The Queen v BB
[2015] ACTSC 304
•24 September 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | The Queen v BB |
Citation: | [2015] ACTSC 304 |
Hearing Date(s): | 18 September 2015 |
DecisionDate: | 24 September 2015 |
Before: | Refshauge ACJ |
Decision: | 1. The Good Behaviour Order made on 25 October 2013 be cancelled. 2. The convictions entered for the following offences be confirmed: a) Aggravated burglary at Ngunnawal on 22 April 2011; b) Aggravated burglary at Ngunnawal on 25 April 2011; c) Aggravated burglary at Kambah on 17 November 2011; d) Burglary at Greenway on 17 November 2011; e) Theft of property from the burglary at Greenway on 17 November 2011; f) Taking and using motor vehicle without a consent on 21 November 2011; g) Burglary at Hawker on 24 November 2011; h) Theft of property from the burglary at Hawker on 24 November 2011; i) Damage of property; j) Dishonestly riding in a motor vehicle between 29 September and 9 October 2012; k) Burglary at O’Connor on 13 November 2013; and l) Damaging property on 30 November 2014. 3. For the aggravated burglary at Ngunnawal on 22 April 2011 BB be sentenced to 12 months imprisonment, to commence on 18 March 2013. 4. For the aggravated burglary at Ngunnawal on 25 April 2011, BB be sentenced to twelve months imprisonment to commence on 18 May 2013, that is, to be cumulative as to two months on the sentence for the aggravated burglary at Ngunnawal on 22 April 2011. 5. For the aggravated burglary in Kambah on 17 November 2011, BB be sentenced to ten months imprisonment to commence on 18 September 2013, that is, to be cumulative as to two months on the sentence for the aggravated burglary at Ngunnawal on 25 April 2011. 6. For the theft of property from that aggravated burglary, BB be sentenced to six months imprisonment to commence on 18 September 2013, that is, to be wholly concurrent on the sentence for that aggravated burglary. 7. For the burglary at Greenway on 17 November 2011, BB be sentenced to ten months imprisonment to commence on 18 November 2013, that is, to be cumulative as to two months on the sentence for the aggravated burglary at Kambah. 8. For the theft of property from that burglary, BB be sentenced to six months imprisonment to commence on 18 November 2013, that is, to be wholly concurrent on the sentence for that burglary. 9. For taking and using a motor vehicle without consent on 21 November 2011, BB be sentenced to ten months imprisonment to commence on 18 December 2013, that is, to be cumulative as to one month on the sentence for the burglary at Greenway. 10. For the burglary at Hawker on 24 November 2011, BB be sentenced to eleven months imprisonment to commence on 18 February 2014, that is, to be cumulative as to three months on the sentence for the taking and using the motor vehicle without consent. 11. For the theft of property from that burglary, BB be sentenced to six months imprisonment to commence on 18 February 2014, that is, to be wholly concurrent on the sentence for that burglary. 12. For the offence of damaging property, BB be sentenced to six months imprisonment to commence on 18 September 2014, that is, to be cumulative as to two months on the sentence for the burglary at Hawker. 13. For dishonestly without consent riding in a motor vehicle between 29 September and 9 October 2012, BB be sentenced to eight months imprisonment to commence on 18 November 2014, that is, to be cumulative as to four months on the sentence for the offence of damaging property. 14. For the burglary at O’Connor on 30 November 2012 BB be sentenced to twelve months imprisonment to commence on 18 December 2014, that is, to be cumulative as to five months on the sentence for the dishonestly riding in a motor vehicle without consent. 15. For damaging property on 30 November 2013 BB be sentenced to six months imprisonment to commence on 18 August 2015, that is, to be cumulative as to two months with the sentence for the burglary. 16. That is a total sentence of imprisonment to commence on 18 March 2013 and to end on 17 February 2016. |
Catchwords: | CRIMINAL LAW – Jurisdiction, practice and procedure – judgment and punishment – sentencing – re-sentencing – burglary – aggravated burglary – theft – taking and using a motor vehicle without consent – damaging property – dishonestly without consent riding in a motor vehicle – purposes of a Good Behaviour Order – cancellation of Good Behaviour Order– breach of Good Behaviour Order – repeated breaches – re-offending – failure to undertake community service work condition – young offender |
Legislation Cited: | Crimes Sentencing Act 2005 (ACT), s 64, Ch 8A |
Cases Cited: | Bugmy v The Queen (2013) 87 ALJR 1022 R v BB (Unreported, Australian Capital Territory Supreme Court, Refshauge J, 30 May 2013), |
Parties: | The Queen (Crown) BB (Defendant) |
Representation: | Counsel Mr S McLaughlin (Crown) Mr H Jorgensen (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid (ACT) (Defendant) | |
File Number(s): | SCC 254 of 2012; SCC 409 of 11; SCC 21 of 12; SCC 360 of12 |
REFSHAUGE J:
As a sentencing option a Good Behaviour Order has much to offer. If imposed when a sentence of imprisonment is suspended, it permits an offender to remain in the community if he or she can avoid further criminal offending and perhaps engage in activities to promote a non‑criminal lifestyle, such as gaining and maintaining employment, participating in rehabilitation, forming family relationships and engaging in community activities. At the same time, the imposition of a sentence of imprisonment has the effect of denouncing the conduct and marking out to others who may be likely to engage in it that it is unacceptable, that is general deterrence, and holding some kind of condition over the head of the offender, such that, if the behaviour under the order is not compliant, not good behaviour, there can be sanctions, including the severe sanction of imprisonment.
