The Queen v Thomas Carney (No 3)
[2015] ACTSC 227
•30 July 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | THE QUEEN V THOMAS CARNEY (NO 3) |
Citation: | [2015] ACTSC 227 |
Hearing Date(s): | 30 July 2015 |
DecisionDate: | 30 July 2015 |
Before: | Refshauge J |
Decision: | 1. The Good Behaviour Order made on 27 February 2014 be cancelled. 2. The conviction for the offence of using electronic means to suggest to a young person that she take part in an act of a sexual nature between 6 and 27 July 2012 be confirmed. 3. Thomas Carney be sentenced to imprisonment for three months to commence today, 30 July 2015. 4. The sentence be served by periodic detention to commence today and end on 29 October 2015. 5. The day of the first detention period is to start on 7 August 2015 when Thomas Carney is to report, by 7:00 pm, to the Symonston Periodic Detention Centre. 6. The conviction for the offence of engaging in sexual intercourse with a young person on 26 July 2012 be confirmed. 7. Thomas Carney be sentenced to imprisonment for six months to commence today, 30 July 2015. 8. That sentence be suspended today for a period of two years. 9. Thomas Carney be required to sign an undertaking to comply with the offenders' good behaviour obligations under the Crime (Sentence Administration) Act 2005 for a period of two years from today with the following conditions. (a) A probation condition that he accept supervision by the Director General or her delegate for a period of two years or such shorter period as the person supervising him considers appropriate and that he obey all reasonable directions of the person supervising him, especially as to an appropriate counselling programs. (b) That he subject himself to assessment for admission to the Cognitive Behavioural Treatment Program of ACT Corrective Services and, if suitable and if admitted, complete the program. (c) If he is not admitted to the Cognitive Behavioural Treatment Program, he discuss with the person supervising him an appropriate other program or programs and comply with any directions of that person as to assessment for admission to and completion of any such program. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Jurisdiction, practice and procedure – judgment and punishment – sentence – breach of Good Behaviour Order – further offending – failure to comply with reporting conditions under the Crimes (Child Sex Offenders) Act 2005 (ACT) |
Legislation Cited: | Crime (Sentence Administration) Act (ACT) s 110 Criminal CodeAct1995 (Cth) s 474(17)(1) |
Cases Cited: | Barbaro v The Queen (2014) 253 CLR 58 Gyory v The Queen [2012] ACTCA 28 |
Parties: | The Queen (Crown) Thomas Carney (Accused) |
Representation: | Counsel Ms S McMurray (Crown) Mr J Sabharwal (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Lynch Solicitors (Accused) | |
File Number(s): | SCC 20 of 2013 |
REFSHAUGE J:
The suspension of a sentence of imprisonment is a useful sentencing practice which allows for the court to record the seriousness of an offence and to meet the needs for purposes such as general deterrence and the recognition of the harm done to a victim, but permitting an offender to remain in the community if there is little or no risk to the community, often created or reinforced by appropriate matters such as family support, appropriate rehabilitation courses and employment which are likely to encourage the avoidance of further offending.
Set out in s 86 of the Crimes (Sentence Administration) Act 2005 (ACT) and the court order imposing the sentence are the conditions of the Good Behaviour Order, which order must be imposed when a sentence of imprisonment is suspended. See s 12(3) of the Crime (Sentencing) Act 2005 (ACT). They are the basis on which the court is prepared to permit the offender to remain in the community and provide some mechanism to allow the community to be protected.
As a consequence, a breach of the conditions of the Good Behaviour Order, especially by further offending, becomes a matter of seriousness to the courts; indeed, there are statements by courts which recognise the need for vigilance in ensuring the breaches are the subject of an appropriate response. Thus King CJ in R v Marston (1993) 60 SASR 320 at 322, said:
[T]he non-revocation of suspended sentences tends to undermine the integrity of the system suspended sentences and their effectiveness as a means of deterring future offenders.
See also Director Public Prosecutions New South Wales v Cooke (2007) 168 A Crim R 379 at 386-7; Saga v Reid [2010] ACTSC 59 at [99]-[101].
On 27 February 2014 I sentenced Thomas Carney to a total of eight months imprisonment for two offences. The first offence was using electronic means to suggest to a young person that she take part in an act of a sexual nature and the second was engaging in sexual intercourse with a young person.
I suspended the sentence for two years from 27 February 2014 and made a Good Behaviour Order for two years with a probation condition and a condition that Mr Carney submit himself for assessment for admission to the ACT Corrective Services Adult Sex Offenders Program and, if assessed as suitable and admitted to the Program, participate in and complete the program. See R v Carney (No 2) [2014] ACTSC 61.
