R v Weldon
[2021] ACTSC 348
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Weldon |
Citation: | [2021] ACTSC 348 |
Hearing Date: | 18 June 2021 |
DecisionDate: | 28 June 2021 |
Before: | Refshauge AJ |
Decision: | 1. Douglas James Weldon be convicted of minor theft and be sentenced to two months imprisonment, commencing on 26 December 2020 and expiring on 25 February 2021. 2. Douglas James Weldon be convicted of obtaining property by deception and be sentenced to two months imprisonment, commencing on 26 January 2021 and expiring on 25 March 2021. 3. Douglas James Weldon be convicted of driving a motor vehicle without the owner’s consent and be sentenced to six months imprisonment, commencing on 26 March 2021 and expiring on 25 September 2021. 4. Douglas James Weldon be convicted of burglary and be sentenced to nine months imprisonment, commencing on 26 September 2021 and expiring on 25 June 2022. 5. Douglas James Weldon be convicted of driving a motor vehicle without the owner’s consent and be sentenced to seven months imprisonment, commencing on 26 February 2022 and expiring on 25 September 2022. 6. Douglas James Weldon be convicted of burglary and be sentenced to 12 months imprisonment, commencing on 26 September 2022 and expiring on 25 September 2023. 7. Douglas James Weldon be convicted of theft and be sentenced to four months imprisonment, commencing on 26 May 2023 and expiring on 25 September 2023. 8. Douglas James Weldon be convicted of burglary and be sentenced to nine months imprisonment, commencing on 26 September 2023 and expiring on 25 June 2024. 9. Douglas James Weldon be convicted of driving a motor vehicle without the owner’s consent and be sentenced to six months imprisonment, commencing on 26 March 2024 and expiring on 25 September 2024. 10. Douglas James Weldon be convicted of unlawful possession of stolen property and be sentenced to three months imprisonment, commencing on 26 July 2024 and expiring on 25 October 2024. 11. A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Douglas James Weldon for two years from today, commencing on 28 June 2021 and ending on 27 June 2023, in respect of the primary offence of burglary of which he has been convicted and for which he has been sentenced to 12 months imprisonment. 12. That Order be extended to the associated offences of three counts of driving a motor vehicle without the owner’s consent, once count of obtaining property by deception, two additional counts of burglary, one count of theft and one count of unlawful possession of stolen property, of which Douglas James Weldon has been convicted and for which he has been sentenced. 13. It be noted that convictions for the primary offence and the associated offences have been recorded and that sentences have been imposed for each of them, which convictions and sentences be hereby incorporated into the Drug and Alcohol Treatment Order in the Custodial Part of the Order. 14. The Custodial Part of the Drug and Alcohol Treatment Order for the primary and associated offences be hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 28 June 2021, until 25 October 2024. 15. Douglas James Weldon be required to sign an undertaking to comply with the offender’s Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Drug and Alcohol Treatment Order, 28 June 2023, until the end of the total sentence, 25 October 2024, with a probation condition that he accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him including as to urinalysis, counselling and treatment. 16. For the Treatment and Supervision Part of the Drug and Alcohol Treatment Order: a. The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed; b. Douglas James Weldon travel directly from this Court today to Canberra Recovery Services, Fyshwick, ACT, and admit himself to the residential drug rehabilitation program at that facility by 1:00 pm today, 28 June 2021; c. Douglas James Weldon be directed to complete the residential drug rehabilitation program at Canberra Recovery Services, to not leave the facility until he has completed the course and to comply with all the directions of the person in charge of the program and all the rules of the program and the facility; d. Should Douglas James Weldon leave or be discharged from the program before completing it, he report to ACT Corrective Services by 4:00 pm on the next business day with a view to having his Drug and Alcohol Treatment Order reviewed; e. Douglas James Weldon undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where he resides, with whom he associates and his attendance from time to time; and f. Douglas James Weldon comply with any directions of the Court from time to time about attendance at Court in person or by electronic means. 17. Douglas James Weldon be directed to appear by electronic means in Court on Friday 9 July 2021 at 12:30pm. 18. Douglas James Weldon be directed to attend the Court Registry before he leaves the Court precincts to sign a sealed copy of this Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this Order is in force. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Burglary – Driving a Motor Vehicle without Owner’s Consent – Minor Theft – Obtaining Property by Deception – Theft – Unlawful Possession of Stolen Property – Rehabilitation – Drug and Alcohol Treatment Order |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 85 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 12A, 31, 33, 46J, 46K, 63, 80S, 80W, 80Y Supreme Court Act 1933 (ACT) pt 8 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 DPP v Darlington [2014] VCC 1647 WAP v The Queen [2017] NSWCCA 212 |
Texts: | Alcohol and Drug Foundation, Parliament of the Northern Territory, Drug Courts (Parliamentary Paper No 38, March 2019) Drug Court of Victoria by KPMG (KPMG, Evaluation of the Drug Court of Victoria (Final Report, 18 December 2014) |
Parties: | The Queen (Crown) Douglas James Weldon (Offender) |
Representation: | Counsel E Wren (Crown) J Cooper (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service NSW/ACT (Offender) | |
File Number: | SCC 70 of 2021 |
REFSHAUGE AJ
Introduction
It is undoubted that the use of illicit drugs is causally related to the commission of crime, but the use of such drugs can be a symptom in itself. The use of illicit drugs can be related to stresses in life and challenges, such as childhood disadvantage, mental challenges, lack of or poor parenting and other difficulties faced by many, who then become embroiled in the criminal justice system.
The rehabilitation from illicit drug use through treatment and rehabilitation regimes, such as those used for Drug and Alcohol Treatment Orders (Treatment Orders) made under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), can go a long way to effecting the rehabilitation of offenders both from illicit drug use and criminal activity.
It is necessary, also, to pay some attention to other therapeutic programs to address all the underlying causes that may have led to such behaviour. Thus, in the preparation of a Case Plan, consideration is given to the needs of the participant, not necessarily limited to drug rehabilitation, but including the relevant and appropriate needs of the participant to achieve, ultimately, a successful reintegration into the community.
In this context, the Court must now sentence Douglas James Weldon, who has pleaded guilty to ten charges: a charge of obtaining property by deception, three charges of dishonestly driving a motor vehicle without the owner’s consent, three charges of burglary, a charge of theft, a charge of minor theft and a charge of unlawful possession of stolen property. The offender has asked that a Treatment Order be made.
Mr Weldon is also known by the surname Williams. He said that Williams is the name he prefers to use and by which he prefers to be known. He said that all his identification and his birth certificate are under that name. Accordingly, that name will be used.
At sentencing, the Crown tendered the Crown Sentencing Tender Bundle. There was no objection to it and it was admitted as evidence. Included in it were the relevant committal and transfer documents and an Agreed Statement of Facts, together with Mr Williams’ Criminal History. Also included were five documents which comprised the Drug and Alcohol Treatment Assessments (Suitability Assessments) under s 46J of the Sentencing Act. These were: the Drug and Alcohol Treatment Assessment dated 15 April 2021 of ACT Corrective Services; a Drug and Alcohol Sentencing List Suitability Assessment dated 20 April 2021 of the Alcohol and Drug Services, together with an updated Suitability Assessment dated 20 May 2021, a Drug and Alcohol Sentencing List Cultural Assessment dated 20 April 2021 and a Drug and Alcohol Sentencing List Case Plan; all of the same service. There were no challenges to the contents of any of the documents in the Tender Bundle.
