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1. Mr Jordan Wayne Beroukas (the offender) is before the Court on a breach of a good behaviour order made on 12 July 2021: R v Beroukas [2021] ACTSC 172 (Beroukas). For reasons that follow, I have decided to resentence the offender and again to impose a suspended sentence.

The primary sentence

2. The offender was sentenced for the offence of arson contrary to s 404(1) of the Criminal Code 2002 (ACT) (CAN 1240/2021). He was convicted and sentenced to 10 months’ imprisonment (reduced from 12 months) to commence on 10 February 2022 and end on 9 December 2022. The sentence of imprisonment was to be fully suspended on condition that he enter into a Good Behaviour Order for a period of 12 months.

3. Accordingly, the Good Behaviour Order commenced on 10 February 2022 and was to end on 9 January 2023 (GBO).

4. Subsequently when the order was engrossed, it appears from the documents in the tender bundle that there was a typographical error made. Although the date the order was made was 12 July 2021 and the date the GBO was to commence was 10 February 2022, those dates have been switched around on the typed order, with 10 February 2022 inserted as the “Date of Sentence” and 12 July 2021 inserted as the “Commencement Date of Good Behaviour Order”. Because the offender is to be resentenced, this may be passed over as the previous order will be overtaken.

The further offending

5. One of the conditions of the GBO was that the offender was ‘not to be in the driver’s seat of a motor vehicle’.

6. On 9 April 2024, the offender was convicted of a number of offences in the Magistrates Court. Among them, 5 offences constituted breaches of the GBO: Charge and date Description Maximum Sentence imposed of offence Penalty CC2022/8934 Making off $8000 fine and/or Good behaviour order (12 months) without Imprisonment for 25 August 2022 payment 6 months CC2022/8935 Minor theft $8000 fine and/or Good behaviour order (12 Imprisonment for months) 25 August 2022 6 months CC2022/8936 Driving whilst $160,000 fine 8 months’ imprisonment, and/or disqualified disqualified from 25 August 2022 Imprisonment for holding/obtaining licence 1 year for 24 months CC2022/12251 Minor theft $8000 fine and/or 2 months’ imprisonment, Imprisonment for disqualified from 23 November 2022 6 months holding/obtaining licence for 24 months CC2022/12252 Driving whilst $160,000 fine 6 months, 20 days’ and/or disqualified imprisonment, disqualified 23 November 2022 Imprisonment for from holding/obtaining 1 year licence for 24 months

Breach of the GBO: Should the Court impose the suspended sentence or resentence?

7. The first issue is what to do in respect of the breach of the good behaviour order, which upon conviction for the above offences must be cancelled: s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) (CSA Act).

Applicable legislation and principles

8. The power being exercised is contained in s 110, the relevant parts of which are as follows: 110 Cancellation of good behaviour order with suspended sentence order (1) This section applies if— (a) an offender’s good behaviour order was made under the Crimes (Sentencing) Act 2005, section 12 (3) (Suspended sentences) on the offender’s conviction for an offence; and (b) a court is satisfied the offender has breached any of the offender’s good behaviour obligations. (2) The court must cancel the good behaviour order and either— (a) impose the suspended sentence imposed for the offence; or (b) re-sentence the offender for the offence. ... (4) The Crimes (Sentencing) Act 2005 applies to the re-sentencing in the same way that it applies to the sentencing of an offender on conviction for the offence.

9. Various factors were outlined by Refshauge J in R v Curtis (No 2) [2016] ACTSC 34 at [18], In determining the appropriate response to the breach of a GBO in any given case including: ... the proportion of the term of the Good Behaviour Order that had been served without breach, any rehabilitation attained by the offender prior to the breach, the nature of the offence which breached the order, including whether it is similar to the offence for which the sentence of imprisonment, then suspended, was imposed, the relative seriousness of the offence so that the imposition of the suspended sentence would be disproportionate to the gravity of the breach offending; and, the prospects of the offender's rehabilitation.

10. Other factors brought to the Court’s attention by counsel for the prosecution that I accept may inform the exercise of the discretion are: (a) The actual facts of the matter for which the offender was first sentenced: see R v Beniamini (No 2) [2017] ACTSC 32 (Beniamini) at [52]-[53]; (b) Whether the breach indicates an intention to disregard the obligation to be of good behaviour; (c) Whether the offender has received any warnings with respect to breaches; (d) The level of understanding of the offender of his obligations under the terms of the order and the consequences of the breach: see The Queen v PM (No 2) [2015] ACTSC 358 at [20]-[22]; and (e) The nature of judicial and community resources previously devoted to the offender: see R v Bennett [2017] ACTSC 104 at [11].