As a consequence of these sentences, Mr Carney became a registrable offender under the Crimes (Child Sex Offenders) Act 2005 (ACT).
On 22 April 2015 Mr Carney was convicted of three offences. The first one was an offence of using a carriage service to menace or harass - an offence against s 474(17)(1) of the Criminal Code Act 1995 (Cth) which attracts a maximum penalty of imprisonment for three years. I call this the principal offence. It was the most serious.
The investigation into that offence led to Mr Carney being prosecuted for breaches of the Crimes (Child Sex Offenders) Act. These were an offence of failing to take all reasonable steps to report personal details following a sentence for a registrable offence, an offence under s 23 of the Act which provides for a maximum penalty of 200 penalty units (at the time, a maximum fine of $28,000) and two years imprisonment and an offence of failing to report a change of details required by a registrable offender, an offence contrary to s 54 of the same Act and attracting the same maximum penalty.
Mr Carney was sentenced as follows:
(1) for the charge of using a carriage to menace or harass he was convicted and released on a Good Behaviour Order for eighteen months with a recognizance in the sum of $1,000 and was fined $1,000;
(2) on the charge of failing to report after sentencing, he was convicted and fined $750;
(3) on the charge of failing to report a change of details he was convicted and fined $250.
These convictions constituted a breach of the Good Behaviour Order that I made on 27 February 2014.
As a result, under s 110 of the Crime (Sentence Administration) Act (ACT), I am required to cancel the Good Behaviour Order that I made and either impose the suspended sentence imposed for the offences or resentence the offender for the offences.
As Rares J said in Gyory v The Queen [2012] ACTCA 28 at [10], the court should have, when considering a breach of the Good Behaviour Order, "before it as much material as is relevant to the offending for which the offender has been resentenced as is available". It is also appropriate for me to have as much detail as reasonably possible of the breaches which, in this case, includes details of the facts of the offences which constitute the breaches.
I had before me the Statement of Facts which was tendered, apparently without objection, in the Magistrates Court before the learned Sentencing Magistrate.
In brief, Mr Carney was interviewed by members of the Child Sex Offenders Reporting Team on 12 March 2014, shortly after he had been sentenced by me. He was provided with a notice of reporting obligations and information on the details he was required to provide under the Crimes (Child Sex Offenders) Act. At that time, however, he was the user of an electronic application, being a dating application, Badoo. This was a matter he was required to report and he did not do so.
At the time I sentenced Mr Carney he was unemployed, but subsequently obtained employment at a licensed premises in Civic commencing on 5 June 2014. Although required to report a change of employment, Mr Carney failed to do so.
The most significant offence, the principal offence as confirmed in the relative sentence imposed, arose out of his use of the Badoo application.
On that application he made contact with a woman. Subsequently she allowed him access to some details about herself which included an image of herself topless and others of herself wearing underwear.
She and Mr Carney later met but, after that meeting, she decided that she did not want to pursue any relationship with him.
Mr Carney continued to contact her electronically and, perhaps not unreasonably, sought an explanation from her as to why she was no longer interested.
She initially said that she had found someone else, which should have ended the communications, but Mr Carney, probably improperly, continued to pester her about her reason for rejecting him. She finally admitted that she was not ready for any kind of commitment and that she had lied about finding someone else. Mr Carney continued to pester her, however, and he took exception to her explanation and her lie. He then increased the pressure on her by referring to the picture to which he had had access and he asked her, "What would you do for me to delete them in front of you?" He suggested that she should have sexual intercourse with him and if she did so he would delete the pictures.
Such behaviour was, of course, completely unacceptable. The fact is, if someone does not wish to continue with a relationship, particularly one as inchoate as this one, then he or she owes no obligation to explain why and certainly should not be coerced into any kind of sexual activity as a result. The woman reported the matter to police and they investigated and the other offences came to light in the course of that investigation.
As to the original offences, the facts are set out in R v Carney [2013] ACTSC 266 at [154]. I rely on what I there said and take that into account as though the comments were included in these reasons.
I have set out Mr Carney's personal circumstances in my reasons for sentence in R v Carney (No 2) at [7] – [15]. I do not need to repeat what I there said and I take the matters there set out into account as though those paragraphs were included in these reasons.
I also had the Pre-Sentence Reports provided to the Magistrates Court for sentencing in the fresh proceedings and I heard some evidence from Mr Carney's mother. As a result, I can make the following findings.
Initially, as I indicated above (at [15]), Mr Carney was unemployed when I sentenced him and later obtained employment at a licensed premises in Civic. He lost his employment with the licensed premises as a result of the police investigation. In about September 2014, however, he gained further employment with a labour hire company and has continued working for that company. The company clearly knows of his obligations as a registered child sex offender and has been able to manage that successfully. For example, he was once directed to work at a primary school, which would be a breach of his obligations, but the company accepted that limitation and made other arrangements. He has, it appears, been working on a casual basis - but effectively full‑time hours and mostly Monday to Friday. He often starts early, sometimes as early as 4:00 am, and sometimes works long hours up to 10:00 pm. Mr Carney continues to live at home with his parents and his younger sister.
After my sentence, Mr Carney was assessed for the Adult Child Sex Offenders Program in accordance with the condition of the Good Behaviour Order but was found to be unsuitable. Accordingly he did not participate in it. So far as this is concerned, it is interesting that the most recent Pre-Sentence Report for the Magistrates Court records that, after he was assessed by the ACT Corrective Services psychologist for suitability for individual treatment and advised that he would not be required to continue psychological counselling, it was suggested that he should be reassessed for the Adult Sex Offenders Program. He was so assessed but apparently was again found to be unsuitable. I find that surprising but, in the absence of further evidence, cannot make any further comment. He has, however, been assessed as suitable for a Cognitive Behavioural Treatment Program conducted by ACT Corrective Services which may well address the relevant issues involving his criminal behaviour.
The Pre-Sentence Reports noted that there were no aggravating elements of alcohol or drug abuse involved in the fresh offending and added:
Some consideration should be given to arguments of immaturity and disorganisation as far as the breaches of the registration offences are concerned.
As to the principal offence, the author commented:
Both offences involve Mr Carney having expectations from a liaison with a female that the victims did not share. A sense of entitlement to react with anger when confused or bewildered by the messages he was receiving and an inability to appreciate the impact of his actions on the victim.
In the Pre-Sentence Report before me, which I accepted, he was assessed as having a low risk for general criminality, though a medium to high risk for sexual offending. In the most recent report that assessment is repeated.
Breach of a Good Behaviour Order
I have considered the approach to breaches of Good Behaviour Orders in Guy v Anderson [2013] ACTSC 5 at [83]-[87]. In summary, there is no presumption in favour of imposing the original sentence that has been suspended though, generally, a breach of the conditions of a Good Behaviour Order, especially by further offending, will result in the offender serving the sentence that was suspended.
In Guy v Anderson at [88]-[91], I also commented on the issue of proportionality. What is required is that the court have regard to the seriousness of the breach with respect to the consequences of the breach and in considering how to proceed.
Clearly, a breach constituted by further offending is more serious than, for example, a breach constituted by an administrative failure such as for failing to report; though compliance with directions, especially those requiring compliance with activities designed to eliminate or at the very least moderate antisocial tendencies and criminal behaviour, will be less serious.
In this case, the principal offence was serious and, as noted in the Pre-Sentence Reports, was similar to the offending for which I dealt with Mr Carney earlier.
Nevertheless, it is true that Mr Carney is relatively immature and his Attention Deficit Hyperactivity Disorder (ADHD) has led him into difficulties in his interactions with people and, as his mother described it, his inability to "read situations correctly". She considered he was immature for his age.
While that does little to reduce the seriousness of the offences, it does somewhat explain them.
As to the other offences, I have set out in Weston v Arley [2012] ACTSC 138 at [84]-[85] the importance and significance of the registration regime under the Crimes (Child Sex Offenders) Act and the need for appropriate recording. In this case, of course, the principal offence was one that was committed using an electronic application that should have been reported. I cannot find, and there was no suggestion in any of the materials, that the offence would have been prevented had Mr Carney reported his use of that application; indeed it did not appear that the failure to report had led to any difficulty in investigation or prosecution.
Consideration
I accept that Mr Carney has admitted the breach of the Good Behaviour Order. He had, of course, little choice in that, as the entry of the convictions was a matter easily proved by the prosecution and clearly a breach of the court conditions of the Good Behaviour Order set out in s 86(1) of the Crimes (Sentence Administration) Act, the evidence supporting the breach was overwhelming.
While the importance of compliance with the supply of details required under the child sex offender registration scheme is important, I consider that Mr Carney's culpability was not high. That is clear from an assessment of the penalties imposed by the Magistrate, which may be assessed having regard to the comments I made about the scheme and its importance in Weston v Arley. In this case, Mr Carney’s immaturity and the explanation given by him for failure to report moderated the culpability to some extent.
Again, the principal offence is a serious one but, as explained above (at [33]), his immaturity and ADHD is a relevant factor that moderates his culpability.
I am also concerned that Mr Carney was unable to complete the Adult Sex Offenders Program. It may be that the Program was unsuitable for him, but I was not helped by any suggestion in the original Pre-Sentence Report that, were he to be unsuitable, other programs might be beneficial. I did make a probation condition for the Good Behaviour Order that would have allowed reasonable directions to be given which would include the requirement for him to undergo appropriate programs. No such program was the subject of any such direction, as far as I am aware, even though it now appears that he has been assessed as suitable for the Cognitive Behavioural Treatment Program, which may well have assisted him in the course of the Good Behaviour Order that I imposed.
While this failure is not one that mitigates the culpability for the offences committed by Mr Carney and the breach of the Good Behaviour Order that they constituted, it underlines, perhaps, a reason why the opportunity given by a suspended sentence was not one of which Mr Carney was able to take full advantage and which would prevent further criminal activity.
Nevertheless, it would be quite inappropriate to ignore the breach and take no action or to take limited action such as, for example, merely extending the period of the Good Behaviour Order. These were serious breaches and offences that had some similarity for those for which I imposed a sentence and they must be treated accordingly.
It was submitted by the Crown, and I accept, that no sentence but a sentence of imprisonment should be imposed.
Mr J Sabharwal, who appeared ably for Mr Carney, submitted that I could permit Mr Carney to serve the sentence by periodic detention. The Crown did not demur, although Ms S McMurray, who appeared ably for the Crown, did feel some constraint imposed upon what she could submit as a result of the decision of the High Court in Barbaro v The Queen (2014) 253 CLR 58. The extent of that decision in restraining submissions of prosecution counsel has not yet been fully explored but I appreciated Ms McMurray's assistance.
As Ms McMurray properly pointed out, I should be, and am, disappointed that despite the opportunity I gave Mr Carney, he has been unable to meet my expectations.
As I said when sentencing Mr Carney on the last occasion (at [38]):
One of those conditions is that you do not commit any further offences punishable by imprisonment and that includes things like drink driving. I am not just talking about sexual offences, but any offences involving punishment by imprisonment. If you do commit such offences, you can be brought back before me and I can sentence you to prison and take other steps that are necessary. Quite frankly, I do not expect that that will happen and I expect that this has been a lesson to you and that the courts will not see you again but you need to understand what the consequences are.
It is troubling that, so soon after making the position clear to Mr Carney, he was unable to comply with his obligations as a registrable offender and then committed more offences and, in the end, a very serious, offence.
I note in the most recent Pre-Sentence Report that Mr Carney has been assessed as unsuitable for community service work because of the nature of his prior convictions and his employment obligations. He has been assessed, however, as suitable for periodic detention.
It seems to me, however, that I should also make a Good Behaviour Order for an extended period. I propose to make a more express condition about the support that, in my view, it is appropriate that Mr Carney receives from Corrective Services for the purpose of ensuring that he can remain in the community. In that context, the fact that he continues to have family support and is in employment is important, although I appreciate that rehabilitation is not always easy or simple in cases such as this.
I take into account the matters I am required to take into account under s 33 of Crime (Sentencing) Act of which I am aware and which have been set out in these reasons and in my earlier reasons, which I have also taken into account.
Mr Carney, please stand:
1. I cancel the Good Behaviour Order I made on 27 February 2014.
2. I confirm the conviction for the offence of using electronic means to suggest to a young person that she take part in an act of a sexual nature between 6 and 27 July 2012.
3. I sentence you to imprisonment for three months to commence today.
4. I direct that the sentence be served by periodic detention to commence today and end on 29 October 2015.
5. I direct the day of the first detention period is to start on 7 August 2015 when you are to report, by 7:00 pm, to the Symonston Periodic Detention Centre.
6. I confirm the conviction for the offence of engaging in sexual intercourse with a young person on 26 July 2012.
7. I sentence you to imprisonment for six months to commence today.
8. I suspend that sentence today for a period of two years.
9. I require you to sign an undertaking to comply with the offenders' good behaviour obligations under the Crime (Sentence Administration) Act 2005 for a period of two years from today with the following conditions:
(a) A probation condition that you accept supervision by the Director General or her delegate for a period of two years or such shorter period as the person supervising you considers appropriate and that you obey all reasonable directions of the person supervising you, especially as to appropriate counselling programs;
(b) That you subject yourself to assessment for admission to the Cognitive Behavioural Treatment Program of ACT Corrective Services and, if suitable and if admitted, complete the program;
(c) If you are not admitted to the Cognitive Behavioural Treatment Program, you discuss with the person supervising you an appropriate other program or programs and comply with any directions of that person as to assessment for admission to and completion of any such program.
| I certify that the preceding fifty [50] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Refshauge. Associate: Date: 3 September 2015 |
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