Tendered for Mr Williams was a letter from Orana Haven Aboriginal Corporation Drug and Alcohol Rehabilitation Centre dated 19 March 2021; a painting by his daughter and three paintings that he had made; and a certificate of achievement of an ACT Corrections program unit, certifying that Mr Williams had completed the First Steps Alcohol and Drug Program dated 6 May 2021. There was no objection to any of these documents nor to their contents and they, too, were admitted into evidence.
Mr Williams also gave evidence in person and was cross-examined.
The Court was provided with written submissions from the Crown and from Mr J Cooper, counsel for Mr Williams. Both Ms E Wren, counsel for the Crown, and Mr Cooper provided oral submissions. Their submissions were very helpful in allowing the Court to make relevant findings and in identifying the issues.
On the basis of this material, the following findings are made.
Facts
On 18 August 2020, Mr Williams drove to Fyshwick, ACT, and entered a store, the Auction Barn, through the public entry. He went to a white desk just inside the door and picked up a mobile phone, which was not his and which he had no permission to take. The theft of the phone was captured on the CCTV of the store. The black case in which the phone was kept also contained a credit card and other cards, $500 in Australian notes and $450 in Woolworths gift cards.
Mr Williams took them and drove off to the Caltex service station at Hume, where he purchased a packet of cigarettes for $30.95 using the credit card.
These were the facts that supported the offences of minor theft and obtaining property by deception.
On 18 October 2020, an unknown male stole a white 2016 Kia Cerato motor vehicle. There was no evidence to suggest that this was Mr Williams who stole it. On 19 October 2020, however, Mr Williams drove the vehicle to the Westfield Belconnen shopping centre and made some purchases, which were captured on CCTV. He then drove away, but returned later and made some further purchases, which were again captured on CCTV. He then again drove away.
Police later found the white Kia Cerato adjacent to a residence in Ainslie and found in it clothing that Mr Williams had been seen on the CCTV wearing that day. His fingerprints were also located in the vehicle. The owner of the vehicle had not given Mr Williams permission to drive the motor vehicle. There was no evidence to suggest that the vehicle had been damaged and it was obviously returned.
These facts constituted the first charge of dishonestly driving a motor vehicle without the owner’s consent.
On 22 October 2020, a white Volkswagen Golf motor vehicle was taken without the owner’s consent from the basement car park of an apartment complex in Turner, ACT. On Saturday 24 October 2020, Mr Williams drove the white Volkswagen sedan, without permission, to Bruce and went to a café after it had closed for the day. He used a sharp-edged tool to forcibly enter the front door and walked inside.
He began to search cupboards and drawers and this activity was captured on CCTV. He had no authority to enter the premises. The internal alarm was activated and one of the operators of the café arrived at the premises, whereupon Mr Williams fled through the front door and drove away.
These events constituted the second charge of dishonestly driving a motor vehicle without the owner’s consent and the first charge of burglary.
On 27 October 2020, Mr Williams used a tool to prise open the front door of a retail electrical premises and entered without permission. He opened several drawers before walking up stairs. He then returned with a bag and left the premises.
The owner of the premises, having been alerted by an alarm, attended at the premises to discover the unauthorised entry and found that the bag which Mr Williams had taken from the premises was missing. It contained three new iPhones, still in their original packaging, and a bottle of Chivas Regal scotch whisky. The value of the goods was not stated in the evidence.
These events founded the second charge of burglary and the charge of theft.
On 24 October 2020, a company vehicle was stolen from Fyshwick. Again, there was no evidence to show that Mr Williams was the thief. At 8:45am on 28 October, however, Mr Williams drove the stolen motor vehicle with a passenger into a tourist park in O’Connor, stopped it near the restaurant and main office. He used a tool to prise open the door of the restaurant and went inside, without any authority to do so. He walked around the restaurant and then into the office. An employee of the park saw Mr Williams in the restaurant and went in to approach him. He found Mr Williams in the office and Mr Williams told the employee that he was a landscaper looking for a male to whom he could speak. A short time later Mr Williams left the restaurant and drove away.
Mr Williams drove to a location in Flynn and then went to a nearby address, which is described as ‘associated with’ him. Police were alerted to the presence of the vehicle and attended the premises to which Mr Williams had gone. As they arrived, Mr Williams went out the back door and climbed over the rear fence, but was chased by police, who caught him a few doors away.
On being searched, police found the keys for the stolen company motor vehicle and he was arrested. Police searched the motor vehicle and found a bottle top, identified as from a bottle of Chivas Regal whisky. They also found a backpack in the rear of the residence to which Mr Williams had originally arrived. It was found to contain a tool consistent with the instrument apparently seen as used to force the door of the café in Bruce.
The police found two other bags, one containing a jumper identical to the one that Mr Williams was wearing when he entered the restaurant at O’Connor and similar shoes to those also seen on the various CCTV from the restaurant and from the electrical retailer. They also found a bag which was the same kind of bag taken from the Mitchell premises. It contained a bottle of Chivas Regal whisky and the accompanying box.
These facts were those constituting the third charge of burglary, the third charge of dishonestly driving a motor vehicle without the owner’s consent and also the charge of unlawful possession of stolen property, being the keys of the company vehicle.
The proceedings
As noted above (at [25]), Mr Williams was arrested on 28 October 2020. He was refused police bail and appeared the next day in the ACT Magistrates Court, where he was charged with the first and third burglaries, the second and third charges of dishonestly driving a motor vehicle without the owner’s consent and unlawful possession of stolen property. He entered pleas of not guilty and was remanded in custody.
The proceedings were adjourned to 6 November 2020, when he was charged with the second burglary and theft, to which he also entered pleas of not guilty. The proceedings were again adjourned to 18 December 2020 and Mr Williams remained in custody.
On 18 December 2020, the first count of dishonestly driving a motor vehicle without consent was laid. Apparently, Mr Williams was not charged until the next court date, 21 January 2021, when he was also charged with the offence of minor theft, but did not appear to enter a plea. He pleaded guilty to the theft at the next listing on 18 February 2021. He remained in custody.
Finally, when the proceedings were next in court on 4 March 2021, he was charged with the last offence of dishonestly obtaining property by deception and the proceedings were adjourned to 18 March 2021. He remained in custody.
On that day, 18 March 2021, he entered pleas of guilty to all offences. For all offences save for the offences of minor theft, obtaining property by deception and the first charge of dishonestly driving a motor vehicle without consent these pleas were entered after the Prosecution Brief of Evidence had been prepared. For those other three offences, however, pleas were entered before the Brief had been prepared. He was then committed to sentence to this Court and the related charges of minor theft and unlawful possession of stolen property were transferred to this Court under s 90B of the Magistrates Court Act 1930 (ACT), to be dealt with under pt 8 of the Supreme Court Act 1933 (ACT).
In this Court, Mr Williams appeared first on 19 March 2021, when an Eligibility Assessment (as to which, see R v McHughes [2021] ACTSC 92 at [7]-[8]) was ordered to be prepared and, upon him being found eligible for Suitability Assessments, these were then ordered to be prepared. The matters were adjourned a number of times and he appeared for sentence on 18 June 2021. The sentence was then ordered to be imposed today, 28 June 2021.
Mr Williams has been in custody since he was arrested. He was, however, convicted in the ACT Magistrates Court on 25 March 2021 of an offence of driving under the influence of alcohol or a drug and sentenced to two months imprisonment. As a sentenced prisoner, this period is not to be counted as Pre‑Sentence Custody: see R v Coleman [2021] ACTSC 349 at [83]. Without this two month period, he has been in custody prior to sentence for 184 days.
The offences
The facts of each offence have been set out above (at [11]-[27]), but, in order to impose a just and adequate sentence, it is necessary to determine a number of matters, especially the nature and circumstances of the offences as so committed: s 33(1)(a) of the Sentencing Act.
