R v Williams
[2015] ACTSC 150
•5 June 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Williams |
Citation: | [2015] ACTSC 150 |
Hearing Dates: | 23 April 2015, 2 June 2015 |
DecisionDate: | 5 June 2015 |
Before: | Burns J |
Decision: | See [23]-[30] |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – particular offences – property offences – dishonesty offences – theft – aggravated burglary –driving offences – driving a motor vehicle without consent – driving whilst disqualified – dangerous driving – proceeding through a red arrow – exceed speed limit by more than 45 kilometres per hour. |
Parties: | The Queen (Crown) Derek Joseph Williams (Offender) |
Representation: | Counsel Mr G Mansfield (Crown) Ms K Bolas (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kim Bolas Criminal Law Specialist (Offender) | |
File Numbers: | SCC 190 of 2014; SCC 191 of 2014 |
BURNS J:
Background
Derek Williams, you have pleaded guilty to one offence of aggravated burglary, one offence of theft and one offence of dishonestly and without consent driving a motor vehicle belonging to another person. The circumstance of aggravation with respect to the aggravated burglary offence is that you were in company with your co‑offender, Paul Kelly. In addition, you have entered pleas of guilty to related offences, being an offence of driving whilst disqualified as a repeat offender, an offence of dangerous driving, an offence of proceeding through a red traffic arrow and an offence of exceeding the speed limit by more than 45 kilometres per hour.
The maximum penalty for the offence of aggravated burglary is 20 years' imprisonment, a fine of $140,000.00 or both. The maximum penalty for the offence of theft is 10 years' imprisonment, a fine of $140,000.00 or both. The maximum penalty for the offence of dishonestly and without consent driving a motor vehicle belonging to another person is five years' imprisonment, a fine of $70,000.00 or both. The maximum penalty for the offence of driving whilst disqualified as a repeat offender is 12 months' imprisonment, a fine of $14,000.00 or both. In addition, there is an automatic licence disqualification period of 24 months, although a longer disqualification period may be imposed. The maximum penalty for the offence of dangerous driving is 12 months' imprisonment, a fine of $14,000.00 or both. There is an automatic disqualification period of three months, although, again, a longer disqualification period may be imposed. The maximum penalty for the offence of proceeding through a red arrow is a fine of $2800.00, but I note that the ordinary traffic infringement notice penalty for that offence is $360.00. Finally, the maximum penalty for the offence of exceeding the speed limit by greater than 45 kilometres an hour is a fine of $2800.00, although the ordinary traffic infringement notice penalty for that offence is $1800.00.
An Agreed Statement of Facts was tendered at the sentence hearing. I will not here recite those facts in full. It is sufficient to note that you were part of a joint enterprise with your co‑offender of entering retail premises in Fyshwick at about 3.48 am on 22 May last year. At that time, the premises were unoccupied and entry was gained by smashing a pane of glass next to the front door. A total of $250.00 in cash was taken from the till and a number of items of clothing were also taken. The value of the property taken was not significant, being approximately $500.00.
You and your co‑offender travelled to the store in a red Corolla motor vehicle which had been taken without the owner's consent from a premises in Garran sometime between 17 May and 22 May last year. When you left the store, you and your co-offender drove off in the red Corolla, and I am satisfied that you were driving. Shortly after leaving the scene of the burglary, you were seen by police who attempted to stop you. You accelerated away from police and drove on a number of streets in the Fyshwick area erratically and at high speed, at one point colliding with a small brick wall, after which you got out of the vehicle before re-entering it and reversing it towards the police vehicle, which moved out of your way.
You were then pursued through Fyshwick and towards Queanbeyan before turning into Oaks Estate. In Oaks Estate, you lost control of the vehicle and it collided with a dirt embankment causing it to come to a complete stop. You and your co-offender alighted from the vehicle and attempted to run away, but you were arrested by police after a chase of approximately 100 metres.
At 9.31 pm on 22 May last year, you participated in an interview with police in which you made no admissions, instead giving a false account of your movements that morning. Police were quickly able to establish that your account was untruthful.
ConsiderationOn 19 March 2013, you were sentenced in the Magistrates Court to an effective term of 18 months' imprisonment commencing on 14 February 2013 for offences of aggravated burglary, taking a motor vehicle without authority, driving whilst disqualified, possessing a drug of dependence, and dangerous driving. The court fixed a non-parole period to expire on 11 February 2014. On 11 June 2013, you were further sentenced in the Magistrates Court to six months' imprisonment to be served concurrently with the sentences imposed on 19 March 2013 for an offence of driving whilst disqualified. The Court reset the non-parole period to expire on 13 March 2014. On 25 March 2014, you were released on parole until 13 November 2014. The present offences were committed on 22 May 2014, which means that you were still on parole for the earlier similar offences. It is, of course, an aggravating circumstance to the present offences that they were committed at a time when you were on conditional liberty.