11. There is no presumption in favour of imposing the original sentence that had been suspended: Guy v Anderson [2013] ACTSC 5 (Anderson) at [83]-[87].

12. However, a breach of the conditions of a good behaviour order or the like following the suspension of a sentence will generally result in the offender serving the sentence that was suspended with the principal consideration upon the conduct giving rise to the breach: see, for example, R v Buckman (1988) 47 SASR 303 at 304; Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2 (Cooke); 168 A Crim R 379 at 386; Taylor v Bowden [2009] ACTSC 13 at [36]; Saga v Reid [2010] ACTSC 59 at [99]–[101], all of which were cited by Refshauge J in Anderson at [87]. There is a degree of caution to be exercised in relying on cases from other jurisdictions, but the legislative policy behind the regime for suspended sentences may be taken to be consistent.

13. If the Court determines resentencing is the most appropriate course, the Court ought ordinarily to impose a more severe sentence, because the breach of good behaviour order shows that the trust reposed in the offender has been eroded: R v Ogilvie (No 2) [2016] ACTSC 265 at [30].

14. The rationale behind the imposition of the suspended sentence or the imposition of a more severe sentence upon resentence is to promote respect for the law and in turn further the maintenance of a just and safe society, being one of the objects of sentencing: s 6 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). Proper enforcement of the Court’s orders is necessary to ensure that the suspended sentence regime created by the Sentencing Act, does not fall into disrepute. In Cooke, Howie JA stated at [23]: …There is nothing more likely to bring suspended sentences into disrepute than the failure of courts to act where there has been a clear breach of the conditions of the bond by which the offender avoided being sent to prison. …if offenders do not treat the obligations imposed upon them by the bond seriously and if courts are not rigorous in revoking the bond upon breach in the usual case, both offenders and the public in general will treat them as being nothing more than a legal fiction designed to allow an offender to escape the punishment that he or she rightly deserved.

15. That being the case, there remains room for the initial objective of the suspended sentence, being “reformative as well as penal”, to be taken into account following cancellation of a good behaviour order under s 110: DPP v Myers (a pseudonym) (No 5) [2024] ACTSC 109 at [18], citing Tanner v Brown [2011] TASSC 59 at [94].

Considerations arising with respect to the current offender

16. The good behaviour order commenced on 10 February 2022. The offences causing the offender to be in breach occurred on 24 August and 23 November 2022. The offender had thus served roughly half the term of the GBO before re-offending.

17. The offender gave evidence that he had completed a 6-month rehabilitation program with Arcadia House prior to the offending that put him in breach of the GBO.

18. The nature of the offending that breached the GBO was properly accepted by the prosecution to be at the lower level of offending. The facts of the offences committed on 24 August 2022 were (in general terms) that the offender, while unlicensed, drove a car to a petrol station, filled up the car with petrol and took some items from the petrol station of small monetary value without paying for them.

19. He was arrested on 25 August 2022 and granted bail on 27 October 2022. Again, one of the conditions of bail was that he ‘not drive, or be in the driver’s seat of, a motor vehicle or in possession of keys or fob for any motor vehicle’.

20. The facts of the offences committed on 23 November 2022 were that he drove to Bunnings (again while his driver’s licence was disqualified) and took items from that store valued to a total of $1,136.44.

21. The offending that is the subject of the breaches is different from the original offence of arson. That was committed in December 2019, with the offender lighting a fire in a cell at the Alexander Maconochie Centre (AMC). The fire spread to other parts of the cell and smoke came out of the cell. The fire was extinguished relatively quickly by other inmates and damage to the extent of $2,300 was caused.

22. While it cannot be said that the breach of the GBO was an isolated event, the offending was confined to two separate occasions for which the offender was separately sentenced and has served additional time in custody as a result.

23. Other considerations mentioned above do not arise, such as the judicial and community resources devoted to the offender or previous warnings.

24. I was persuaded during the initial hearing that to impose the original sentence of 10 months’ imprisonment would be disproportionate in circumstances where the breaches were at the lower range of offending, as seen from the maximum penalties for the offences. The offender had also made proactive steps towards rehabilitation (albeit modest) and had undergone a reasonable period of time in the community without incident before the breaches. Imposing the original sentence had the potential to undo the steps the offender had taken in terms of improving his situation, reconnecting with his family, including his young daughter, and for his reintegration more generally into mainstream society.