This assessment will first require attention to the maximum penalty legislated for the offence. The importance of having regard to this has been made clear on a number of occasions by the High Court: see, for example, Gilson v The Queen [1991] HCA 24; 172 CLR 353 at 364; [22].
Then, the decisions of courts require attention, constituting some of the current sentencing practice also required to be considered under s 33(1)(za) of the Sentencing Act, which have identified over time the way in which a particular offence is committed and which helps to identify aggravating or mitigating factors.
Burglary is made an offence by s 311 of the Criminal Code 2002 (ACT) and attracts a maximum penalty of 14 years imprisonment or a fine of $224,000 or both. That it is so serious an offence is because of the serious effect it has on the community. It is an offence of dishonesty, where the burglar not only preys on the property of members of the community, but also creates a sense of trauma and a feeling of violation for the occupants whose privacy has been violated by the trespass. There is, of course, a wider effect on the community, when more burglaries of insured premises increase premiums generally: see R v Hawkins [2015] ACTSC 333 at [48]-[50].
In R v Hancock [2021] ACTSC 52 at [33], a summary of the factors that have been identified by the courts as relevant to considering the seriousness of the particular offence have been set out. These will be taken into account, though it is not necessary to recite them here.
All the target premises were commercial premises, which makes them a less serious version than residential premises. They were targeted at a time when the occupants were unlikely to be there. While the absence of the occupants does usually render the offending less serious, it is by no means mitigatory, as the premises are, of course, then more vulnerable to the theft, which the burglary usually is intended to permit.
While it is accepted that the locks were forced, there was no evidence of damage and certainly no evidence of any cost of damage given. There were not, for example, as commonly happens, smashed glass or the like.
It is not clear what the motivation for the burglaries were, but it is clear Mr Williams was looking for items of value and, in the circumstances, it seems highly likely that it was related to his drug use, which is a primary risk factor for him re-offending. While he had obviously made some efforts to know when the café was closed, both counsel accepted that they were largely opportunistic burglaries. In only one of the burglaries was anything actually stolen.
The offence of obtaining property by deception is contrary to s 326 of the Criminal Code, which specifies a maximum penalty of 10 years imprisonment or a fine of $160,000 or both. This is a dishonesty offence and, of course, is intended to deprive people of their financial resources dishonestly. As pointed out in R v Dowling (No 2) [2021] ACTSC 200 at [46], the offence is most usually committed, as indeed it was here, following the theft of a credit card or cards and by their unauthorised misuse. In part, it is no doubt a serious offence because of the relative ease with which it can now be committed, where signatures or other forms of identification are no longer required to be provided of users of credit cards, indeed, not even their sex. The main relevant factor is the amount of property obtained. In this case, the amount of property was valued at $30.95, a small amount.
Minor theft, which is committed where the amount stolen is $2,000 or less, is criminalised by s 321 of the Criminal Code and the section specifies a maximum penalty of six months imprisonment or a fine of $8,000 or both. Again, a dishonesty offence, it is an attack on the wellbeing of the community, as members will feel unsafe if their property is at risk and items or other assets that they have worked hard to acquire are put at risk, where, for example, the means of accessing them, including a credit card, are stolen.
The primary relevant factor in assessing the seriousness for offences of theft is the amount or value stolen, noting that this includes any sentimental or personal value as well as monetary value. In this case, the amount was $950, plus the mobile phone, for which no evidence of value was given. The total amount including an estimation for the phone is likely to be nearer the monetary limit of the offence. Another factor is the inconvenience value caused by the theft. This would have been relevant in this case, with not only the bank card being stolen but also a Medicare and club membership cards. Thus, this was a somewhat more serious version of this offence.
Theft is prohibited by s 308 of the Criminal Code, which prescribes a maximum penalty of 10 years imprisonment or a fine of $160,000 or both. It is generally a more serious version of the minor theft offence, with largely the same relevant factors. It is often associated with burglaries and, given the fact of being part of the same course of conduct and the commonality of some elements, the sentences for the two offences are usually wholly or partly concurrent: see R v McMahon [2014] ACTSC 280 at [94].
In this case, no evidence was given of the value of the property taken: three new iPhones and a bottle of Chivas Regal whisky. While there is no requirement to charge an offence where goods stolen are worth $2,000 or less as a minor theft rather than a theft offence (Lawson v Gault [2002] FCAFC 191; 125 FCR 1 at 8; [22]-[23]), it does seem that the value of the items stolen might exceed $2,000, though, depending on the precise value of the phones, may have not done so.
Section 318(2) of the Criminal Code makes dishonestly driving in a motor vehicle without the owner’s consent a crime and provides for a maximum penalty of 5 years imprisonment or a fine of $80,000 or both. Also a dishonesty offence, though it does not involve the actual taking or theft of the motor vehicle, it necessarily deprives the owner of the motor vehicle, which is likely to be the largest single purchase of the owner, after a house, if he or she owns one. It also creates great inconvenience, as it is often the owner’s means of transport and may, if damaged, cause loss and expense and, if damaged seriously enough to be written off, cause its complete loss or cost.
It is relevant that the motor vehicles were, in two of the three cases, used to commit other offences, making those cases somewhat more serious: Williams v Connor [2019] ACTSC 184 at [33]. The value of the vehicle is relevant, but there was no evidence of this in any of the three cases. There was nothing unusual or erratic or dangerous about the manner of Mr Williams’ driving of the motor vehicles.
The time during which and the distance Mr Williams travelled is also relevant. In the first case, the vehicle was driven from an unspecified destination to the Westfield Belconnen shopping town and then away and back and then to Ainslie. The evidence was that Mr Williams drove the vehicle away from the Braddon residence, then, the next day, driving it from sometime until 7:11am, and again for a period before 9:39am. The vehicle was found at 7:30am the next day, not a long period at all.
The second occasion was from sometime between 3:30pm on 27 October 2020 to a short time after 3:00pm on 28 October 2020, a whole day. There is no indication of the distance travelled in the second case to Bruce and in the third case, but it was likely to be from O’Connor to Flynn.
In none of the cases were the time or distance particularly great. Further, the vehicles were all recovered and there was no evidence that they had been damaged in any way.
Thus, they were not particularly serious versions of the offences, though there was a serious factor of aggravation in one of them.
The final offence is unlawful possession of stolen property, made an offence by s 324 of the Criminal Code for which the maximum penalty is 6 months imprisonment or a fine of $8,000 or both. This is, too, a dishonesty offence. It is akin to an offence of receiving, which is serious because it is often said that “without receivers, there would be no thieves”: see R v Savanhu [2017] ACTSC 217 at [27]. While that may be too extremely stated, there is no doubt that preventing receivers from performing their unlawful acts is likely to discourage thieves: see R v Phillips (Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Lee and Clarke JJA, 11 December 1991).
The value of the property possessed is important. The amount involved was the stolen motor vehicle’s key. It was valuable, as it gave access to the vehicle itself, but it had little intrinsic value. It was, too, an element of the offence of dishonestly driving that vehicle without the owner’s consent and so the sentences should be substantially concurrent.
Subjective circumstances
I have had occasion to sentence Mr Williams before: see R v Weldon aka Williams (Unreported, Supreme Court of the ACT, SCC 321 of 2009, Refshauge J, 9 December 2009), R v Weldon (Unreported, Supreme Court of the ACT, SCC 321 of 2009, Refshauge J, 8 December 2010), R v Weldon (Unreported, Supreme Court of the ACT, SCC 321 of 2009 and SCC 105 of 2011, Refshauge J, 6 July 2011) and R v Weldon [2013] ACTSC 287. These are helpful to show how he has progressed over time.
