Sober Driver Program.
It is not necessary to detail all his subsequent offending though the next offence, possessing an offence weapon, was committed a few months less than another four years later, in 2013, for which the Magistrates Court imposed a further Good Behaviour Order.
His problems started, however, when later that year he committed offences of theft, damaging property and attempting to escape arrest. He had entered the underground car park of a block of apartments, smashed a car window and damaged the car. He stole clothing and other items from the car and, when arrested, tried to escape. These offences were dealt with in the Supreme Court by Higgins CJ, and he was, given his relatively short and limited prior criminal record and the circumstances of the offences, sentenced to a further Good Behaviour Order for three years: R v Ware (Unreported, ACT Supreme Court, Higgins CJ, 11 July 2013).
A worrying sign was that three months later, he was charged with driving with a prescribed drug, namely methamphetamine, in his oral fluid. He was convicted for that offence and also fined by the learned Magistrate for breaching the Good Behaviour Order. That was not the Order imposed by the Supreme Court, but an earlier one made by the Magistrates Court. It is not clear why the Supreme Court was not asked to deal with the breach of its Good Behaviour Order then, but that did not appear to have been done.
Things, however, started to get out of control in 2013. Not only had he been dealt with in the Supreme Court for an offence of dishonesty and damaging property, but he also committed, shortly after that, other similar offences of theft and damaging property. Indeed, such offending continued from February to April that year (nine offences of damaging property and five offences of theft). In April that year, he also committed offences of possessing cannabis and unlawful possession of stolen property.
The offending continued into the next year when he committed four offences of burglary, three of theft, one of attempted theft and two offences of dishonestly driving a motor vehicle without the owner's consent.
Some of the earlier offences in this group were discovered when a search warrant was executed at his premises, but that also led to the offences dealt with by Higgins CJ in 2013. As observed in R v Ware [2016] ACTSC 264 at [47] (R v Ware 2016), it is not clear why those particular earlier offences were not brought before his Honour to be dealt with at that time.
The proceedings for the offences committed between 17 February and 17 March 2013 had taken quite some time to progress through the Magistrates Court, Mr Ware having first appeared in that Court on 1 October 2013. He ultimately pleaded guilty on 12 June 2014 when he was committed for sentence to this Court.
These offences were similar to the earlier offences dealt with by Higgins CJ. First, Mr Ware and a co-offender broke into a vehicle parked in an underground car park of an apartment building, damaged the car and stole electronic equipment from it. A month later, he entered a similar car park, smashed a car's window and stole electronic equipment worth $4,800.
He then smashed the window of another car in the same car park and stole items worth $80 and followed that with the smashing of a third car's window, stealing equipment worth $3,000.
This criminality continued a few days later when he entered another car park, smashed the windows of a car and stole various items, including sunglasses, cigarettes, clothing, gloves, a camera and a toolbox, together worth $500.
The cost of repairs to the cars, so far as was known, was a total of $3,647.51.
On 5 September 2014, however, he appeared in the Magistrates Court for offences committed between 6 and 7 July 2014, pleading guilty on 17 September 2014 when these offences were also committed to the Supreme Court for sentence. These offences had, of course, been committed while he was on bail for the earlier offences. He was remanded in custody until he was granted bail to attend Canberra Recovery Services, a drug rehabilitation facility.
These offences were somewhat different, though still burglaries and theft. On this occasion, he entered residential premises and stole the keys to a motor vehicle, which he then drove away with other property he had stolen from the residence.
Finally, on 17 November 2014, he appeared in the Magistrates Court charged with the final series of offences committed between 28 June and 12 August 2014, again while he was on bail at the time. He was remanded in custody, terminating his residence at Canberra Recovery Services, but was later granted bail on 20 February 2015 to attend the Karralika Therapeutic Community.
The offences committed on this occasion were, again, of the same type but committed at different locations. The first offences involved his dishonest entry into a storage unit in a garage under a residential unit block, from which he stole some electronic equipment valued at $2,178.
A couple of weeks later, he cut the chain locking a motorcycle to a post at a residential unit and drove it away. A week later, he and a co-offender entered the yard of some commercial premises where they attempted to steal some chainsaws and associated equipment. They were disturbed before they could do so, but returned later, cut a hole in a fence of the premises and stole four chainsaws worth $2,166.