I accept that there was minimal planning involved in the burglary offence, but it cannot be said to have been entirely spontaneous. I would assess the burglary offences being in the low to mid range of offences of this nature.
You were arrested on 22 May 2014 and were remanded in custody. On 3 June last year, the Sentence Administration Board cancelled your parole on the basis that you had not complied with the condition of your parole that you enter and complete the Karralika Residential Rehabilitation Program. That left you liable to serve a term of imprisonment until 21 January this year. On 28 January this year, you were granted bail by Refshauge J and you have remained at liberty on bail since that time. I will return to that issue shortly.
At the time that you drove the red Corolla on 22 May last year, you were a disqualified driver. On 19 March 2013, your licence was disqualified for two years to 18 March 2015. Subsequently, on 12 June 2013, you were again convicted of driving whilst disqualified and you were disqualified from holding or obtaining a driver's licence from 19 March 2015 until the disqualification is set aside by a court. I note that the insurer of the owner of the red Corolla is seeking reparation in the sum of $5,139.00 for expenses incurred in recovering and repairing the vehicle.
You have a significant criminal history. I have already referred to your previous conviction for aggravated burglary. You were convicted of two offences of driving whilst disqualified in 2013 and sentenced to six months' and three months' imprisonment respectively. With respect to the conviction of driving whilst disqualified, which was imposed on 19 March 2013, you were also convicted of an offence of dangerous driving at the same time and sentenced to a term of three months' imprisonment. On the same day, you were sentenced to eight months' imprisonment with respect to an offence of taking a motor vehicle without consent. On 3 March 2011, you were convicted at the Queanbeyan Local Court of an offence of driving recklessly in a police pursuit, and you were sentenced to 16 months' imprisonment, although this was reduced to 12 months’ imprisonment on appeal. You also have convictions for offences of violence and other offences of dishonesty. I note that you currently have charges outstanding before the District Court in New South Wales.
Your criminal history is such that you are not entitled to any leniency based upon prior good character in these proceedings. In fact, your criminal history suggests that personal deterrence is a very important sentencing consideration in these proceedings. You have in the past been subject to fines, good behaviour orders, supervision, suspended sentences and periods of imprisonment, but none of these has been sufficient to deter you from further criminal offending.
I take into account the contents of the Pre Sentence Report dated 29 May this year. You told the author of the Report that your father died in 2010 and that you have ongoing grief and loss issues relating to his death. I note that you have six children from two prior relationships, with all of your children currently residing with your ex‑partner. You were educated to year 9 level and subsequently worked as a painter for a period of years. You told the author of the Report that you were affected by illicit drugs at the time of these offences. You claim that you participated in the use of illicit drugs after your father died in 2010 as a means of dealing with your feelings of grief and loss. You indicated that you were willing to participate in counselling in relation to these issues. You were assessed as at medium risk of re‑offending. In my opinion, based upon your history, this would appear to be an underestimation of your risk of re‑offending unless this Court can be satisfied that you have appropriately addressed your drug addiction.
In that regard, I have a CADAS Report dated 20 April this year, which notes that you were diagnosed with depression 12 months ago at the Alexander Maconochie Centre and that you are currently receiving treatment with anti‑depressant medication. You described a long history of substance abuse. You commenced using cannabis when you were 16 and you used it regularly from that age. You reported that your last use of cannabis was in 2011. You commenced using amphetamines in 2008 and used that substance regularly from 2010 when your father died. You reportedly last used amphetamines three and a half to four months prior to the date of the Report. The Report noted that, in March 2014, you underwent detoxification as an in‑patient prior to attending residential rehabilitation. You then attended the Karralika Program, but only remained in the program for about two weeks. At the time of writing the Report, you were a resident at Oolong House and had completed 11 weeks of the program. Management at the program indicated that you were doing very well and had completed level five of the six level program. The author of the Report suggested that you might benefit from further support once you had completed your program at Oolong House.
As I noted earlier, on 28 January this year, you were granted bail to attend Oolong House. That is a 16 week residential rehabilitation program. Initially, you performed well in the program, progressing through five of the six levels. However, on 27 April this year you did not return to Oolong House after being granted weekend leave. You were discharged from the program, although management of the program was later persuaded to allow you to return. Your case manager indicated in a report dated 27 May this year that, after you returned, you were not focussed on recovery and did not participate fully in the program, resulting in you not completing level six.
Consequently, it cannot be said that you completed the program, although you remained for the full 16 week period. It is clear from the report of 27 May 2015 that the staff at Oolong House nevertheless believed that you obtained some benefit from participating in the program and that you have taken some steps towards addressing your drug addiction. Participation in and even completion of a program of residential rehabilitation such as that offered at Oolong House does not guarantee that a sentence of imprisonment will not be imposed. It is a factor to be taken into account as relevant towards the need for any sentence to reflect personal deterrence and also on the basis that the restriction of liberty involved in attending such a program should be taken into account in sentencing.
To the extent that participation in such a program may convince a court that there is a reduction in the prospects of re‑offending, the need for personal deterrence in sentencing may be lessened. I accept that your attendance at and participation in the program at Oolong House has assisted in the process of your rehabilitation from drug addiction, although it is too early at this time to say with any confidence that you will not return to drug abuse and further offending. Whilst I accept that attendance at the program has reduced the need for personal deterrence in sentencing you, I am not satisfied that it is irrelevant as a sentencing consideration.
I do take into account in your favour the fact that there is no evidence that you have used illicit drugs since you were released on bail in January this year. I note that you are a 32 year old Indigenous man who was born in Queanbeyan and has lived in the ACT region all your life. You are one of 11 children of a blended family and you reported a normal childhood, denying any trauma, abuse or neglect. I understand that you have no physical health issues or disabilities.
As I have already noted, your father passed away in 2010 and your mother is currently unwell and suffering from chronic ill health. You have previously been employed as a painter and you have expressed a desire to return to that employment. The Pre Sentence Report indicates that you have cooperated in community-based orders in the past. Your counsel advised me that you left school at an early age and that you are relatively illiterate. I accept that you have demonstrated some degree of remorse for your offending.
I take into account your plea of guilty as indicative of a degree of remorse and I also note that it had significant utilitarian value. It was not, however, an early plea. You originally entered pleas of not guilty in the Magistrates Court and all matters were committed for trial or transferred to this Court as related offences. On 13 February this year, you indicated pleas of guilty would be entered to all charges. At that time, the matter was listed for callover for trial on 2 March 2015. I will reduce the otherwise appropriate sentences by approximately 15 per cent in order to reflect your pleas of guilty.
I accept that you have reasonable prospects for rehabilitation despite your history of offending. Your prospects for rehabilitation are inextricably linked to your commitment to avoid illicit drug use, which, as I have said, is still questionable although you have taken some steps in the right direction. I note that the total number of days which you spent in custody prior to sentencing and attributable solely to these offences is 21 days. For the balance of the period that you were in custody prior to being granted bail, you were a sentenced prisoner as your earlier parole period had been revoked. I will backdate the commencement of the sentences which I intend to impose by a period of three months in order to reflect the time that you spent in custody prior to sentencing and the period that you spent at Oolong House.
I have determined that an immediate term of imprisonment is appropriate penalty for the offences of burglary, theft, driving whilst disqualified and dangerous driving, and that no lesser penalty would be appropriate. In reaching this conclusion, I particularly bear in mind the fact that you were on parole for similar offences at the time you committed these offences. I do not underestimate the efforts you have made towards your rehabilitation by attending Oolong House and I hope that the skills that you learned in that program will assist you to continue in the process of rehabilitation, both at the Alexander Maconochie Centre and once you are released from custody.
Sentence
With respect to the offence of aggravated burglary, I record a conviction and you are sentenced to two years' and one month imprisonment commencing on 5 March 2015 and expiring on 4 April 2017. I have reduced that from two years and six months in order to reflect your plea of guilty.
With respect to the offence of theft, I record a conviction and you are sentenced to five months’ imprisonment commencing on 5 January 2017 and expiring on 4 June 2017. I have reduced that from six months in order to reflect your plea of guilty.
With respect to the offence of driving whilst disqualified as a repeat offender, I record a conviction and you are sentenced to four months’ imprisonment commencing 5 April 2017 and expiring 4 August 2017. You are also disqualified from holding or obtaining a licence for a period of two years.
With respect to the offence of dangerous driving, I record a conviction and you are sentenced to four months’ imprisonment commencing 5 June 2017 and expiring 4 October 2017. You are also disqualified from holding or obtaining a licence for a period of 12 months. Both disqualification periods are to run concurrently with the sentences I have imposed for driving whilst disqualified and dangerous driving.
With respect to the charges of proceeding through a red arrow and exceeding the speed limit, I record convictions and, in the light of the sentences that I have just imposed, there will be on each matter a Good Behaviour Order for a period of three months with no conditions other than the core conditions.
With respect to the offence of driving a motor vehicle without consent, you will be convicted and you will be sentenced to a term of five months' imprisonment commencing on 5 July 2017 and expiring on 4 December 2017.
There will be a non-parole period of 16 months commencing on 5 March 2015 and expiring on 4 July 2016.
| I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 23 June 2015 |