R v Ziebell
[2014] ACTSC 221
•25 July 2014, 29 August 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Ziebell |
Citation: | [2014] ACTSC 221 |
Hearing Date: | 25 July 2014 |
DecisionDate: | 25 July 2014, 29 August 2014 |
Before: | Penfold J |
Decision: | See [10], [11] and [14] below |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – offender sentenced in 2012 for assault occasioning actual bodily harm, aggravated burglary, theft, threat to kill, and three damage property offences – total sentence of imprisonment for three years, backdated for time served and the remainder suspended subject to good behaviour order – offender breached good behaviour order by commission of drive while disqualified offence – offender served four months in full-time custody for drive while disqualified – new offence different from original offences, and far less serious – no need to impose suspended sentence – good behaviour order cancelled – offender re-sentenced – sentence again backdated and the remainder fully suspended subject to new good behaviour order. CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence contrary to law – good behaviour order for term shorter than suspended part of sentence contrary to Crimes (Sentencing) Act 2005, s 12 – sentence corrected – good behaviour order extended. |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), ss 12(3), 61 Crimes (Sentence Administration) Act 2005 (ACT) |
Parties: | The Queen (Crown) Raymond Kevin Ziebell (Offender) |
Representation: | Counsel Ms A Clarke (Crown) Ms T Warwick (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Rachel Bird & Co (Offender) | |
File Number: | SCC 401of 2009 |
25 July 2014
In December 2012, Mr Ziebell completed a deferred sentence order made by Teague AJ some 12 months earlier. I then sentenced Mr Ziebell in terms originally foreshadowed by Teague AJ, for seven offences, to a total term of imprisonment of three years, backdated to take account of 57 days in custody and immediately suspended subject to a good behaviour order for three years with core conditions only.
Mr Ziebell had over many years abused illicit substances, and his offending was closely linked to his drug abuse. During the deferral period provided by Teague AJ, Mr Ziebell had undertaken extended and apparently successful residential rehabilitation, and was about to begin a new job with an associated apprenticeship.
Unfortunately, Mr Ziebell breached the good behaviour order only nine months after it was made by an offence of driving while disqualified, which was detected on a routine check but came as a surprise to Mr Ziebell because he had been issued a New South Wales licence that was still current. He relapsed into drug abuse, and his Magistrates Court sentencing was deferred for a year to enable him to go to rehabilitation.
There were some problems with rehabilitation and the availability of a place towards the end of that deferred period and eventually, early this year, Mr Ziebell was sentenced to four months imprisonment for the drive while disqualified offence, which he has now completed. The new offence, drive while disqualified, was both less serious and of an entirely different nature from the original offences which included a violent home invasion. The new offence does not, in my view, show any tendency on Mr Ziebell’s part to relapse into his former offending behaviour.
The relapse into drug use is more worrying, but Mr Ziebell says he has not used any illicit substances since October 2013 and is still hoping to return to Canberra Recovery Service (where he is awaiting a bed for a further six months residential rehabilitation), and also to undertake counselling to help him with traumas relating to his experiences while in Goulburn gaol some years ago.
Noting that Mr Ziebell has also served the full four months custodial sentence for the driving offence, I see no need to impose the sentence that I suspended in 2012. The sentence will instead be re-imposed and again suspended.
Since completing his recent Magistrates Court sentences, Mr Ziebell has spent a further 10 days in custody attributable to the offences I am dealing with.
Accordingly, I note the breach of the good behaviour order constituted by commission of the drive while disqualified offence, and under the Crimes (Sentence Administration) Act2005 (ACT), I cancel the good behaviour order and re-sentence Mr Ziebell as follows.
Mr Ziebell, if you would please stand. First, I note your convictions on one charge of assault occasioning actual bodily harm, one of aggravated burglary, one of theft, one of threat to kill, and three of damage property.
10. I sentence you:
(a)for the assault occasioning actual bodily harm, which Teague AJ and I saw as the most serious offence of that list, to 20 months imprisonment;
(b)for the aggravated burglary, to 16 months imprisonment, to be cumulative on the first sentence as to eight months;
(c)for the five other offences, all of which have the same maximum penalty of 10 years, to four months imprisonment each, the first one to begin at the end of the aggravated burglary offence, and the other four to be cumulative on that first four months as to a month each.
11. That gives a total sentence of three years. That sentence will be backdated to 19 May 2014 and it will be immediately suspended, and I now order you, Mr Ziebell, to sign a new good behaviour order for two and a half years this time, 30 months, and that good behaviour order will be subject only to the core conditions.
12. Now, as you know, that means that you have now got another two and a half years in which you have to keep out of trouble and, although this is not a direct condition, pursue rehabilitation to the best of your ability, and so that’s not a core condition but that is what is going to enable you to keep out of trouble for another two and a half years.
13. Now, as you again know, if you do commit another offence during that two and a half years, then you will be brought back here and the options again at that stage are the outstanding sentence is imposed, and there is still a bit more than 33 months of that left, or alternatively you may be re-sentenced again, but obviously what has happened today is I have taken the view that this is not a serious enough new offence to require you to serve the earlier sentence in custody, but if you actually went back to drug abuse and violence and so on, then you would almost certainly be looking at serving some of this sentence in custody as well. But I assume that you have, quite apart from that, positive reasons for wanting to address your drug problems and other problems.
[After sentence was imposed, the Court became aware that, contrary to s 12(3) of the Crimes (Sentencing) Act, the good behaviour order operated for a period shorter than the suspended part of the sentence of imprisonment. The matter was re-listed pursuant to s 61 of the Crimes (Sentencing) Act and the parties were given an opportunity to be heard. No submissions were made opposing the correcting of the good behaviour order.]
29 August 2014
14. Under s 61(3) of the Crimes (Sentencing) Act, I amend the good behaviour order to operate for a term of 34 months from 25 July 2014 to 24 May 2017.
| I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Date: |
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