Mr Williams is a proud Wiradjuri man. He has a sad, but regrettably not entirely unusual, personal story. He is 41 years old, having been born in Wagga Wagga. He is the third child of five children of his parents and describes his childhood as unstable, hard and dysfunctional. He grew up with alcoholic parents in a household with continuing family violence.
Throughout his childhood, Mr Williams' father would get drunk every day and then beat his mother, his siblings and himself. He never experienced any support or kindness from his parents and, for most of the time his parents were together, he lived in fear. He described home as a scary place where the children relied on each other for support and his eldest brother became the surrogate parent for his siblings. He describes a number of traumatic, violent and disturbing incidents. At 13, he experienced a very traumatic event, which has no doubt contributed to his personal problems.
The family left Wagga Wagga when he was five years old, moving to various towns in New South Wales, including Cowra and Griffith, where he continued to live an entirely unstructured life. The family travelled to Canberra when he was nine years old and relocated there. The family has been here ever since and shows no sign of moving. He left home after he was 14 or 15.
He was not an entirely consistent historian, with dates at least, but his story is now quite clear in general terms. He moved in with an aunt for a time. He did, however, repair his relationship with his father to some extent before the latter died in 2006. He does get on with his mother from time to time, though she uses cannabis problematically, has treated him badly sometimes and sees much of his father in him, which causes issues. He does not get on with his oldest brother, but otherwise has good relationships with his siblings.
Mr Williams had minimal education, having left school in Year 8 at 13 years of age. Sometime after leaving school, however, he attempted to complete his school certificate, but did not succeed. He has since completed a number of certificates in business administration, horticulture and chainsaw operation. In custody, he enrolled in a visual arts course, but his attendance was somewhat irregular. He has, however, become an accomplished artist and, as noted (at [7]) he has shown the Court a number of impressive paintings that he had done.
Mr Williams has had some casual labouring employment since leaving school and told the author of the Pre-Sentence Report presented for earlier sentencing that he completed two years of a chef's apprentice. He later attempted a carpentry apprenticeship, but did not complete this either. He left, he says, because his partner did not want to look after their daughter as a “stay at home mum” and so he had to assume that role of child carer.
He has a particular interest in horticulture and, as noted, completed further education in this area. In 2006, under arrangements with ACT Corrections, he obtained a job at a commercial nursery for six months while in a custodial transition and for a further six months after release. He did not complete it, however, because of difficulties that he experienced and a return to drug use.
He has had two significant relationships, both of which resulted in the birth of a daughter, one now 22 years old and the other is 13 years old. He has no contact with the older daughter because of his drug use and crime. The mother of the younger child was also a user of drugs. She relocated to Adelaide after the relationship ended. He has telephone contact with the daughter and hopes to re-establish a closer relationship with her.
He has experienced much homelessness and is currently without a home.
He is in reasonable physical health and has not been diagnosed with any mental health issues, though he has been prescribed medication for depression, which has been a problem for him throughout his life. In addition to the trauma in his early life referred to above (at [58]), he has had significant trauma as an adult, especially in 2003 when he was committing a burglary. He was shot by the owner of the house and, as a consequence, has a bullet in his back that he has been told cannot be removed. He was also stabbed by his brother that year and suffered injuries from that.
Mr Williams has a long and depressing, but not uncommon, drug and alcohol history. His alcohol use has been problematic since he was about 14 or 15, including binge drinking, but he reports that this is no longer a problem as he stopped 4 or 5 years ago.
The main challenge he faces is with illicit drugs. He has used cannabis since his early teens, largely to block out the pain of his early trauma. He said that, in 2009 - presumably when not in custody, though judicial notice can be taken that the Alexander Maconochie Centre is not a drug free environment - he used about one quarter of a gram of cannabis daily. He says that he has ceased use now, last using about six years ago.
Mr Williams used heroin from about 18 to 20 years of age. Previously in 2009, he said that he has reduced it to occasional use. Now, however, this has changed and he has reverted to its use, using once every few days of up to one gram each time. He last used prior to his arrest.
His choice of drug is clearly methylamphetamine, which he has used since he was about 23 years old, approximately every weekend. He is still using it, although he had a period of abstinence from methylamphetamine for several years, until about 2009.
The Suitability Assessment of the Alcohol and Drug Services noted that he had a history of polysubstance use, with heroin in particular as the most frequently used substance. The opinion was formed that he presented with the likelihood of a severe substance use disorder. He was using heroin right up until he was arrested.
Mr Williams has had some alcohol, tobacco and other drug treatment. He was once on the methadone program for about eight years, until July 2020, and is now prescribed Buvidal, which is a necessary change for admission to the Canberra Recovery Services residential drug rehabilitation program. He spent some time in the We Help Ourselves (WHOS) drug rehabilitation facility in Sydney, New South Wales (NSW). That experience was discussed in R v Weldon (2011) at 3 as follows:
He attended the WHOS program in 2009 to-10 and remained abstinent for about four months. He left the halfway house component early, however, and was clearly unready for being back in the community, leading to his relapse. Nevertheless, he felt the program has worked, but his return to the ACT meant that events slowly started to fall apart, so that he was using again by the time I sentenced him, though he did not confess that to me at the time. That is extremely unfortunate, for he may have been able to be helped rather than to face, as he now does, an extended further period in custody.
He was successful at that facility. In his evidence, he spoke of how he was “so proud of himself” and that this was the first time ever in his life that he completed something. Unfortunately, once he returned to his then partner, despite wanting to start “a new chapter”, things did not work out as his partner was still using illicit drugs. He acknowledged honestly, however, that it was really his fault that he did not succeed.
He also spent four months at Wayback Ltd, an alcohol rehabilitation centre in Harris Park, Sydney, founded in 1969. He said that he had to return from that facility early to appear in the ACT Magistrates Court. It was not exactly clear what the purpose of that was, but he said that he spent time with his daughter and just did not want to leave her, so he did not return. He did not at once return to drug use then, however, but did so later.
Mr Williams also undertook some courses at the Alexander Maconochie Centre. For one, the Court received a certificate of completion, as noted above (at [7]). That was a recent program. He said that, while his daughter was a big motivation for his reform, he still found it hard.
He also said that he had found a renewed faith in his Christian upbringing.
In March 2021, he was accepted into the Orana Haven Aboriginal Corporation Drug and Alcohol Rehabilitation Centre in Brewarrina, NSW. It was, however, subject to, inter alia, him having no court appearances during his time there, a pre-condition that he could not meet. This disappointed him. There is also an active NSW warrant issued for his arrest, apparently for an offence of wounding with intent to cause grievous bodily harm.
Mr Williams has, on his own initiative, contacted Canberra Recovery Services, Fyshwick. He is keen to attend there, as he is a committed Christian and appreciates the Christian foundation of the facility.
He has a long and troubling criminal history. [Redacted for legal reasons]. Since he became an adult, he has been found guilty of 38 offences and that is, in part, because he has spent at least 90 months in custody since 2002 in the ACT. He does not appear to have spent time in New South Wales custodial institutions as an adult.
The vast majority of his offences are dishonesty offences, including many offences of burglary and theft. Worryingly, he has breached court orders, including Good Behaviour Orders and an Intensive Correction Order made on 11 July 2018. He has also six convictions for failing to appear in court in accordance with a bail condition. He explained to me that he had breached the Intensive Correction Order by failing to keep contact and missing appointments. He says that the circumstances were that he was trying to change his address so that he could help his sister, who had a broken leg, but he failed to keep more contact, both by telephone contact and appointments. He was also breaking up with his then partner, who went to Adelaide, and the loss of his daughter was particularly hard for him to bear. He also used illicit drugs and found, in other ways, that he was not complying with the Order. He also breached a Periodic Detention Order in 2011, which resulted in more time in full time custody, though he did complete 13 months of the Order, with only 6 weeks left to serve.