If there are minor breaches or ones that do not require imprisonment, these can be managed by extending the order or imposing more onerous or penal sanctions, such as a community service work condition or a fine to mark the seriousness of the breach, but without needing to impose a term of imprisonment, in particular, the term of imprisonment that was suspended.
Extensions of such Good Behaviour Orders can, however, have unfortunate consequences for they mean that any punishment becomes distant in time from the actual offending, and this is generally not desirable from a criminological point of view. There is also the risk of net‑widening, as breach of a regulatory kind is often inevitable with offenders whose chaotic lifestyle does not always lend itself to compliance, in the way that ordinary society may expect.
In this case, BB was originally sentenced for offences committed in September 2009 and later, that is now six years ago. At the time BB was 13. That is, for a young man, a significant time span, mainly nearly a third of his life.
Despite that, there have been a number of breaches of the Good Behaviour Orders made, including by reoffending.
I have set out the circumstances in The Queen v BB [2013] ACTSC 290 (R v BB [2013]). That decision traced the history of the proceedings since the first sentencing for the 25 sentences of dishonesty and one of damaging property, dealt with in 2009. The facts of those matters are set out in my remarks on sentence The Queen v BM (Unreported, Australian Capital Territory Supreme Court, Refshauge J, 14 February 2012). I do not need to repeat them, but take them into account.
The facts of the further offences committed in 2012 were set out in R v BB (Unreported, Australian Capital Territory Supreme Court, Refshauge J, 30 May 2013), and again I do not need to repeat them. I take these also into account. I then suspended a sentence of imprisonment and made a Good Behaviour Order, which extended the term of the previous order and included a community service work condition.
Some further offending occurred after that, which breached that order. They were offences of a different kind and arising out of an interpersonal dispute outside the Territory. I made further orders of imprisonment in R v BB [2013] and again extended the Good Behaviour Order and increased the length of the community service work condition.
BB has now appeared before me because he has breached the Good Behaviour Order by committing a further offence, this time by a different offence again, namely of drink-driving. He also has breached the Good Behaviour Order by failing to undertake the community service work imposed as a condition of the order. Of the 160 hours of work he has completed only 22 hours, leaving 138 hours to complete. He has admitted the breaches.
The further offence was one that, by itself, may have entitled him to some leniency. It was an offence of driving with a prescribed concentration of alcohol, but at a level 4 reading, the highest reading under the legislation.
Nevertheless, the court in convicting him made a 12‑month Good Behaviour Order and disqualified him from holding or obtaining a driver licence for 10 months. In the circumstances, such a lenient sentence means that the explanation for the offence given by BB was accepted. That is conveniently set out in the report of the Court Alcohol and Drug Assessment Services provided to the Magistrates Court on sentencing, which said:
[BB] reported that at the time of the offence for which he is before the court he had been at the home of his girlfriend’s sister for an occasion. He reports to have consumed four to five cans of full‑strength beer over a couple of hours in the evening. He reports that an argument took place and despite apologising that he was assaulted by his girlfriend’s brother, thought to be aged 24 years.
[BB] reports attempting to escape the violence by jumping into his car and further reports that the brother then swung a piece of timber at the vehicle. BB reports to have been attempting to drive away with a sense of urgency and reports he gave no thought to his level of intoxication. He reports to have been detected by police only ‘five metres’ away from this altercation. BB reported that his intention had been to remain at the home overnight, prior to the violent episode.
