The Queen v CV

[2013] ACTSC 286

THE QUEEN v CV
[2013] ACTSC 286 (6 November 2013)

CRIMINAL LAW – Judgment and Punishment – Re-sentencing on breach of good behaviour order – No issue of principle

Crimes (Sentencing Administration) Act 2005 (ACT), s 108
Crimes (Sentencing) Act 2005 (ACT), ss 17, 87
Crimes (Child Sex Offenders) Act 2005 (ACT),

R v CV (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 5 September 2012)
R v CV (Unreported, Supreme Court of the Australian Capital Territory, Refshauge ACJ, 11 October 2013).

EX TEMPORE JUDGMENT

No. SCC 55 of 2012

Judge:             Refshauge J
Supreme Court of the ACT

Date:              6 November 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCC 55 of 2012
AUSTRALIAN CAPITAL TERRITORY           )          

THE QUEEN

V

CV

ORDER

Judge:  Refshauge J
Date:  6 November 2013
Place:  Canberra

THE COURT ORDERS THAT:

1. Under s 108 of the Crimes (Sentencing Administration) Act 2005 (ACT), the good behaviour order be amended by deleting the condition that CV complete fifty hours of community service within twelve months.

1. The terms of the good behaviour order be otherwise confirmed.

1. On 5 September 2012, Nield AJ found CV guilty of the offence of engaging in sexual intercourse with a child above the age of ten years, but under the age of sixteen years.  The reasons for his Honour’s approach are set out in R v CV (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 5 September 2012), I do not need to repeat them. His Honour took the view that it was appropriate to proceed without a conviction under s 17 of the Crimes (Sentencing) Act 2005 (ACT), and made a good behaviour order under s 13 of the Act for a period of twelve months from that day. Part of the reason why his Honour did that was to avoid CV being placed on a sex offender’s register (see Crimes (Child Sex Offenders) Act 2005 (ACT)), which he considered was inappropriate having regard to the circumstances of the offence.

1. Unfortunately, on two subsequent occasions, CV has committed offences which are punishable by imprisonment, and therefore breached the good behaviour order, namely, that on two occasions he drove while suspended from driving. The breaches were admitted, and the matter came before me under s 108 of the Crimes (Sentence Administration) Act 2005 (ACT).

1. Under that section, I may, if satisfied that CV has breached any of the good behaviour order obligations, take certain action, including cancelling the order, but if I do so cancel the order, then under s 109 (as it is an order under s 17 of the Crimes (Sentencing) Act 2005 (ACT)), I must convict CV. CV has not, however, committed any act which I consider should change the fundamental approach of Nield AJ and I do not consider it is appropriate to do so.

1. I considered this matter on 11 October 2013, and set out there my reasons for an approach, which gave CV a requirement to undertake community service as a penalty for the breach of the good behaviour order which, as I noted in my reasons, ought to be clearly marked (see R v CV (Unreported, Supreme Court of the Australian Capital Territory, Refshauge ACJ, 11 October 2013). CV has, since then, undertaken nine hours of community service.

1. It has, however, been drawn to my attention that under s 87 of the Crimes (Sentencing) Act, a community service work condition cannot be made to a good behaviour order unless there is a conviction recorded.  There is no conviction recorded.  Accordingly, I considered what to do.  There was really only one option: to mark the disapproval of the breach of the good behaviour order and that is to extend the period of the order.  

1. Given, however, that CV has now completed nine hours of community service work, it seems to me, and no submissions have been made to the contrary, that I should simply remove the community service condition to the good behaviour order, confirm the good behaviour order that was made and which lasts until 9 October 2014 presently, and take no further action.

1. Accordingly, under s 108 of the Crimes (Sentencing Administration) Act, I amend the good behaviour order by deleting the condition that CV complete fifty hours of community service within 12 months.  I confirm the terms of the good behaviour order otherwise.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 27 March 2014

Counsel for the prosecution:  Ms L Taylor
Solicitor for the prosecution:  ACT Director of Public Prosecutions
Counsel for the defendant:  Ms H Cory
Solicitor for the defendant:  Legal Aid Office (ACT)
Date of hearing:  6 November 2013
Date of judgment:  6 November 2013