The Queen v Avis
[2015] ACTSC 382
•12 November 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | The Queen v Avis |
Citation: | [2015] ACTSC 382 |
Hearing Date(s): | 12 November 2015 |
DecisionDate: | 12 November 2015 |
Before: | Refshauge J |
Decision: | 1. Philip Terrence Avis be found to have breached the Good Behaviour Order made on 19 February 2013. 2. No further action be taken in relation to that breach of the Good Behaviour Order. |
Catchwords: | CRIMINAL LAW – Jurisdiction, practice and procedure – judgment and punishment – breach of Good Behaviour Order – committing further offence – offence of a different kind – Good Behaviour Order now ended – no further action |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), s 108 |
Cases Cited: | Cotter v Corvisy (2008) 1 ACTLR 299 Guy v Anderson [2013] ACTSC 5 |
Parties: | The Queen (Crown) Philip Terrence Avis (Defendant) |
Representation: | Counsel Ms S McMurray (Crown) Mr H Jorgensen (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Defendant) | |
File Number(s): | SCC 355 of 2010 |
REFSHAUGE J:
On 19 February 2013, I sentenced Phillip Avis to a Good Behaviour Order on convicting him for theft on the 17 July 2010. That Good Behaviour Order ended on 18 February 2015.
As part of the Good Behaviour Order I made a condition that he perform 300 hours of community service. He has completed that community service, although there were some challenges along the way because of his physical health which interfered with the completion of that condition.
On the 24 September 2015, he was convicted of driving whilst disqualified. That offence was committed on the 8 September 2014, that is, before the expiry of the Good Behaviour Order. Accordingly, it breached the Good Behaviour Order.
Under s 108 of the Crimes (Sentence Administration) Act 2005 (ACT), if I am satisfied that an offender has breached any of the offender’s good behaviour obligations and that the Good Behaviour Order was not made when a sentence of imprisonment was suspended, I have various powers that I can exercise.
That section provides:
108 Court powers—breach of good behaviour obligations
(1) This section applies if—
(a) a court is satisfied an offender has breached any of the offender’s good behaviour obligations; and
(b) section 110 (Cancellation of good behaviour order with suspended sentence order) does not apply to the offender’s good behaviour order.
(2) The court may do 1 or more of the following:
(a) take no further action;
(b) give the offender a warning about the need to comply with the offender’s good behaviour obligations;
(c) give the director-general directions about the offender’s supervision;
(d) amend the good behaviour order;
(e) if the offender has given security under the order—
(i) order payment of the security to be enforced; and
(ii) order the good behaviour order to be cancelled on payment of the security (if the term of the order has not already ended);
(f) cancel the order.
Examples for par (d)
impose or amend an additional condition of the order, or amend the term of the order
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(3) If the court cancels the good behaviour order, the court must—
(a) if section 109 applies to the offender’s good behaviour order— deal with the offender under that section; or
(b) in any other case—re-sentence the offender for the offence for which the good behaviour order was made (the relevant offence).
(4) The Crimes (Sentencing) Act 2005 applies to the re-sentencing in the same way that it applies to the sentencing of an offender on a conviction for the relevant offence.
(5) The court’s powers under this section are subject to section 113 (Good behaviour orders—limitations on amendment or discharge).
(6) To remove any doubt, an offender re-sentenced by a court under this section has the same right of appeal as the offender would have had if sentenced by the court on being convicted of the relevant offence.
One of the core good behaviour obligations is not to commit an offence punishable by imprisonment. The conviction entered on the 24 September 2015 breaches that obligation. The options that I have are to take no further action, to give Mr Avis a warning about the need to comply with his good behaviour obligations, give the Director-General directions about his supervision, amend the Good Behaviour Order or, if security has been given, order payment of that security or order the Good Behaviour Order to be cancelled on payment of the security or cancel the order.
It seems to me that most of those options are inappropriate. There is no point in giving him a warning because the Good Behaviour Order has now ended and that applies to the inutility of giving any directions to the Director-General or amending the good behaviour order. No security was given.
The real options for me, therefore, are to take no further action or to cancel the order. If I cancel the order then I am required to re-sentence Mr Avis.
The obligation to comply with Good Behaviour Orders is important and it is part of the condition of allowing a person back into the community and not depriving them of their liberty that they comply with the obligations of the Good Behaviour Order.
Ordinarily, the court would and should take action on a breach of a Good Behaviour Order lest the failure to do so undermines the process itself and makes it unworkable. See my comments in decisions such as Saga v Reid [2010] ACTSC 59 at [99]-[101] and Guy v Anderson [2013] ACTSC 5 at [83]-[89].
In this case, however, there are a number of factors which are relevant in the circumstances. Mr Avis has completed the 300 hours of community service which I required him to complete as a condition of the Good Behaviour Order and that, of course, is perhaps the most significant punitive sting in the order that I made.
Secondly, the offending came at the end of the period of good behaviour, that is only some few months before the Good Behaviour Order ended.
Thirdly, the offence that was committed was of a different kind. It was not a dishonesty offence. It was an offence of driving whilst disqualified, which is a serious offence in itself, as I have indicated in decisions like Cotter v Corvisy (2008) 1 ACTLR 299 at 307-308; [36]-[37]. Nevertheless, it is of a different character and it shows that any further offending committed by Mr Avis has not been a repetition of the offences for which I have to deal with him and originally convicted him.
He has a lengthy list of traffic offences but, clearly, the sentencing Magistrate has taken that into account when making the decision that her Honour made to suspend the sentence of imprisonment that would otherwise be appropriate for driving whilst disqualified.
Whether that is because of the explanation he gave, which the Crown rather queried and suggested might have been not, in fact, a genuine excuse or not is not for me to say. The fact that Mr Avis has been brought back to this Court to face the prospect of some further penalty being imposed is not a matter that I should ignore either.
His need for appearance in court is a reminder to him that the court has continued supervision over him and needs him to be accountable for that. Having considered all the options, I am of the view that was submitted by Mr H Jorgensen, who appeared ably for Mr Avis, and was not controverted by the Crown Prosecutor, that, in all the circumstances, I should take no further action.
Accordingly, I take no further action on the breach of the Good Behaviour Order.
| I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 11 January 2016 |