The Crown sought to bring some evidence that suggested that this was not an accurate description of the offending and that BB had lied to police. I rejected that attempt, however, because it seemed to me that I should not permit the findings of the Magistrates Court to be controverted.
During the hearings on the breach of the Good Behaviour Order, I granted BB bail initially to permit him to continue with the community service work. That has not happened for various reasons, including some illness.
There has also been a failure to notify ACT Corrective Services of his difficulties with illness in good time or, in some cases, at all. The excuse that he has no credit on his phone, especially when he is living with his girlfriend, who presumably also had a phone, seems to me no real answer.
In all, I have had to cancel the Good Behaviour Orders I have made on five occasions. A further Good Behaviour Order has been made on each occasion when the sentence of imprisonment has been reimposed and suspended. Those orders have also been breached in various ways, notably by further offending.
While it is important to ensure that a response to a breach of a Good Behaviour Order is proportional (The Queen v Marston (1993) 60 SASR 320 at 322), it is also important that the regime is not undermined by a failure to take appropriate action. See Saga v Reid [2010] ACTSC 59 at [99]-[101].
By themselves, the breaches I have now to consider are not the most serious, but they have to be placed in the context of the history of the matter, including the continued breach of the Good Behaviour Order over the years.
Subjective circumstances
I have set out BB’s subjective circumstances in R v BB [2013] and earlier sentencing remarks. I do not need to repeat them. While he is still a relatively young man, he is now beyond the specific reach of the special provisions in Ch 8A of the Crimes Sentencing Act 2005 (ACT), though these still apply to the actual offences were I to re-sentence BB. His youth has some mitagatory factor, though the continued offending reduces the effect that this can have on the ultimate outcome. Clearly, further offending is a more serious breach of a good behaviour order, rather than failure to comply with regulatory obligations.
Failure to complete community service work is significant, probably not as serious as further offending, but, as it is the punitive content of a Good Behaviour Order, the failure to comply with it is not to be ignored. I am also acutely aware of BB’s disadvantaged upbringing, which, as the High Court has said, does not diminish over time. See Bugmy v The Queen (2013) 87 ALJR 1022 at 1032, [43]-[45].
Also mitigatory is that BB has remained in contact with ACT Corrective Services and engaged well in his supervision conferences. That may have had some beneficial effect. When he does attend to community service work he does perform it adequately. BB felt that the persons with whom he was associating in the community service work gang were undesirable, which may be why his response to supervision was better than his response to attending at community service work.
I previously imposed a prison sentence for the breaches of the Good Behaviour Order when substantial new offences were committed of the same kind as originally committed. These current breaches are clearly less serious than those.
I am also concerned that he is not been able to undertake urinalysis. The last occasion of which I am aware, he attended at the pathology laboratory, but could not produce a specimen. Given the influence of drugs in his offending it is of concern that that has not been able to be monitored.
Consideration
I take into account the purposes of sentencing. I do note that when I must resentence him for multiple offences I must take care to ensure that he is not punished twice for overlapping elements of these offences. I must also respect the principle of totality and where necessary make sentences partially or wholly concurrent to achieve that.
BB has now served all of the sentences for a number of the offences for which I originally sentenced him. He has also served a number of sentences for which I subsequently sentenced him when I re-sentenced him to imprisonment in R v BB [2013] from 10 February 2013 to 10 October 2014.
While the total sentence for which the most recent Good Behaviour Order was made was for 25 months imprisonment, he served 10 months of that. He has also completed 22 hours of community service work. In addition, he has been under supervision for a considerable time and, since October 2014, the only further offending has been the drink driving offence, which I do not regard as particularly serious, as indeed was the attitude of the Magistrates Court in sentence. Nevertheless, it is a breach of the Good Behaviour Order and, in particular, it is a further offence which in itself is more serious than other breaches. Thus, it is a breach and it is one I need to take seriously. It does show, however, an improvement in his behaviour and perhaps some recent rehabilitation.
I also consider that further conditional liberty at this time has the capacity to increase the chance of BB returning to the criminal justice system. In my view he needs now to pay his debt to the community, and then he needs to set about rebuilding a life, which is outside the continued supervision of the courts. Because of this, I do not propose suspending the 5 months of the sentence left to serve. Because of s 64 of the Crimes (Sentencing) Act I cannot make a non-parole period.