Since 2016, he has committed a number of offences similar to those for which he is now to be sentenced, including burglary and dishonestly riding in a motor vehicle without the owner's consent.
Current sentencing practice
As noted (at [37]), consideration of current sentencing practice by a court sentencing an offender is mandated by s 31(1)(za) of the Sentencing Act. Part of that has been addressed above (at [38]-[55]). In addition, specific sentences recently imposed show the way the courts have currently assessed offences and the sentences that have actually been imposed. This can be assessed by considering statistics as collected in the ACT Sentencing Database. Statistics do provide information, but have significant limitations. They are rarely able to provide the range of relevant factors that need to be considered and, perhaps most significantly, fail to articulate the way in which the court explains and constructs the sentence.
The Database can also be of great assistance, however, if it can be used to link the sentences remotely to the remarks of the court when imposing the recorded sentence. Regrettably, and for reasons that are not clearly understandable, these remarks are mostly said on the Database to be “not yet available”. That deprives a sentencing court of valuable further information. It is to be hoped that this serious lack will be rectified as soon as possible. Nevertheless, the Sentencing Database does contain information that can assist the court, so long as the information is not used to replace the careful construction of a sentence and its rationale, as well as it does not set boundaries that are taken as binding a court. As the majority said, specifically in relation to the offences of aggravated burglary and burglary, in Fusimalohi v The Queen [2012] ACTA 49 at [15], there is “no single, correct sentence”.
For the offence of burglary, some sentences are of Good Behaviour Orders; some are of fully suspended sentences of generally between 3 and 24 months imprisonment; some are partially suspended sentences of generally between 6 and 24 months imprisonment. The majority (over 94%) are sentences of full time imprisonment of between 6 and 36 months, though there were 13 of the 212 that were for longer, up to 6 years imprisonment.
For the offence of dishonestly driving a motor vehicle without the owner's consent, all 10 sentences recorded in the ACT Sentencing Database for the Supreme Court did not result in terms of full time imprisonment, though sentences of imprisonment, wholly or partly suspended or served by Intensive Correction Orders, were imposed for periods between 3 and 9 months, with one being of 18 months imprisonment. In the Magistrates Court, similarly, only seven sentences were recorded and only one of which was of full time imprisonment, imposed for nine months, though four were sentences of imprisonment wholly or partly suspended of between six and nine months. These are very small samples, though they give a sense of the seriousness with which the appropriate sentence is to be regarded.
Although the offences of obtaining property by deception and theft are, judged by the maximum penalties set by the legislature, serious offences, judging also by the relevant factors and circumstances, they are clearly much less serious actual offences than the offence of burglary and driving a motor vehicle without the owner’s consent, as indeed are the remaining offences for which Mr Williams must be sentenced.
The other way in which the Court can assess the seriousness of offences, and the respective current sentencing practice for each, is from the consideration of comparable sentences. Neither party submitted any such sentences. So far as the sentencing remarks accessed through the Sentencing Database were concerned, none provided a great deal of information that was relevant to this sentencing exercise.
Consideration
In order to construct what the courts have established that is required of a sentence, namely that it be just and adequate (Singh v The Queen [2017] ACTCA 17 at [93]), it is necessary to take into consideration all the relevant factors. This has been considerably helped in this jurisdiction by the legislature having set out, in s 33(1) of the Sentencing Act, the factors that a court sentencing an offender must take into account. These have been set out and referred to earlier in these reasons, where they are relevant or known.
Further, the Court must craft the sentence to achieve the objects and purposes for which a sentence may be imposed. Again, the legislature has, in ss 6 and 7 of the Sentencing Act, set these out helpfully. The Court has had regard to them.
Thus, the nature of these offences requires that an element of punishment must be an important element of the sentence. Further, the serious effect such offences have on the stability of the community means that an element of general deterrence to discourage others from committing them will need to be reflected in the sentence and this, too, will serve to help protect the community.
It is important to note that Mr Williams has committed such offences before. While previous sentences, including relatively severe sentences, have not prevented him from repeating the commission of such offences, it is important to make clear to him by specific deterrence that continual unacceptable behaviour in the community is not to be tolerated. It is also necessary that such offences are denounced and that the effect on the victims is recognised.
While no Victim Impact Statement was provided from any of the victims of Mr Williams' offences, this absence cannot justify an inference that no harm has been suffered. Indeed, the courts can understand in general terms the harms that offences do to victims: see, for example, R v Kaewklom (No 3) [2013] NSWSC 59 at [134]; WAP v The Queen [2017] NSWCCA 212 at [77]. While specific harm, as opposed to the general harm that can be expected from an offence, cannot be found without evidence, other evidence in the case may allow an inference of particular harm to be drawn: DPP v Darlington [2014] VCC 1647 at [20].
Section 7(1)(d) of the Sentencing Act also makes the purpose of promoting the rehabilitation of the offender a legitimate purpose in an appropriate case. Since Mr Williams has undertaken rehabilitation and has been successful, at least in the short term, on a number of occasions, this is an important purpose for the benefit of community which objective must find its way into the sentence.
Mr Williams pleaded guilty at a relatively early time in the proceedings. As noted above (at [32]), all the pleas were entered in the Magistrates Court and three before the Prosecution Brief of Evidence was served. In particular, the Court was advised, without contradiction, that the plea was ultimately entered following negotiations, including the withdrawal of two serious charges. That the charges were laid over a period of time justified some delay. The fact that the evidence of these offences committed by Mr Williams was reasonably strong, as shown in the facts above, means that no overwhelming discount can be granted, nevertheless, a reasonably substantial discount is justified in the circumstances.
There was no difference between counsel that these were not serious versions of the offences. Counsel also agreed that Mr Williams was an offender whose personal circumstances, especially childhood disadvantage, justified – indeed, required – the application of the principles set out in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 594-5; [41]-[44] to recognise the full weight of this disadvantage and the impact of this on his moral culpability for the offences.
The nature and circumstances of the offences are taken into account, as is clear from the facts and the seriousness of the offences as described, as well as his personal circumstances, as also described above, especially his childhood disadvantage.
Account is also taken of the harm that was done to the victims, as the Court understands it, as well as his pleas of guilty and his wish for rehabilitation and the steps he has taken, albeit limited in that regard in the light of the earlier attempts which have had mixed results and certainly have not resulted in his abstinence.
Nothing but a sentence of imprisonment is just and appropriate: s 10 of the Sentencing Act.
There are, in this case, multiple offences for which sentences must be imposed. A separate sentence must be imposed on each offence and the length of each sentence has been carefully considered to ensure that it is just and adequate while ensuring Mr Williams is not punished twice. The Court must also consider 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 relevant in this case because concurrency applies to a number of the offences which were part of the same course of conduct and also which overlapped in some cases, so far as the elements were concerned.
The length of the total term of the sentence arrived at is then considered to ensure that the principle of totality is respected and that the total sentence adequately reflects the criminality of the offences committed, but no more than that, and that the total sentence is not excessive, but will leave open the realistic prospect of reform and maintain the hope required for Mr Williams to take an effective part in the community and realise his aims when he is released, especially the relationship with his younger daughter.
This may result in what is seen as some leniency, in that some sentences are made concurrent, but while the totally criminality of Mr Williams is an important factor, his growing awareness of the need for rehabilitation is also important, as is the circumstances of his early childhood disadvantage and his relatively early introduction to drug use. Thus, it requires a sentence proportionate to his culpability for the crimes, the effect on the community, but also Mr Williams' subjective circumstances and the value of reform to both the community and himself.