25. Accordingly, the offender will be resentenced.

Resentence

26. All relevant sentencing factors are to be taken into account, as required by s 110(4) of the CSA Act (and see Beniamini at [52]) and one of those factors is the aggravating feature of offending while on conditional liberty. The prosecution helpfully provided the relevant material to enable the Court to engage in the re-sentencing task in the same way as if it was sentencing the offender on conviction for the offence.

27. Section 7 of the Sentencing Act sets out the sentencing objectives. The Court must achieve those objectives in accordance with the principle of individualised justice: MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 at [56].

28. The mandatory relevant considerations are set out in s 33 of the Sentencing Act. These have been considered below to the extent relevant in the circumstances of this offender.

Nature and circumstances of the offences (s 33(1)(a) of the Sentencing Act)

29. The evaluation of the nature and circumstances of the offence is “objective” in the sense that the Court does not consider matters personal to the offender and determines the seriousness “wholly by reference to the nature of the offending”: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27]. Subjective considerations, or matters personal to the offender, are separate considerations: McLeod v The Queen [2018] ACTCA 59 at [12].

30. The sentence which the court imposes must be proportional to the objective seriousness of the offence: R v Miller [2019] ACTCA 25; 279 A Crim R at [37], cited in R v Lindsay [2020] ACTCA 25 at [32].

31. Part of the Court’s assessment is to consider where the facts of the particular offence and offender lie in the “spectrum” from the least serious instances of the offence to the most serious, taking into account the nature of the crime and the circumstances of the criminal: R v Kilic [2016] HCA 48; 259 CLR 256 at [19].

32. The maximum penalty for an offence provides a yardstick against which to assess the objective seriousness of the offences before the Court: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31]. The maximum penalty for arson is 15 years’ imprisonment or a fine of $240,000 or both.

33. Various factors that may be significant in assessing the objective seriousness of a particular offence of arson include: (a) the extent of the damage caused, (b) the potential risk of injury to other people, (c) possible spread of the fire, (d) the offender's motive, and (e) the degree of planning and pre-meditation.

34. These considerations are drawn from cases relied upon by the Crown in relation to the original sentence, and they include: R v Elzakhem [2008] NSWCCA 31 at [45], Porter v The Queen [2008] NSWCCA 145 at [56], R v Baker [2000] NSWCCA 85 at [16], and R v Pitt [2001] NSWCCA 156 at [27].

35. In this jurisdiction, Refshauge J discussed the applicable principles in R v Wrigley [2015] ACTSC 114 (Wrigley) at [33]-[34]: 33. The Court of Appeal in this jurisdiction has said on a number of occasions that arson is an offence of great gravity and the need for deterrence must generally be given substantial weight. See R v Relph [2002] ACTCA 6 at [26]; R v Booth [2004] ACTCA 21 at [26]. 34. In R v Graham (Unreported, Australian Capital Territory Supreme Court, Refshauge J, SCC 17 of 2009, 23 September 2009), I reviewed the authorities concerning sentencing for arson. A number of the principles may be established from the authorities as follows: (a) arson may be committed for many reasons: R v Dowell (1982) 6 A Crim R 113 at 116; (b) the crime might also be committed in a wide variety of circumstances: Halden v R (1983) A Crim R 30 at 38-39; (c) the real gravity of the offence lies in the intent with which it is committed: Storey (1984) 6 Cr App Rep (S) 104; (d) the crime is often difficult to detect which generally requires a deterrent sentence: Dowell at 116; (e) nevertheless, a custodial penalty is not inevitable: R v Perrone (1989) 43 A Crim R 366 at 368; (f) the amount of damage is relevant (R v Hall (1979) 28 ALR 107 at 117) but is not necessarily a measure of the culpability of the offender (Storey at 107); in summary, the damage is relevant but not determinative: R v S (a child) (1992) 60 A Crim R 121 at 134; (g) there is no “tariff” for the offence: R v James (1981) 27 SASR 348 at 351; (h) as with other offences, a significantly relevant mental health issue may result in general deterrence playing a much less significant role: Parnis v The Queen [1993] FCA 624; (1993) 49 FCR 304 at 306-7, but does not mean, however, that imprisonment will not be appropriate even where there are mental health issues: R v Ray (Unreported, Supreme Court of Tasmania, Green CJ, 20 April 1983); (i) aggravating circumstances include that the offence is committed at night (Thomas (1988) 10 Cr App R (S) 386), use of an accelerant (Turill (1981) 3 Cr App R (S) 156), the commission of the offence for financial gain, such as insurance fraud (Dowell at 116), commission of the offence for the purpose of revenge (Campbell v The Queen (Unreported, Supreme Court of Tasmania, Neasey, Nettlefold, Bettingham-Moore JJ, CA 76/1984, 7 September 1984) at p 4), commission of the offence for the purpose of destruction of evidence of other crimes (Riley v The Queen, Unreported, NSW Court of Criminal Appeal, 3 April 1996) at p 3; Targett v The Queen (Unreported, Supreme Court of Tasmania Court of Criminal Appeal, Cox CJ, Underwood and Slicer JJ, CCA 38 of 1996, 5 November 1996) at p 1) and the potential risk of injury to life or serious harm to persons, including fire-fighters (R v Glover [2002] NSWCCA 376 at [53]- [57]); Porter v R [2008] NSWCCA 145 at [80]); (j) the degree of pre-meditation and the deliberate nature of the offence is important: R v Swindells (Unreported, Supreme Court of Tasmania, 1966).