Taking all these matters into account, I consider that a term of imprisonment is inevitable. I consider that I should take into account his youth and the other matters, to which I have referred. I do note that when, as I must, I cancel the Good Behaviour Order there are some offences for which I do not need to resentence him, as the sentences then imposed have now expired. Accordingly, I cancel the Good Behaviour Order made in 2013.
I confirm the convictions entered for the offences of:
a. Aggravated burglary at Ngunnawal on 22 April 2011;
b. Aggravated burglary at Ngunnawal on 25 April 2011;
c. Aggravated burglary at Kambah on 17 November 2011;
d. Burglary at Greenway on 17 November 2011;
e. Theft of property from the burglary at Greenway on 17 November 2011;
f. Taking and using motor vehicle without a consent on 21 November 2011;
g. Burglary at Hawker on 24 November 2011;
h. Theft of property from the burglary at Hawker on 24 November 2011;
i. Damage of property;
j. Dishonestly riding in a motor vehicle between 29 September and 9 October 2012;
k. Burglary at O’Connor on 13 November 2013; and
l. Damaging property on 30 November 2014.
The sentences I now impose take into account pre-sentence custody, his community service work, his engagement under supervision, his behaviour since his release on October 2014 and totality.
BB, please stand:
1. For the aggravated burglary at Ngunnawal on 22 April 2011 I sentence you to 12 months imprisonment, to commence on 18 March 2013 to take into account the matters to which I have referred.
2. For the aggravated burglary at Ngunnawal on 25 April 2011, I sentence you to 12 months imprisonment to commence on 18 May 2013. That is to be cumulative as to two months on the sentence for the aggravated burglary at Ngunnawal on 22 April 2011.
3. For the aggravated burglary at Kambah on 17 November 2011 I sentence you to 10 months imprisonment to commence on 18 September 2013. That is to be cumulative as to two months on the sentence for the aggravated burglary at Ngunnawal on 25 April 2011.
4. For the theft of property from that aggravated burglary I sentence you to six months imprisonment to commence on 18 September 2013. That is to be wholly concurrent on the sentence for that burglary.
5. For the burglary at Greenway on 17 November 2011 I sentence you to 10 months imprisonment, to commence on 18 November 2013. That is to be cumulative as to two months on the sentence for the aggravated burglary at Kambah.
6. For the theft of property from that burglary I sentence you to six months imprisonment, to commence on 18 November 2013. That is to be wholly concurrent on the sentence for burglary.
7. For taking and using a motor vehicle without authority on 21 November 2011 I sentence you to 10 months imprisonment to commence on 18 December 2013. That is to be cumulative as to one month on the sentence for the burglary at Greenway.
8. For the burglary at Hawker on 24 November 2011 I sentence you to 11 months imprisonment to commence on 18 February 2014. That is to be cumulative as to three months on the sentence for the taking and using a motor vehicle without consent.
9. For the theft of property from that burglary I sentence you to six months imprisonment to commence on 18 February 2014. That is to be wholly concurrent on the sentence for burglary.
10. For the offence of damaging property I sentence you to six months imprisonment to commence on 18 September 2014. That is to be cumulative as to two months on the sentence for burglary at Hawker.
11. For the dishonestly without consent riding in a motor vehicle between 29 September and 9 October 2012 I sentence you to eight months imprisonment to commence on 18 November 2014. That is to be cumulative as to four months on the sentence for the offence of damaging property.
12. For the burglary at O’Connor on 13 November 2012 I sentence you to 12 months imprisonment, to commence on 18 December 2014. That is to be cumulative as to five months on the sentence for dishonestly riding in a motor vehicle without consent.
13. For damaging property on 13 November 2013 I sentence you to six months imprisonment to commence on 18 August 2015. That is to be cumulative as to two months on the sentence for burglary.
14. That is a total sentence of imprisonment to commence on 18 March 2013 and to end on 17 February 2016.
[His Honour then spoke directly to BB]
While I have some concern about your capacity to reintegrate with the community upon your release, I consider that conditional liberty has not been a benefit at this stage and that you should be given the opportunity to live without this hanging over your head after you have paid your debt to society by this time in prison. I am sorry that this is a tough sentence but, at the end of the day, you have to take responsibility for yourself, and I consider that once you have paid your debt to society you should have the opportunity to live without the continued conditional liberty hanging over your head.
| I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Chief Justice Refshauge. Associate: Date: 8 October 2015 |
5
1