In imposing the sentence, the time Mr Williams has already spent in custody prior to sentencing has also been taken into account. Mr Cooper suggested that this should do be done this by reducing the period of imprisonment. The Court is not prepared to do this, considering the legislative policy in s 63 of the Sentencing Act. As such, Pre-Sentence Custody shall be taken into account by backdating the start of the sentences.
Sentence
[His Honour then spoke directly to the offender]
Mr Williams, please stand.
The Court orders the following:
a. You are convicted of minor theft and sentenced to two months imprisonment, commencing on 26 December 2020 and expiring on 25 February 2021. Had you not pleaded guilty, you would have been sentenced to three months imprisonment.
b. You are convicted of obtaining property by deception and sentenced to two months imprisonment, commencing on 26 January 2021 and expiring on 25 March 2021. That is to be cumulative as to one month on the sentence for minor theft. Had you not pleaded guilty, you would have been sentenced to three months imprisonment.
c. You are convicted of the first count of driving a motor vehicle without the owner's consent and sentenced to six months imprisonment, commencing on 26 March 2021 and expiring on 25 September 2021. That is to be wholly cumulative on the sentence for obtaining property by deception. Had you not pleaded guilty, you would have been sentenced to eight months imprisonment.
d. You are convicted of the first count of burglary and sentenced to nine months imprisonment, commencing on 26 September 2021 and expiring on 25 June 2022. That is to be wholly cumulative on the sentence for the first count of driving a motor vehicle without the owner’s consent. Had you not pleaded guilty, you would have been sentenced to 12 months imprisonment.
e. You are convicted of the second count of driving a motor vehicle without the owner’s consent and sentenced to seven months imprisonment, commencing on 26 February 2022 and expire on 25 September 2022. That is to be cumulative as to three months on the sentence for the first count of burglary. Had you not pleaded guilty, you would have been sentenced to 11 months imprisonment.
f. You are convicted of the second count of burglary and sentenced to 12 months imprisonment, commencing on 26 September 2022 and expiring on 25 September 2023. That is to be cumulative as to 12 months on the sentence for the second count of driving a motor vehicle without the owner’s consent. Had you not pleaded guilty, you would have been sentenced to 15 months imprisonment.
g. You are convicted of theft and sentenced to four months imprisonment, commencing on 26 May 2023 and expiring on 25 September 2023. That is to be wholly concurrent on the sentence for the second count of burglary. Had you not pleaded guilty, you would have been sentenced to six months imprisonment.
h. You are convicted of the third count of burglary and sentenced to nine months imprisonment, commencing on 26 September 2023 and expiring on 25 June 2024. That is to be cumulative as to nine months on the sentence for theft. Had you not pleaded guilty, you would have been sentenced to 12 months imprisonment.
i. You are convicted of the third count of driving a motor vehicle without the owner's consent and sentenced to six months imprisonment, commencing on 26 March 2024 and expiring on 25 September 2024. That is to be cumulative as to three months on the sentence for burglary. Had you not pleaded guilty, you would have been sentenced to nine months imprisonment.
j. You are convicted of unlawful possession of stolen property and sentenced to three months imprisonment, commencing on 26 July 2024 and expiring on 25 October 2024. That is to be cumulative as to two months on the sentence for driving in a motor vehicle without the owner’s consent. Had you not pleaded guilty, you would have been sentenced to eight months imprisonment.
You may be seated.
Drug and Alcohol Treatment Order application
The overall sentence imposed on Mr Williams is 3 years and 11 months imprisonment. He has asked me to make a Treatment Order in respect of him for these offences. This application will now be considered.
The first matter to consider is to assess whether Mr Williams is eligible. The eligibility criteria are set out in ss 12A and 80S of the Sentencing Act, though 80S really sets his suitability and available programs as eligibility criteria and can be dealt with below.
The offence of burglary on 27 October 2020 is an eligible offence. The sentence of imprisonment for that offence is 12 months imprisonment, which is equal to the minimum period of 12 months set out in the section. The total term of imprisonment for all offences of 3 years and 11 months is less than the maximum eligible period of 4 years, also set out in the section. Mr Williams pleaded guilty to each of those sentences.
The evidence before the Court satisfactorily shows that Mr Williams is dependent on illicit drugs, principally heroin and to some extent methylamphetamine, and that dependency substantially contributed to his offending, save for the offences of minor theft and unlawfully obtaining property by deception, which he says he committed because he needed to get money for food. He further says that he was not using drugs at the time, namely in August 2020, though he did revert to drug use a little later before the further offending. Thus, those offences cannot be associated offences to the primary offence of the second burglary because they do not meet the criteria for such an Order, namely that the commission of them was substantially contributed by his dependence on drugs. Nevertheless, he has now completed the sentences for those offences, which all expired on 25 March 2021.
Mr Williams is homeless. He has, however, lived in the ACT since he was nine years old. While he has some appearances in courts in NSW since then, they, apart from an occasion in the Parramatta Local Court, are all in the Queanbeyan Local Court, which is an indication that he is remaining around the Canberra area and do not suggest that he will leave the ACT. Some direct evidence of the eligibility criterion would, however, have been helpful to confirm what the Court is nevertheless prepared to infer.
While Mr Williams was homeless before his arrest and, while he does not have a residence currently available, that is not the end of the story. Unfortunately, despite his counsel’s helpful submissions, neither they nor his oral evidence addressed this critical issue of eligibility, just as the other issues have been addressed and not left to inference. Nevertheless, doing the best with the evidence before the Court, it seems that Mr Williams may be able to resolve this issue.
In the first place, if he is admitted to the residential drug rehabilitation program at Canberra Recovery Services, he will have secure accommodation for six months. He has submitted an application for housing accommodation and is also on the waiting list for the Housing Justice Program. It is quite unlikely, however, and highly regrettable in the state of social housing availability in the Territory at the moment, that the application will be successful for social housing by the time his program ends.
Secondly, he has been recommended to seek assistance for the Justice Housing Program and, as noted (at [112]), he has applied. This is a program conducted by the Justice and Community Safety Directorate to enable, inter alia, Aboriginal and Torres Strait Islander people involved in the criminal justice system to obtain accommodation options.
Thirdly, in any event, Canberra Recovery Services has introduced a policy to assist the participants to transition to accommodation. This arrangement provides some placement so that graduating participants will not be left homeless. This is comparable to the process of this Court, whereby the various phases of the Treatment Order program are designed so that completion of intensive treatment is not the sole objective. There is a need to for ongoing levels of support which is provided generally in the treatment phases, with more or less intensive treatment depending on the phase. This treatment is followed by a focus on reintegration, to support the participant on seeking pro-social and substance-free activities; education and job seeking. The objectives of this Court concentrate on a pro-social life, not merely a drug free life, and, of course, relapse prevention. This regime supports them to move past the more intensive phases of the program into a more independent crime and drug free part. The later stages of the Treatment Order, like the transitional accommodation provided by Canberra Recovery Services, recognise that drug abuse is not an isolated issue and aims to address the connected, and often causal, difficulties and instabilities that lead to relapse.
The Court can be confident that, in the current circumstances, Mr Williams will not merely remain in the ACT, which is all that the eligibility criteria requires, but will find suitable accommodation in time through these supportive resources available to him.
It is also satisfied that the nature and obligation of a Treatment Order has been explained to him and that he has had an opportunity of asking any questions he may have about it and has had any questions properly answered. It is further satisfied that he has consented to the making of the Treatment Order in respect of him. A consent form, attesting these matters, has been signed by him.