The proceedings continued to be adjourned until he completed the drug rehabilitation program he was undertaking. He was, however, remanded in custody on 3 November 2015 because of a breach of bail. He was later granted further bail to permit him to return to the residential drug program at Canberra Recovery Services, though by February 2016 he had still not been admitted there. He had, however, been engaging with various community drug rehabilitation and other programs and under strict supervision by ACT Corrective Services. He had consumed drugs once, but other urinalyses proved negative to illicit drugs.
Instead of proceeding to the Canberra Recovery Services program, he proceeded to the Arcadia House Transition Program day program, which he commenced on 11 April 2016 and continued until June. He was then permitted to return to a community based program of employment and attendance at Narcotics Anonymous and Alcoholics Anonymous, with supervision through ACT Corrective Services, including urinalysis.
Reports of his progress became, after a somewhat rocky start, increasingly positive and a final report from the Court Alcohol and Drug Assessment Service (CADAS) was quite positive.
In some ways, this was a precursor to the program available through the Drug and Alcohol Treatment Order under s 12A of the Sentencing Act.
As a result of this, he was sentenced on 7 September 2016 in the Supreme Court to a total of five years imprisonment to commence on 22 December 2015, to be suspended from the date of sentence on September 2016 for five years: R v Ware 2016 at [151]. The required Good Behaviour Order included a probation condition, a condition to complete 250 hours of community service work and that he attend such treatment or counselling for drug dependence and mental impairment as may be directed. He was also required to pay a total of $11,435 in compensation to those whose property he had damaged or stolen.
Mr Ware seemed to progress well under this Good Behaviour Order. Regrettably, as has become too common, the Court did not have from either party much by way of detail of that.
Enquiries made through the Court Registry disclosed that the community service work of 250 hours was performed and no breach action has been taken in relation to any of the orders. It is also assumed that he has paid the $7,032 portion of the compensation, as that was due by 6 September 2020 and no breach action has been taken for that. It is, however, not entirely satisfactory for a Court to have to rely on such implications. Certainly, no information has been received about whether he was directed to undertake any treatment or counselling and if so, how he conducted himself in it and to what effect. It is noted that supervision was terminated in April 2017 which strongly suggests that he was compliant and performing well. In R v Ware 2016 at [3], it was said that “[t]he evidence suggests that Mr Ware has been heavily addicted to illicit drugs and that this is the principal cause of his criminality”.
It is evident from R v Ware 2016 at [88] also that he progressed well at the Karralika Therapeutic Community where, from August, he had advanced to the Nexus program (at [86]).
He did relapse in October 2015, but then, as noted above (at [28]–[29]), engaged in intensive community rehabilitation and underwent a couple of months of the Arcadia House Transition Program day program and, as noted in R v Ware2016 at [111], the report from CADAS was positive.
He appears not to have come to the notice of the authorities until September 2020. That means, and this was the Crown submission, that Mr Ware had completed a little over 80% of the Good Behaviour Order satisfactorily. Given that it was a lengthy period for such an order, this is commendable.
He experienced some difficulties, however. In August 2020, Mr Ware's elder brother took his own life. This had a very significant effect on Mr Ware as his mother described that they were “an extremely close family”. It was somewhat more traumatic that there had been no warning of such a tragic event.
His mother described that Mr Ware “didn't cope with the loss of his brother at all and took it extremely hard”.
He had, as described in R v Ware 2016 at [73], a son born to a previous relationship who unfortunately in August 2016 died of Sudden Infant Death Syndrome. Indeed, what was described as making his brother's death more challenging was that the previous Sunday had been the anniversary of his son's death.
These events were said to have led not merely to grief and sadness, but to what his mother described as “depression and irrational behaviour”. This is highly likely.
His mother pointed to a further factor, which was that the relationship in which he had engaged at that time had become problematic. She described it as “a fairly good relationship with [the former partner] and her children and he supported her and her children both emotionally and many times financial[ly]”. She explained that Mr Ware “felt she didn't offer him the same support that he had provided her so often so they separated”. This was all part of what led to his “irrational, selfish and self-destructive” behaviour.
Against this background, he committed the further offences. These were dealt with in the Magistrates Court and the total sentence was a conviction for each of the nine offences and imprisonment for what was said to be three months and 25 days. He was also disqualified from holding or obtaining a driver licence for 18 months.
That sentence, as recorded and as explained in the evidentiary material of the Crown, including the AFP criminal record for Mr Ware, is problematic. The earlier sentence of imprisonment is stated to have started on 11 April 2021. The last sentence was said to end on 5 July 2021. This is, of course, two months and 25 days. Three months and 25 days would extend to 4 August 2021.
In any event, Mr Ware has now completed whatever sentence was actually imposed.
The Court was provided with the police Statement of Facts for each offence. They may be briefly described as follows.
On 20 September 2020, Mr Ware was involved in a single vehicle collision in Evatt. When police located him, he was subject to screening tests for alcohol, which proved negative, and drugs, which proved positive. He admitted to having consumed methamphetamine and cannabis. He was charged with driving with a prescribed drug in his oral fluid. On conviction, he was sentenced to the rising of the Court. For that form of sentence, see Ledson v Taylor [2010] ACTSC 42; 239 FLR 184 at 192; [56]–[60].
On 29 September 2020, Mr Ware was intercepted by police when he was driving along Hardwick Crescent, Holt. The statement does not say what brought Mr Ware to the attention of the police.
He was again subject to screening tests for alcohol, which proved negative, and drugs, which proved positive. He was subsequently subject to oral fluid analysis which showed he had methamphetamine and cannabis in his oral fluid. He was again charged with having prescribed drugs in his oral fluid. On conviction, he was again sentenced to the rising of the Court.
The next offence relates to the breakup of the relationship with his then partner, to which reference has been made above (at [42]). On 29 September 2020, the Magistrates Court made a Family Violence Order prohibiting Mr Ware from contacting his former partner except through a legal practitioner or at Court or at counselling, mediation or restorative justice sessions.
On 17 December 2020, he rang his former partner, verbally harassing her. Then, on 21 December 2020, he rang her five times, but on each occasion when she heard his voice she ended the call. Again, on 22 December 2020, he rang her three times during the last of which he threatened to set fire to himself in her house.
Police arrested Mr Ware and he admitted the offending and breaching the Family Violence Order, saying that he still loved his former partner. He repeated that in the letter he wrote to the Court and which was tendered without objection.
On conviction, he was sentenced to one months imprisonment, to commence on 11 April 2021 and end on 10 May 2021.
On 9 February 2021, Mr Ware was granted bail on the earlier driving offences which required him not to drive a motor vehicle with a prescribed drug in his oral fluid and not to use illegal drugs.
On 4 March 2021, he failed to pay a fine and as a result his driver licence was suspended.
On 12 March 2021, Mr Ware was driving on Britten-Jones Drive, Holt when police intercepted the vehicle. He was noted as driving while unlicensed. He was required, again, to undertake alcohol and drug screening tests. He was found to be negative for alcohol but positive for drugs and, when he provided a sample of oral fluid, admitted to having consumed a point of ice, methamphetamine, and using cannabis daily. He was charged with driving while unlicensed and driving with a prescribed drug in his oral fluid as a repeat offender. On each offence, he was convicted and on the former offence, he was sentenced to the rising of the Court and on the latter, to 21 days imprisonment from 4 May 2021.
Finally, on 13 March 2021, Mr Ware was subject to a bail condition not to drive on a road and to reside at a residence in Holt. On 16 March 2021, he was driving along Macfarlane Burnet Avenue in Macgregor when police noticed him. They were aware that he used the car he was driving and that he was subject to those bail conditions. They followed him, activated their lights and sirens and directed him to stop, but he did not do so. They then drove to his residence in Holt to await his return.
When he returned, Mr Ware left the vehicle and police, leaving their vehicle, directed him to stop which he did. They gave him some directions which he partly obeyed, but with some non-compliance. When they told him to roll onto his stomach he did so, putting his left hand under his body. He was then directed to remove it and when he did so, he produced a knife which, however, he threw away. He then sat up before again rolling onto his stomach yelling “Kill me” and “You'll have to kill me [be]cause I'm not going to gaol”. Police then applied a short stun burst from the taser they had with them. Mr Ware refused to remove his arms from underneath his body.
He was tased again as police feared he may have had another weapon. He continued to resist police and not comply with the police directions.
Police then charged him with failing to stop when directed, driving while his licence was suspended, possessing a knife without a reasonable excuse and obstructing a Territory official in the course of his duty. For each of these offences, he was convicted and sentenced, in each case, to 42 days imprisonment, from 25 May 2021 to 5 July 2021, to be served concurrently.
The convictions for these offences constituted a breach of the Good Behaviour Order made on 7 September 2016. As a result, and because the Order was made when the sentence of imprisonment was suspended, s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) requires that the Good Behaviour Order be cancelled and the suspended part of the sentence either be imposed, or that he be re-sentenced.
Breaches of Good Behaviour Order
R v Kelly (No 2) [2021] ACTSC 253 at [12]–[16] dealt extensively with the law relating to Good Behaviour Orders, after reviewing both the cases and the approach that courts have taken to breaches of such orders. It is not necessary to repeat what was said there, but the relevant factors can be helpfully summarised as follows.
A Good Behaviour Order is intended to encourage and provide the opportunity for an offender to rehabilitate by engaging in activities that will assist and predispose to that. It is also intended, especially by the conditions, both the core conditions set out in s 86 of the Crimes (Sentence Administration) Act and also special conditions, such as were made in this case, to control the offender’s behaviour.
The Sentencing Court also has a discretion as to how to proceed; there is, in this jurisdiction, no presumption in favour of imposing the original sentence that was suspended. Nevertheless, the breach does constitute a breach of the trust that the Order represents by allowing the offender in the community and a failure to act effectively can bring the sentencing option into disrepute. These matters must inform the discretion.
Even when imprisonment may be appropriate, questions of suspension, community service and intensive correction may be appropriate.
When a breach occurs, the Courts have identified matters to which the Sentencing Court will have regard. These are:
(a)the details of the offences that resulted in the original sentence, though ordinarily the judge who imposed that sentence will deal with the breach;
(b)the details of the offences or other conduct that constituted the breach;
(c)the proportion of the period of the Good Behaviour Order served prior to the breach;
(d)any rehabilitation achieved during the period of the order,
(e)the prospects of further rehabilitation;
(f)the relative seriousness of the offence or offences constituting the breach compared with the original sentence and whether the imposition of any suspended sentence would be disproportionate;
(g)the similarity of the breaching offending to the original offending;
(h)whether the breaching conduct is so serious as to show a disregard for the need to be of good behaviour;
(i)whether the courts warned the offender of the consequences of breaching conduct;
(j)the level of understanding the offender had of the obligations of the order; and
(k)the nature of judicial and community resources previously devoted to the offender.
Not all of these will be relevant in every case.
Subjective circumstances
The Court has already set out a brief, but adequate, summary of the original offences and of the breaching offences. It is necessary, however, to have details of Mr Ware's subjective circumstances for the sentencing or re-sentencing exercise. They are set out comprehensively in R v Ware 2016 at [62]–[108]. The Court relies on what is there said, but summarises it and adds to it from the evidence that updates it.
Mr Ware is now 34 years old, nearly 35. He was born in Canberra, the second of his parents’ three children. He had a positive and stable childhood.
When he was 17 years old, his parents separated and he has had little contact with his father. He continued to have a good relationship with his mother, which appears to have deepened following the recent family trauma.
His education was disrupted and he was diagnosed with Attention Deficit Hyperactivity Disorder at age eight for which he was prescribed medication, though he ceased its use when he was 16 years old. School did not appear a good experience and he left halfway through Year 12.
He has had casual employment through work as a childcare assistant for three years. He is currently engaged on a regular but casual basis as a landscaper and in garden maintenance, a job he has had for the last four years. His employer describes him as a hard worker, “a loyal and trustworthy employee”. The employer was aware of the family trauma and knows of his lapses of judgment ending in his incarceration. He has, however, resumed employment and his employer considers that he has become “more engaged with his work and life commitments” and “has shown enthusiasm to rebuild his life and work on his emotional and mental health”.
He has had two significant relationships. The first commenced in 2012 and two children were born of the union. As noted above (at [40]), a son died at age three months, but he has had significant involvement with his daughter, now seven years old.
He began his second relationship in 2014 but, as also noted above (at [42], [50]), that ended after the death of Mr Ware's brother. He says, however, he still has strong feelings for his ex-partner and that caused him to behave as destructively as he did. He has continued contact with her and assisted her financially.
Although he has had a problem with alcohol, he became abstinent in 2012, but now drinks moderately.
His drug use started with cannabis at age 14 and has continued off and on, mostly on, since then. In R v Ware 2016 at [76], it was noted that he “struggled to convince himself that he should be abstinent” from that drug.
He began amphetamine use when he was 18 and moved on to methamphetamines when he was 25. He has continued its use with some periods of abstinence.
He has had some drug rehabilitation. Though it involved a somewhat erratic start, he did appear committed. He says he has not used methamphetamine since his release from custody on this occasion. He has made contact with Directions Health Services with a view to engagement in its Arcadia day program, though the current public health orders consequent upon the COVID-19 pandemic have made access to that program impossible. He does, however, seem committed to engage further in rehabilitation and is on their waiting list.
Regrettably, the Pre-Sentence Report made no comment about any direction given under the Good Behaviour Order recommending drug counselling or treatment. It did make very general comments about his non-compliance with directions though these appear not to have resulted in breaches, including drug use shown on urinalysis, being brought to the Court's attention. Indeed, as noted above, supervision was ended very shortly after the entry into the Good Behaviour Order, the implication being that he was behaving appropriately in those circumstances.
Mr Ware's mental health is of some concern given the post-traumatic stress following the death of his son and his decline in mental health following the death of his brother. He has had problems with depression and that seems to have returned, though he is compliant with medication. He says that the collision which led to the first breaching offences was an attempted suicide. He was admitted to the Adult Mental Health Unit. He sought mental health assistance while in custody, but it did not appear to eventuate because of the period that he was there.
Mr Ware’s Criminal History is described earlier (at [9]–[61]). Apart from the very serious offending between 2013 and 2014, for which the sentences that led to the Good Behaviour Order being made were imposed, he has had a moderately serious record. The main issues appear to be drug dependence and mental health and he seems to have insight and a keenness to address these issues.
A clear motivation for this is the possibility of regaining access and at least shared custody with his daughter.
He has, in this, strong support from his family and some equally strong support from a family friend. He has discussed grief counselling with his mother and it appears that they propose to attend together, which appears to be a very good idea.
Apart from his contact with Directions Health Services, confirmed in a letter which was tendered, there is no evidence of actual steps taken in the matters of drug rehabilitation, mental health or grief counselling. It is accepted that the commitments to those are genuinely made, but they need to translate into action.
It is accepted, as attested by a number of the referees including the associate chaplain at the Alexander Maconochie Centre, that Mr Ware accepts responsibility for his offending, he is remorseful and shows insight. The Pre-Sentence Report author acknowledged his insight into the link between his offending and the drug dependency and poor mental health. He reported that Mr Ware recognised his poor decisions and acknowledged that he needs to address these issues. It is said that he did not minimise his offending behaviour and expressed willingness to attend programs or interventions to address his criminogenic needs.
Consideration
The offences Mr Ware has committed and his subjective circumstances as they have been set out in these remarks are taken into account.
It is accepted that the breaching offences were caused by the trauma of his family tragedy, compounded by the ending of the relationship with his ex-partner for whom he still has strong affection. Unsurprisingly, it led him back to drug use and destructive behaviour, which constituted some criminality. This is a significant factor in assessing the response to the breaching of the Good Behaviour Order.
The criminality, being the breaching offences, is of a very different character and generally less serious or damaging to the community than the original offences. This can allow for a less severe response. While the Crown did submit that “[t]he Magistrate was of the view that the offences that breached the Order were of a serious nature and warranted terms of imprisonment”, the Court’s assessment of the sentences imposed is rather different. Given the seriousness of the breach of a Family Violence Order, especially the number of times it occurred and what was said, the penalty was modest. The third drug driving within six months deserved a stern sentence. The final offences were quite serious and showed a disregard for police directions, court orders and safety. A penalty of 42 days imprisonment is not severe.
As the Crown has noted, Mr Ware managed to comply with a very long Good Behaviour Order, five years, for over 80% of the period before committing offences which breached it. The circumstances in which he breached it did not excuse or justify the offending but explained it. This also makes clear, together with his subsequent insights, that his conduct does not show a disregard for the need for good behaviour, nor that the prospects for rehabilitation are not good. They are very good.
Unfortunately, not much detail has been given in evidence about the efforts towards rehabilitation that Mr Ware has made or what was achieved. It appears that he may have ceased more serious drug use, though that is not clear. There is some suspicion that he has not given up cannabis use, but a finding cannot be made about that. He certainly has returned to it. It is unfortunate that there are no further details to allow it to fairly to see any progress that he has actually made.
It is noted that he has performed the 250 hours of community service and that is important. It is a significant step forward. It appears that he may have paid a large part of the compensation ordered. He has got a regular job where he has earned the respect of his employer. These are very much to his credit.
All these matters suggest that he should be re-sentenced and that is the submission of both counsel.
The Court has regard to the purposes of sentencing set out in s 7 of the Sentencing Act. The Court has regard to his pleas of guilty to the original offences and to the effect on the victims.
The nature and circumstances of the original offences and Mr Ware's personal circumstances as they have been described are taken into account. The Court notes the maximum penalties for the offences set out in R v Ware 2016 at [8]–[13]. It is noted that some of the offences were committed while he was on conditional liberty, both under a previous Good Behaviour Order and then on bail, which requires the sentence to be imposed to be more severe.
It is noted, too, that he has served in pre-sentence custody the sentence for the offence of theft committed on 10 March 2013. The Court need not re-sentence him for that offence.
In the circumstances, however, even on re-sentencing, no other sentence than a sentence of imprisonment is appropriate and just: s 10 of the Sentencing Act.
In this case, the Court must sentence him for 24 offences. The law requires that a sentence be imposed on each and the length of each sentence has been carefully considered to ensure that it is just and adequate and also to ensure that Mr Ware is not punished twice.
The Court has also given consideration as to whether the sentences should be partly or wholly concurrent because, for example, they are part of the same course of conduct or contain common elements. This is particularly relevant here in the relationship between the theft and burglary offences, where ordinarily there is at least substantial concurrency between the sentences: R v McMahon [2014] ACTSC 280 at [94].
The Court has then considered the length of the term of the sentence arrived at to ensure that the principle of totality is respected and that the total sentence adequately reflects the criminality of the offences committed, but not more than that. The total sentence is carefully arrived at to ensure that it is not excessive but will leave open the realistic prospect of reform and maintain the hope required for Mr Ware to take an effective part in the community, to regain access to his daughter and realise his aims when he is released.
This may result in what is seen as some leniency, in that some sentences are made concurrent, but, while the total criminality of Mr Ware is an important factor, his growing awareness of the need for and steps towards rehabilitation is also important, as is the circumstances of his early introduction to drug use. Thus, it requires a sentence proportionate to his culpability for the crimes, taking into account what has happened since the original offences were imposed, the effect on the community, but also Mr Ware's subjective circumstances and the value of reform to both the community and to himself.
Sentence
[His Honour then spoke directly to the offender]
Mr Ware, please stand.
The orders of the Court are as follows:
1. The Good Behaviour Order made on 7 September 2016 is cancelled. The Court confirms the convictions that were entered on that date for each of the offences.
2. For the damaging property on 10 March 2013, you are sentenced to four months imprisonment, to commence on 25 July 2021 and end on 24 November 2021. Had you not pleaded guilty, you would have been sentenced to six months imprisonment.
3. For the theft between 16 and 19 February 2013, you are sentenced to four months imprisonment, to commence on 25 August 2021 and end on 24 December 2021. That is to be cumulative as to one month on the sentence for damaging property. Had you not pleaded guilty, you would have been sentenced to six months imprisonment.
4. For the first of the thefts between 10 and 13 March 2013, you are sentenced to six months imprisonment, to commence on 25 July 2021 and end on 24 January 2022. That is to be cumulative as to one month on the sentence for theft between 16 and 19 February 2013. Had you not pleaded guilty, you would have been sentenced to nine months imprisonment.
5. For the second theft between 10 and 13 March 2013, you are sentenced to four months imprisonment, to commence on 25 October 2021 and end on 24 February 2022. That is to be cumulative as to one month on the first sentence for theft between those dates. Had you not pleaded guilty, you would have been sentenced to six months imprisonment.
6. For the third theft between 10 and 13 March 2013, you are sentenced to six months imprisonment, to commence on 25 October 2021 and end on 24 April 2022. That is to be cumulative as to two months on the second theft between those dates. Had you not pleaded guilty, you would have been sentenced to nine months imprisonment.
7. For the theft on 17 March 2013, you are sentenced to four months imprisonment, to commence on 25 January 2021 and end on 24 May 2022. That is to be cumulative as to one month on the third of the thefts between 10 and 13 March 2013. Had you not pleaded guilty, you would have been sentenced to six months imprisonment.
8. For the first offence of damaging property between 5 and 8 April 2013, you are sentenced to four months imprisonment, to commence on 25 February 2022 and end on 24 June 2022. That is to be cumulative as to one month on the sentence for theft on 17 March 2013. Had you not pleaded guilty, you would have been sentenced to six months imprisonment.
9. For the second offence of damaging property between 5 and 8 April 2013, you are sentenced to four months imprisonment, to commence on 25 March 2022 and end on 24 July 2022. That is to be cumulative as to one month on the sentence for the first offence of damaging property between those dates. Had you not pleaded guilty, you would have been sentenced to six months imprisonment.
10. For damaging property between 16 and 19 February 2013, you are sentenced to four months imprisonment, to commence on 25 April 2022 and end on 24 August 2022. That is to be cumulative as to one month on the sentence for the second offence of damaging property between 5 and 8 April 2013. Had you not pleaded guilty, you would have been sentenced to six months imprisonment.
11. For the first offence of damaging property between 10 and 13 March 2013, you are sentenced to two months imprisonment, to commence on 25 June 2022 and end on 24 August 2022. That is to be wholly concurrent to the sentence for the offence of damaging property between 16 and 19 February 2013. Had you not pleaded guilty, you would have been sentenced to three months imprisonment.
12. For the second offence of damaging property between 10 and 13 March 2013, you are sentenced to four months imprisonment, to commence on 25 May 2022 and end on 24 September 2022. That is to be cumulative as to one month on the sentence for the offence of damaging property between 16 and 19 February 2013. Had you not pleaded guilty, you would have been sentenced to six months imprisonment.
13. For the offence of damaging property on 12 March 2013, you are sentenced to four months imprisonment, to commence on 25 June 2022 and end on 24 October 2022. That is to be cumulative as to one month on the sentence for the second offence of damaging property between 10 and 13 March 2013. Had you not pleaded guilty, you would have been sentenced to six months imprisonment.
14. For unlawful possession of property reasonably believed to be stolen on 17 April 2013, you are sentenced to two months imprisonment, to commence on 25 September 2022 and end on 24 November. That is to be cumulative as to one month on the sentence for damaging property on 12 March 2013. Had you not pleaded guilty, you would have been sentenced to three months imprisonment.
15. For possessing cannabis on 17 April 2013, you are sentenced to one months imprisonment, to commence on 25 October 2022 and end on 24 November 2022. That is to be wholly concurrent on the sentence for the offence of unlawful possession of property reasonably believed to be stolen on 17 April 2013. Had you not pleaded guilty, you would have been sentenced to two months imprisonment.
16. For the burglary between 6 and 8 July 2014, you are sentenced to 12 months imprisonment, to commence on 25 March 2022 and end on 24 March 2023. That is to be cumulative as to four months on the sentence for unlawful possession of property reasonably believed to be stolen on 17 April 2013. Had you not pleaded guilty, you would have been sentenced to 18 months imprisonment.
17. For dishonestly driving a motor vehicle without consent between 6 and 8 July 2014, you are sentenced to nine months imprisonment, to commence on 25 August 2022 and end on 24 May 2023. That is to be cumulative as to two months on the sentence for burglary between 6 and 8 July 2014. Had you not pleaded guilty, you would have been sentenced to 13 months imprisonment.
18. For the offence of theft between 6 and 8 July 2014, you are sentenced to nine months imprisonment, to commence on 25 August 2022 and end on 24 May 2023. That is to be wholly concurrent with the offence of dishonestly driving a motor vehicle without consent between 6 and 8 July 2014. Had you not pleaded guilty, you would have been sentenced to 13 months imprisonment.
19. For the offence of burglary between 28 and 29 June 2014, you are sentenced to 12 months imprisonment, to commence on 25 September 2022 and end on 24 September 2023. That is to be cumulative as to four months on the sentence for theft between 6 and 8 July 2014. Had you not pleaded guilty, you would have been sentenced to 18 months imprisonment.
20. For the offence of theft between 28 and 29 June 2013, you are sentenced to nine months imprisonment, to commence on 25 January 2023 and end on 24 October 2023. That is to be cumulative as to one month on the sentence for burglary for the same date. Had you not pleaded guilty, you would have been sentenced to 13 months imprisonment.
21. For dishonestly driving a motor vehicle without consent between 7 and 8 July 2014, you are sentenced to nine months imprisonment, to commence on 25 February 2023 and end on 24 November 2023. That is to be cumulative as to one month on the sentence for theft between 28 and 29 June 2013. Had you not pleaded guilty, you would have been sentenced to 13 months imprisonment.
22. For the attempted theft between 15 and 16 July 2014, you are sentenced to 12 months imprisonment, to commence on 25 March 2023 and end on 24 March 2024. That is to be cumulative as to four months on the sentence for the offence of dishonestly driving a motor vehicle without consent between 7 and 8 July 2014. Had you not pleaded guilty, you would have been sentenced to 18 months imprisonment.
23. For the burglary between 15 and 16 July 2014, you are sentenced to nine months imprisonment, to commence on 25 May 2023 and end on 24 April 2024. That is to be cumulative as to one month on the sentence for the attempted theft between 15 and 16 July 2014. Had you not pleaded guilty, you would have been sentenced to 13 months imprisonment.
24. For the theft between 11 and 12 August 2014, you are sentenced to nine months imprisonment, to commence on 25 October 2023 and end on 24 July 2024. That is to be cumulative as to three months on the sentence for burglary between 15 and 16 July 2014. Had you not pleaded guilty, you would have been sentenced to 13 months imprisonment.
25. For the burglary between 11 and 12 August 2014, you are sentenced to nine months imprisonment, to commence on 25 October 2023 and end on 24 July 2024. That is to be wholly concurrent on the sentence for the theft between the same dates. Had you not pleaded guilty, you would have been sentenced to 13 months imprisonment.
26. That is a total sentence of three years from 25 July 2021. That sentence is suspended from today, 24 September 2021, until 24 July 2024.
27. Joshua Ryan Ware be required to sign an undertaking to comply with the offender's good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act until 24 July 2024 with the following conditions:
(a)A probation condition that he be under the supervision of the commissioner of ACT Corrective Services or his delegate until 24 July 2024 or such lesser period that the person supervising him considers appropriate and that he obey all reasonable directions that the person supervising him considers appropriate.
(b)That he pay the sum of $4,403 to the Registrar of the ACT Supreme Court for loss and expenses to the following persons in the following sums on or before 24 September 2023, to be paid by to the Registrar to those persons at their addresses provided by the Director of Public Prosecutions, namely:
(v)Ms Imogen Taylor: $548;
(vi)Ms Elizabeth Hampston: $205;
(vii)Mr Carmel Chowdry: $3,000;
(viii)Mr Nicholas Love: $650.
(c)That he arrange to be assessed for drug treatment or counselling, mental health treatment and grief counselling and, if assessed as suitable, arrange to proceed with such treatment or counselling for the period reasonably considered necessary; and
(d)That he attend Court at 2:30 pm on 26 November 2021 to report on progress of any treatment or counselling.
Mr Ware, that sentence is, in sum, a sentence of three years imprisonment, no longer five years because of the work that you have done and the circumstances of your re-offending. Nevertheless, I am bound to re‑sentence you in that way, but I have suspended that sentence today and I have made, as I am required to, a Good Behaviour Order for the balance of that period. That retains your opportunity for rehabilitation rather than sending you back to gaol, which would have just been, in my view, ridiculous in these circumstances.
You are at a cusp and you must refrain from what your mother fairly and properly described as irrational behaviour. You have got to be able to deal with the problems in life and hopefully this opportunity will allow you to do so. There will be a level of control in the probation conditions, but I hope that that will be positive and provide an opportunity for you to seek out some assistance if things get difficult. Given what happened on the last occasion, I do not imagine that the supervision will continue for very long.
I do think it is important, however, for you to continue looking at a drug treatment, but also mental health treatment and assistance and grief counselling. If you and your mother continue with that, I think that is a really good idea. I hope that it will not take very long and it will not be very intrusive.
Given that I think you are at a turning point now, it is essential that you take some steps to avoid relapsing. Relapse prevention, I think, will be the main aim of any drug treatment and strength and resilience will be the aim of any mental health treatment in managing, in particular, your depression.
I cannot make, partly because you do not want one, but also in the circumstances, a Drug and Alcohol Treatment Order so you are not going to be under judicial supervision. However, given that the Court heard nothing about what happened last time and you were left in a position where those traumatic events led you back to criminality and to drug use, I want to check in after some months and see that things are on track. I do not know, at that stage, that I can do anything other than commend you if you are going well or urge you to take steps if they are not.
I do not think there are any orders I can make then unless there have been breaches of the Good Behaviour Order, but I hope that coming back to see me will not be too traumatic in itself and will be an opportunity to show that you are taking this opportunity seriously.
The fact that you have still got a job, you have got an employer who understands your situation and is continuing to support you, recognising the goodness that is in you, is a really important matter. I hope that none of the conditions will interfere with that. I hope that he will allow you to participate in these things and that he will continue to employ you. I have every confidence that that will be so.
I hope that this will be an opportunity for you to get your life back in order, to get access to your daughter, to perhaps get a relationship with your ex-partner where you can treat her in a mature and responsible way. It will also be an opportunity to make the most of the closeness that you have got with your mother and your sister and to have that backbone of family that will allow you to develop and to grow as a member of our community and hopefully to develop into whatever you want for the future.
| I certify that the preceding one hundred and ten [110] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge. Associate: Date: 1 November 2022 |
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