36. I respectfully adopt his Honour's summary of the guiding principles. It should be noted that the absence of any particular factor does not reduce the objective seriousness but simply means the offence is not aggravated by that factor: DPP v Moala (No 3) [2023] ACTSC 306 per McCallum CJ at [24].

37. Here, no party argued a different assessment of the objective seriousness of the offence should be made. I adhere to what I said in Beroukas at [8]-[9]: 8. In the present case there was obviously the potential risk of injury to other people and possibility for the spread of the fire. However, although the offence occurred in the setting of a prison, which is an aggravating feature, no persons were hurt and it does not seem to have been a crime with the specific intent to cause any harm. Indeed, it is unclear why the fire was lit. The offender told the authors of the pre-sentence report that his actions were quite irresponsible and poor. He acknowledged some peer pressure but stated the pressure in no way excused his behaviour. In his oral evidence before me, the offender again acknowledged the irresponsibility of his actions, which he attributed to an immature desire to impress people who would have been better ignored. 9. Together with the facts set out …above [see [20] of the reasons on resentence], these matters warrant an assessment of the objective seriousness of the criminal conduct as being well below medium. Subjective Circumstances of the offending (s 33(1)(m) of the Sentencing Act)

38. The offender’s subjective circumstances were set out in Beroukas at [10]-[17]. It is unnecessary to repeat those matters. They include the offender’s remorse which was accepted, his participation in restorative justice, his plea of guilty (the discount for which will be approximately maintained on resentence), his extensive criminal history (to which may be added the further offending in 2022 and 2023) and other matters relating to his personal history. I have refreshed my memory for the purpose of the resentence by rereading the pre-sentence report that was before the Court on that occasion. I have also been provided with the pre-sentence report dated 7 February 2024, provided to the Magistrates Court in respect of a number of offences, which included those constituting the breach of the GBO here.

39. There are some updating circumstances in that the offender’s daughter is now three. The offender has been successful in re-establishing contact and he currently sees his daughter three times a week. He resides with his partner. During his time in custody, the offender undertook a number of sessions in a parenting course.

40. The offender reported that when he was in the community, he had some issues with gamma-hydroxybutyrate (GHB) and with heroin. Between 2021 to 2022, the offender was in residential rehabilitation at the Arcadia House as treatment for his illicit substance use. Between 6 June 2023 and 11 November 2023, the offender tested positive for opiates, amphetamines and methamphetamines. In 2023, he attended one week in a residential rehabilitation program before being exited. He currently receives monthly Buvidal injections at Directions Health Service. He is currently not under any other treatment for illicit substances.

41. Since being released from custody, the offender had sought to make contact with Arcadia, with a view to obtaining support for abstaining from drug addiction. As at the date of hearing, there was an intention to re-enter a form of the day program. However, it appears that did not materialise as no further information was provided when the offender was given the opportunity, through a Griffiths Remand order being made, as to which see R v Kelly [2021] ACTSC 143; 16 ACTLR 80 at [32]-[33].

42. In terms of updating the offender’s circumstances regarding his employment, this has been inconsistent. However, the offender reported in the witness box that in the past five months he has been employed in scaffolding and has established a landscaping business, which he planned to continue. The offender had also registered for an ABN for his earthmoving business. He was also involved in scrap metal work to earn additional money.

