The Queen v Avis

[2015] ACTSC 382

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
Saga v Reid [2010] ACTSC 59

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:

1. 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.

1. 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.

1. 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.

1. 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.

1. 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,…