Accordingly, the Court is satisfied that Mr Williams is eligible for a Treatment Order. Next, consideration must be given to whether it is appropriate to make a Treatment Order by which Mr Williams may serve his sentence and that he is suitable.
I have read the carefully and comprehensively prepared Suitability Assessments (aforementioned at [6]). They are expert in preparation and very helpful in assisting the decision of whether it is appropriate to make a Treatment Order. Both the Suitability Assessments from the Alcohol and Drug Services and the Cultural Assessment recommended that a Treatment Order be made.
The Suitability Assessment of the Alcohol and Drug Services initially recommended that a Treatment Order not be made on the basis that only residential drug rehabilitation would be suitable and that no placement was available, as well as there being a lack of suitable accommodation. The updated report noted that a placement at Canberra Recovery Services had become available and that the recommendation was now changed to be in favour of making a Treatment Order. It is also noted that, although it was not specifically addressed in the Suitability Assessment, Canberra Recovery Services has since changed and improved their arrangements for transitioning participants needing accommodation.
The Suitability Assessment of ACT Corrective Services recommended against the making of a Treatment Order. The reasons are also on the basis that he has no suitable accommodation but, in addition, because of Mr Williams “substantial non-compliance with previous court orders”.
The first concern has already been addressed (at [111]-[114], [119]) and while, in fairness, it cannot be said that it is finally and absolutely resolved, the Court is satisfied that it is sufficiently likely to be resolved as to justify making a Treatment Order.
The second issue is similar to that of the Crown’s objection, though that objection goes wider and relies on the fact that he “has had many opportunities afforded to him on earlier occasions and has returned to offending”, including serious offending, such as further burglary offences. The Crown acknowledges that no single failure disentitles an offender to further opportunities, but that a time comes when there is no rational basis for assuming that trying the same thing will result in a different outcome.
As noted above (at [72]-[75]), he has performed reasonably well within the residential therapeutic programs he has undertaken, including the Solaris Therapeutic Community Program within the Alexander Maconochie Centre. The problems with other rehabilitation programs occur when he leaves the programs and is on his own back in Canberra, as each of those programs in the community were in Sydney.
There are differences on this occasion and, given Mr William’s general success in the programs themselves, as well as considering the differences and length of the Treatment Order, including the required reintegration phase, the Court is satisfied that it is appropriate to provide him with a further opportunity.
It is further noted that the Treatment Order regime is, as Mr Cooper has submitted, intended to cover the period beyond treatment and even immediate transition to provide a significant degree of ongoing intensive supervision. This does appear to be precisely the point where Mr Williams particularly needs it. Even accepting that Mr Williams was provided a degree of transition in the halfway house of the WHOS program, this was for less than eight months and did not extend back to support him in Canberra.
In this case, a recommended Treatment Order was for 24 months, which would give plenty of time for continuing support to assist him. As to the breaches of other community orders, the evidence, so far as it can be identified, shows that this occurs almost entirely when he is using drugs. Again, this risk is minimised in the differing circumstances, for he has not been recently using and will go into a regime of abstinence within Canberra Recovery Services. He does appear to be compliant when not using drugs. That suggests that he is likely to complete the program and with appropriate support has a reasonable chance of completing the Treatment Order of 24 months.
There is no guarantee, but the above assessment of the differences in the present circumstances compared to Mr William’s past rehabilitation attempts do provide a rational basis to suggest that it is appropriate to make a Treatment Order. This will provide the supports that seem to mitigate the causal reasons for previous failures. This view is supported by Mr Williams’ continuing attempts to continue his rehabilitation. He independently enquired of both Canberra Recovery Services and Orana Haven Aboriginal Corporation prior to sentencing, was ‘disappointed’ when a residential rehabilitation was not initially available - this suggests a continuing commitment to rehabilitation.
The final submission of the Crown was that the making of a Treatment Order, which entails a fully suspended sentence, is too lenient a penalty for the offences committed. This is a little complicated. The offences, while generally serious ones, are, it is accepted by both parties, by no means the most serious versions of the offences. This would not justify the submission on its own.
In addition, however, the Crown submits that there are offences that he has committed many times before [redacted for legal reasons]. As an adult, he has three offences of burglary, one of aggravated burglary, six of theft and three of dishonestly driving a motor vehicle without the owner’s consent.
While this is a shocking record, it is by no means the worst that has been found suitable for a Treatment Order: see, for example, R v Reid (No 1) [2021] ACTSC 334. It is to be noted that Mr Reid breached the Treatment Order shortly after it was made, but for reasons that do not seem to be a risk for Mr Williams, especially as Mr Reid was not referred to a residential drug rehabilitation program: see R v Reid (No 2) ACTSC 281. He may not have breached had he been so referred.
While it is correct that a serious criminal record or substantial non-compliance with previous court orders is a matter to be considered in determining suitability (see Item 4 of Table 46K of the Sentencing Act), it is not a bar to the making of a Treatment Order. It is a matter to be taken into account when assessing suitability. The determination of when a serious criminal record renders an offender no longer entitled to serve a sentence by a Treatment Order is a matter of judgement. It is not appropriate to identify any such measures, but escalation of the number or seriousness of offending or increases in serious violence offending may meet such a criterion. It relevant to note also, as found by Alcohol and Drug Foundation, Parliament of the Northern Territory, Drug Courts (Parliamentary Paper No 38, March 2019) at p. 1, citing the final report of the evaluation of the Drug Court of Victoria by KPMG (KPMG, Evaluation of the Drug Court of Victoria (Final Report, 18 December 2014):
Imprisonment is not an effective means of deterring drug use among offenders with severe drug problems or of rehabilitating them: rather than addressing underlying problems, which can include deep-seated psychological, emotional, behavioural, as well as contingent situational problems, imprisoned drug dependent offenders endure a revolving door of excessive drug use, offending, and incarceration.
Given that this program has not previously been available to Mr Williams, it is not unreasonable to suppose that its unique opportunities should be tried before all efforts are abandoned for his rehabilitation by simply returning him to incarceration, as the only option available to the criminal justice system. While this matter needs to be considered carefully, there are proper reasons which support the suitability of Mr Williams for a Treatment Order.
While the Crown submitted that there was a question of whether the length of sentence to be imposed would exceed the maximum eligible sentence, it did not submit that it would inevitably do so. The sentence imposed has not done so. Mr Cooper did briefly submit that, if the sentence did exceed four years imprisonment, “the sentence could be structured to use this time [already served in custody] to bring the DATO [Treatment Order] within range if necessary”. This suggests that the Court may simply reduce the sentence by Pre‑Sentence Custody so that an offender who has already served, say, three months, could be sentenced to a just and adequate sentence of four years and three months which, by taking the three months into account, would be a four year sentence and so within the Treatment Order range. This was the method followed in R v McCallum [2020] ACTSC 15 at [81]. This was, however, because the Court there considered that s 12A of the Sentencing Act precluded backdating. That approach has been rejected in R v Parker [2020] ACTSC 38 and R v Crawford (No 1) [2020] ACTSC 245, though each for somewhat different reasons. There is no reason to depart from that latter view. Indeed, not to do so may suggest a form of non‑compliance with s 12A(5) of the Sentencing Act.
In all the circumstances, that the Court considers that a Treatment Order is appropriate and, accordingly, will make one.
Drug and Alcohol Treatment Order
[His Honour again spoke directly to the offender]
Mr Williams, please stand.
The Court makes the following further orders:
(11) A Treatment Order be made for you for two years from today, 28 June 2021, until 27 June 2023 in respect of the primary offence of burglary on 27 October 2020 of which you have been convicted and for which you have been sentenced.
(12) The Order is extended to the three counts of driving without the owner’s consent; the three counts of burglary; and unlawful possession of stolen property, of which you have been convicted and of which you have been sentenced and which are associated offences to the primary offence.
(13) It is noted that the Order does not extend to the offences of minor theft and obtaining property by deception, for which Mr Williams has already served the period of imprisonment and committed for reasons not directly associated with drug dependency.
(14) The convictions for the primary and associated offences have been recorded and that sentences have been imposed for each of them which are hereby incorporated into the Drug and Alcohol Treatment Order in the Custodial Part of the Order.
(15) The Custodial Part of the Drug and Alcohol Treatment Order for the primary and associated offences are hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 28 June 2021, to 25 October 2024.
(16) You are required to sign an undertaking to comply with the offender’s Good Behaviour Obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from 28 June 2023 with a probation condition that you accept supervision of the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising you considers appropriate; and obey all reasonable directions of the person supervising you, including as to urinalysis, counselling and treatment.
(17) For the Treatment and Supervision Part of the Drug and Alcohol Treatment Order:
a. the core conditions of the order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) are hereby imposed;
b. you are directed to travel directly from this Court today to Canberra Recovery Services, Fyshwick, ACT, and admit yourself to the residential drug rehabilitation program at that facility by 1:00pm today, 28 June 2021;
c. you are directed to complete the residential drug rehabilitation program at Canberra Recovery Services, to not leave the facility until you have completed the course and to comply with all the directions of the person in charge of the program and all the rules of the program and the facility;
d. should you leave or be discharged from the program before completing it, you are to report to ACT Corrective Services by 4:00pm on the next business day with a view to having your Drug and Alcohol Treatment Order reviewed;
e. you are to undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that team about where you reside, with whom you associate, and your attendance from time to time; and
f. You are directed to comply with any directions of the Court from time to time about attendance at Court, in person or by electronic means.
(18) You are directed to appear by electronic means on Friday 9 July 2021 at 12:30pm in Court.
(19) You are directed to attend the Court Registry before you leave the Court precincts today to sign a sealed copy of the Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act2005 (ACT) for the period that the Order is in force.
Mr Williams - you will probably be known as Weldon but I guess you are used to that. That is a lot of words to say. In effect, I have said that you have committed some pretty serious offences, particularly in light of your history, where you do it over and over again. The totality of the criminality, notwithstanding all the things about you and all your particular circumstances, justifies 3 years and 11 months imprisonment - nearly 4 years.
However, on this occasion - and we have been here before, so I hope this is going to be different - you do not have to serve any further time in prison. It has been a long journey. You spat in my eye once before and did not do the right thing. I hope you have learnt that I do not like that and you know what the consequences are. I sent you back to gaol, as you will recall. That will happen quick-smart if you do not commit to this now.
This is an opportunity, if you really want, to make something of yourself. You have got some impressive artistic talent. You have got two daughters to whom you can be a father and a role model, but only if you get on top of this drug problem and start to work through the things that you can do. You can get into horticulture. You can paint. You can be a father. This is your opportunity. I hope those are sufficient motivations.
Now, I have had some sad news today that some of the people that I have given an opportunity to recently, like you, who are at Canberra Recovery Services and have done the wrong thing. They have used there. They have taken off. They have done the wrong thing. They will go back to goal, some for a long time, some for a short time. That is the risk of not complying with the obligations you have been given here.
This is an opportunity to really put your mind to it. Do not listen to what they say. You have got a clear-eyed view. You have done it at WHOS. You have done it for a short time at Wayback, which was interrupted for silly reasons. It is when you get beyond that that there is a problem, but we have got a program that should be able to assist you. So, you should be able to do the Canberra Recovery Services program easily; of course, not that easily because it will be hard. The programs are hard. But you have done it before, you can do it again.
Following the program at Canberra Recovery Services, there will be continuing support and assistance that will allow you to progress, become a sensible, pro-social member of the community and achieve those objectives which you know you can: get a job, continue your painting, be a father. Those are the things that you want to keep firmly in your mind.
Now, I cannot tell whether you are just using this as a “get out of jail free” card but it is not, at the end of the day. Those people might have had a few days’ freedom but it will not last. That is not a sensible nor smart thing. This is your opportunity. This is the chance to do what you tried when we were in Court together before but could not quite do because there was not the right supports that you now have in this program. So, I hope it will work this time.
There are a three of things that you need to remember. The first is, do not run away like one of those others has done. That will lead you into trouble. I have said that if you are discharged, if you breach a rule and they send you away or if you leave because you just cannot hack it anymore, then you have got to come back to Court. There will be a penalty, probably involving going to gaol for a while, but we might be able to resolve something.
If you just run away, then it is very likely that you have lost your chance. This probably, given your offending history and the submissions that the Crown properly made, may well be your last chance. After that, it may just be a revolving door of gaol. What a terrible place to be in, not because there are not good people who are running it, but because it locks you up, it denies you the opportunities that you want and can get and it prevents you from being the person that you really can be.
You have got some terrible things in your history, but you can overcome those. There will be people to assist you. They will help more than just with drugs and alcohol. There will be trauma counselling and other things that will be recommended as well to assist you.
The second thing is absolute honesty. First of all, you have got to be honest with yourself and recognise that the excuses you have made, like “it is all too hard and you just gave in to temptation and it is not so bad” and so on and so on – they do not help you to get out of this situation, but hide the reality and stop you from overcoming difficulties. You have got to be honest to yourself, such as “I am doing things I should not be doing and I have got to acknowledge that.” You have also got to be honest with your counsellors and others in the community.
The third thing is to commit yourself to the program. If you do not commit yourself to the program, it will not work. If you are really committed to this then you have come to the right place, hopefully, at last. This Court is designed and will help you to make the most of this opportunity, but only if you participate. At the end of the day, I cannot do it for you. I can tell you what to do. I can help you. I can direct you. I can ask people to assist you. I can do all sorts of things but I cannot do it. You have got to do it. You have got to do it yourself.
If you are willing to commit, then this Court will help you make it work and hopefully put all this drama - this nonsense of pinching other people’s stuff, going into other people’s place where you’ve got no right to be, taking other people’s cars, taking their property - put all that behind you. There is a bit of bashing in there. No more of that. You know, if you can get yourself under control, you will be all right.
I hope it works. I wish you good luck. Last time I said good luck, the person took off sometime after I said that. You know the consequences. I believe I have been fair in the past. I am being fair now, so you will get a fair go. If something goes wrong, come back and talk to me. I am pretty powerful as a judge, although I do not have the ability to solve everything, but sometimes we can find resolutions together.
Just running away, putting your head in the sand is not the way to go.
You will see me for a lot of time in these first months. You will not come in for a fortnight because the rehabilitation facility wants you to settle in, but after that you will come in every week. That is an opportunity to talk to me about things that are difficult, things that you need to resolve and so on. If things are going wrong, we can try and sort them out. It may be that things can be dealt with.
Lastly, Mr Cooper will no longer be your lawyer. He is very experienced, but in this program, you will have someone from Legal Aid. You can talk to them if there are difficulties. If you want to raise things in confidence with me outside of hearing of some of the participants or staff, we can always do that. Raise it with me, come back, talk to me about it. Do not just run off because that way disaster lies and you will be back in gaol before you know it.
I hope it works. It is about time you started to get your act together and do it properly. I hope you will take this opportunity and I wish you every good luck.
You may be seated.
| I certify that the preceding one hundred and fifty-five [155] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge. Associate: Date: 22 July 2022 |
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