43. All things considered, as at the hearing on 15 July 2024, the offender had made a degree of progress in achieving a more pro-social lifestyle in respect of family connection and parenting, relationships, abstaining from addiction and employment. My view is that he has some way to go in order to cement a way of living that does not involve either drugs or crime, but with maturity and hard work this is an offender with the potential to lift himself up. Despite his lengthy history of involvement with the justice system since he was a juvenile, if he avails himself of the support network that is offered to him, particularly the supervisory support of Corrective Services going forward, his expressed hopes for his own future and that of his family may well be achieved.

Current sentencing practice (s 33(1)(za) of the Sentencing Act)

44. Comparative sentences ensure consistency in application of sentencing principle, but do not bind the sentencing court to achieve numerical equivalence with similar sentences imposed in the same jurisdiction: see Hili v The Queen [2010] HCA 45; 242 CLR 520 at [48]. The sentences that have been considered here for comparison were referred to in Beroukas at [19]. I have also taken into account a number of cases handed down since then, including R v Rahman [2021] ACTSC 257 (with the comparable cases including Beroukas discussed at [38]-[40]), R v Yeaman (No 2) [2021] ACTSC 287, R v Winters [2022] ACTSC 42 and most recently, DPP v Jesse Draper (a pseudonym) [2023] ACTSC 109, where the comparative sentences for arsons committed in custody were set out in Annexure A to that judgment.

Totality

45. Totality considerations no longer directly arise here as the offender has now been in the community since June 2024.

Disposition

46. The nature of the offence requires significant weight to be given to general and specific deterrence (see the extract from Wrigley at [35] above). It will be apparent from the above reasons and comparable sentencing practice that nothing other than a sentence of imprisonment is appropriate to reflect the gravity of arson while in custody. However, in the circumstances of this case, it does not follow that such a sentence should be one of full-time custody.

47. Further, to properly give effect to the suspended sentence regime and the fact of the breaches, it is appropriate that the sentence be increased (because the breach of the GBO is an additional circumstance of aggravation). Such an increase in sentence will be modest having regard to the nature of the breaches and the fact that the offender has now served a further period of imprisonment in respect of the breach offending, which may be taken into account: Mill v The Queen (1988) 166 CLR 59 at 62-63.

48. Ultimately, the outcome I prefer is one that will best protect the community in the longer term. I am not persuaded that further months in a custodial setting after the offender has recently served time in custody for those additional sentences will necessarily serve either that objective or those of general and specific deterrence to which I have earlier referred.

49. I consider that a cautious approach should be taken to the offender’s prospects in the community without a high degree of supervision to provide a regime of stability, at least in the short term. A suspended sentence which promotes rehabilitation for a youthful offender, should not come at the cost of protection of the community. Despite his best intentions, it seems that the offender has not yet learned how to survive in the community without offending. He was given the opportunity to engage with support (in the form of drug rehabilitation) services independently and then to provide information as to what engagement had occurred. The purpose of that opportunity was intended to gather the information necessary to craft a sentence that promoted rehabilitation and reintegration. I remain concerned that the offender has limited insight into the connection between his ongoing drug addiction, marked by periods of abstinence and relapses, and his offending. Accordingly, in the absence of the information necessary to impose any specific conditions, a suspended sentence with general supervision requirements for 12 months is appropriate.

Orders

50. The orders of the Court are: (1) Pursuant to s 110(2) of the Crimes (Sentence Administration) Act 2005 (ACT) (CSA Act), the good behaviour order in respect of Jordan Wayne Beroukas is cancelled and the offender is resentenced for the offence of arson, contrary to s 404(1) of the Criminal Code 2002 (ACT) (CAN 1240/2021) to a term of imprisonment of 11 months and 23 days (reduced from 14 months) to commence on 24 September 2024 and conclude on 15 September 2025. (2) Pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), the sentence is to be wholly suspended from 24 September 2024. (3) Pursuant to s 13 of the Sentencing Act, a good behaviour order is made upon the offender signing or giving an undertaking to comply with the offender’s good behaviour obligations under the CSA Act for a period of 12 months, being 24 September 2024 to 23 September 2025. (4) As part of the good behaviour order, the following conditions are imposed: (a) The core conditions pursuant to s 86 of the CSA Act; (b) A probation condition whereby the offender must comply with all reasonable requirements of the relevant Director-General or their delegate and obey all reasonable directions for such period as the person supervising deems appropriate; (c) All reasonable directions of the person supervising includes any direction as to alcohol and drug testing, attendance at drug rehabilitation programs and any other appropriate counselling or treatment, and not to return a positive result upon any drug and alcohol testing.

I certify that the preceding fifty [50] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam Associate: Date: