SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

[2015] ACTSC 306

1. The convictions for the three offences of driving whilst disqualified from holding or obtaining a driver licence on 20 and 31 October 2014 and 28 January 2015 be confirmed.

2. For the offence committed on 20 October 2014, Mr Bedford be sentenced to 4 months imprisonment to commence on 25 August 2015 to take into account pre-sentence custody.

3. That sentence be suspended after 2 months, namely on 24 October 2015, for 12 months.

4. Mr Bedford is required to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 12 months from 24 October 2015.

5. For the offence committed on 31 October 2014, Mr Bedford be sentenced to 6 months imprisonment to commence on 25 October 2015, that is to be wholly cumulative on the earlier sentence.

6. The sentence in Order 5 be served by periodic detention, the first detention period to commence on 30 October 2015 and the last period on 22 April 2016 and that he report to the Symonston Periodic Detention Centre at 7.00 pm on 30 October 2015.

7. For the offence committed on 28 January 2015, Mr Bedford be sentenced to 7 months imprisonment to commence on 25 April 2015.

8. That sentence be suspended from 25 April 2015 for 18 months from that date.

9. Mr Bedford is required to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 18 months from 25 April 2016 with a probation condition that he be under the supervision of the director-general or her delegate for 18 months or such lesser period as the person supervising you considers appropriate and obey all reasonable directions of the person supervising him, especially as to treatment or counselling for alcohol addiction and abuse and for mental health issues.

CRIMINAL LAW - Jurisdiction, practice and procedure - judgment and punishment - appeal from the Magistrates Court - - sentencing - re-sentencing - driving a motor vehicle whilst disqualified from holding or obtaining a licence - traffic offences - breach of bail undertaking - repeat offender - extensive criminal record - sentencing principles - first time serving a sentence of full-time imprisonment - shorter than usual period of full-time imprisonment - traumatic childhood - mental health issues - loss of housing upon release - periodic detention

Crimes (Sentence Administration) Act 2005 (ACT), ss 7, 78(5), 89(5)

Road Transport (Driver Licensing) Act 1999 (ACT), s 32(1)(a)

Bedford v Earle (No 2) [2015] ACTSC 309

Eastman v Commissioner for Housing for the Australian Capital Territory [2006] ACTSC 52; (2006) 200 FLR 272

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

O'Connor v Burnley (Unreported, Supreme Court of South Australia, Bollen J, 1325 of 1989, 13 July 1989)

Ring v Beath [2009] ACTSC 19

R v Verdins [2007] VSCA 102; (2007) 16 VR 269

Case Title: Brett Jason Ford v Richard Karl Bedford

1. Having upheld the appeal of the appellant, Richard Bedford, I must now re-sentence him for the three offences to which he has pleaded guilty, namely that, being a repeat offender, he drove a motor vehicle on three occasions, that is on 20 and 31 October 2014 and 28 January 2015, when he was disqualified from holding or obtaining a licence.

2. That offence, contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) carries, for a repeat offender, a maximum penalty of 100 penalty units (that is, a fine of $15,000) and imprisonment for one year.

3. Mr Bedford pleaded not guilty to each offence. He did not deny the offending behaviour or his knowledge of the disqualification. There was a legal challenge which was unsuccessfully mounted. As a result, he was found guilty.

4. I have set out the facts and the subjective circumstances of Mr Bedford in the reasons for upholding the appeal. See Bedford v Earle (No 2) [2015] ACTSC 309. I do not have to repeat them, but I take them into account.

5. In re-sentencing, I take into account the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). In this case, general deterrence plays an important part as does specific deterrence. Nevertheless, for a man who has made a valuable contribution to the community through his work, rehabilitation, if it can be achieved, is advantageous and worthwhile.

6. I have read all the relevant material available to me from the sentencing proceedings before the learned sentencing Magistrate, including the Report of psychologist, Mr Leigh Nomchong.

7. I see no reason not to rely on Mr Nomchong's Report, which I have carefully read. It is supported by the evidence from officers of Directions ACT and by Mr Bedford's oral evidence at sentencing. I accept that Mr Bedford is now remorseful and appreciates the significance and impropriety of his criminal offending.

8. Mr Bedford has sought and, until his imprisonment, was receiving professional assistance and I accept that he has made significant progress towards his rehabilitation.

9. His criminal record, especially for traffic offences, is appalling and, together with the circumstances of the offending, means that no other sentence than a sentence of imprisonment is appropriate. Nevertheless, I accept that, since he was imprisoned in January for a brief period, he has not driven and that the shock of incarceration has been a potent factor in causing him to address his criminal behaviour.

10. This is what is sometimes called "the clang of prison gates" principle. See O'Connor v Burnley (Unreported, Supreme Court of South Australia, Bollen J, 1325 of 1989, 13 July 1989). While this "salutary effect" is significant and to be taken into account, I do not consider that it is sufficient in the circumstances.

11. As he has not experienced full-time imprisonment before, I accept that a shorter than usual period of full-time imprisonment is appropriate for the reasons set out in Ring v Beath [2009] ACTSC 19 at [31]- [36]. That approach, however, cannot overbear the need for proportionate punishment.

12. The offences are serious and attract the possibility of a sentence of imprisonment, though the maximum penalty suggests that they should not be regarded as being as serious as offences of common assault, dishonestly taking Territory property or impersonating a police officer. See Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at 133; [31].

13. Nevertheless, they are serious versions of the offence for the circumstances make them examples of contumacious offending, as I described in Cotter v Corvisy (2008) 1 ACTLR 299 at 307-8; [35]-[39]. This is especially so in the case of the second offence and, to a lesser extent, of the third offence.

14. The precise nature of the offences is relevant. The first involved some slight breach of the road rules, sufficient to draw Mr Bedford to police attention, but not enough either to prosecute him for any offence or issue him with a traffic infringement notice.

15. The second was serious because it was committed on the day after he had appeared in court when he knew that there was a serious allegation that any driving was in breach of a court order and the law and for which he had given a bail undertaking including that he not drive or be in the driver's seat of a motor vehicle. There was, however, nothing about his manner of driving that drew him to the attention of police.

16. As to the third occasion of driving, he, again, was not driving in a manner that drew the attention of the police to him, but, as well as the court ordered disqualification, the bail conditions were still in place.

17. In particular, given his history, I note that he was not affected by alcohol on any of the occasions, which would have been a seriously worrying circumstance, but which is some evidence of the success of his rehabilitation which he started when, before he committed the third offence, he commenced counselling with Mr Nomchong.

18. I also accept that there is a relationship between his obviously traumatic childhood and his current mental impairment on the one hand and his offending on the other. His evidence to the Magistrates Court is entirely consistent with the explanation given by Mr Nomchong who opined:

Mr Bedford has been subjected to significant physical and psychological assault over his life and has come close to death on at least two occasions, and this has produced trauma, depression and anxiety within him. These symptoms have been exceptionally debilitating and has made him vulnerable to any kind of significant emotional stress.

His also has an obsessive fear of letting work down, or not being there for his children. When significantly emotionally distressed over these two issues, Mr Bedford has made the impulse decision to drive his vehicle whilst unlicensed i.e. to pick up his children or to get to work and avoid being late.

19. This, in my view, brings into operation the principle set out in R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at 276; [32], namely:

1. The condition may reduce the moral culpability of the offending conduct as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

20. I also take into account Mr Nomchong's opinion that a full-time custodial sentence "will be an extremely challenging psychological crisis for him". This brings into operation a further principle set out in R v Verdins at 276; [32], namely:

5. The existence of the condition at the date of sentencing ... may mean that a given sentence will weigh more heavily on the offender than a person in normal health.

21. Application of both of those principles requires some, if limited, moderation of the sentence to be imposed.

22. I also had an affidavit from Mr Bedford's mother to be read on re-sentencing if I uphold the appeal. I have read it. The prosecution was offered but declined the opportunity to cross-examine the deponent of the affidavit.

23. In it, she deposes of his prison sentence that he will, on his release, be homeless. That is, as observed by the learned Magistrate, a circumstance that applies from time to time when persons are sent to gaol. That does not mean that it is an irrelevant matter nor that it can distract a court from imposing a proper sentence.

24. His homelessness will also substantially limit the access to his younger children for whom he considers that, not without justification, he provides some important stability in their lives.

25. While homelessness is not a matter that is unique for discharged prisoners, Mr Bedford is in a somewhat different position, for he is in the private rental market. It appears that detained prisoners can, in appropriate circumstances, retain public housing for periods of incarceration, especially where that is relevant to the occupant's mental health. See, for example, Eastman v Commissioner for Housing for the Australian Capital Territory [2006] ACTSC 52; (2006) 200 FLR 272 at 277; [7].

26. I note that Mr Bedford has been assessed as unsuitable for a community service work condition to a good behaviour order and to serve a period of imprisonment by periodic detention. That is said to be because of a "major problem with alcohol". I note that Mr Bedford has signed an undertaking to comply with the offender's periodic detention obligations under the Crimes (Sentence Administration) Act 2005 (ACT).

27. Under ss 78(5) and 89(5) of the Crimes (Sentencing) Act, I may order either of those sentencing dispositions despite such a recommendation of unsuitability as long as I record my reasons.

28. I do propose to order a period of periodic detention despite the recommendation. There are two reasons for this. The first is that Mr Bedford successfully completed a period of periodic detention in 2014 and that was before he commenced alcohol abuse rehabilitation with Directions ACT and counselling with Mr Nomchong. This rehabilitation appears to be succeeding. He has had a period of full-time custody which will have prevented him accessing alcohol and, possibly de-toxing, as well as having been for at least 6 months prior to that under rehabilitation with Directions ACT. I do not accept that his alcohol problem will render him unsuitable for periodic detention in those circumstances.

29. Accordingly, I propose to confirm the convictions for driving whilst disqualified on the three occasions and to sentence him to a period of full-time custody for the first offence, to periodic detention for the second and to a good behaviour order for the third.

30. While, at first blush, that may appear odd, since continued offending would ordinarily render subsequent offending more serious, requiring more severe sentencing, it seems to me that I need to look at the totality of the sentences to be imposed and then the proportionality of the sentence to the offending and to the culpability as well as to the relevant personal circumstances.

1. I confirm the convictions for the three offences of driving whilst disqualified from holding or obtaining a driver licence on 20 and 31 October 2014 and 28 January 2015.

2. For the offence committed on 20 October 2014, I sentence you to 4 months imprisonment to commence on 25 August 2015 to take into account pre-sentence custody.

3. I suspend that sentence after 2 months, namely on 24 October 2015, for 12 months.

4. I require you to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 12 months from 24 October 2015.

5. For the offence committed on 31 October 2014, I sentence you to 6 months imprisonment to commence on 25 October 2015, that is to be wholly cumulative on the earlier sentence.

6. I direct that that sentence be served by periodic detention, the first detention period to commence on 30 October 2015 and the last period on 22 April 2016 and that you report to the Symonston Periodic Detention Centre at 7.00 pm on 30 October 2015.

7. For the offence committed on 28 January 2015, I sentence you to 7 months imprisonment to commence on 25 April 2015.

8. I suspend that sentence from 25 April 2015 for 18 months from that date.

9. I require you to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 18 months from 25 April 2015 with a probation condition that you be under the supervision of the Director-General or her delegate for 18 months' or such lesser period as the person supervising you considers appropriate' and obey all reasonable directions of the person supervising you, especially as to treatment or counselling for alcohol addiction and abuse and for mental health issues.

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.