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[2024] ACTSC 367
Supreme Court of the ACT
2024-11-15
Mossop J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: DPP v Job
Citation: [2024] ACTSC 367
Hearing Date: 15 November 2024
Decision Date: 15 November 2024
Before: Mossop J
Decision: See [38]
Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Breach of good behaviour obligations – where breach related to longstanding struggle with drug use, obligations relating to drug use “hopeful” with hindsight – offender polite and co-operative with Corrections and undertook familial caring responsibilities – re-sentencing offender with good behaviour obligations the most appropriate course where the court had a limited range of appropriate orders to make in the circumstances
Legislation Cited: Crimes (Sentence Administration) Act 2005 (ACT), ss 85, 110 Corrections Management Act 2007 (ACT), s 132
Parties: Director of Public Prosecutions Darren David Job (Offender)
Representation: Counsel D Armstrong (DPP) D Bloomfield (Offender)
Solicitors Director of Public Prosecutions Legal Aid ACT (Offender)
File Numbers: SCC 54 of 2023 SCC 55 of 2023 MOSSOP J:
Introduction
Agreed facts
Circumstances of initial offending
(a) attempted theft (CAN 6436/2022);
(b) possess article with intent to use it in connection with theft (CAN 1521/2023);
(c) trespass on premises (CAN 12352/2022);
(d) driving while disqualified as a repeat offender (CAN 1514/2023);
(e) driving with a drug in oral fluid (CAN 1515/2023);
(f) driving an unregistered motor vehicle (CAN 1516/2023);
(g) using an uninsured motor vehicle (CAN 1517/2023);
(h) driving a vehicle with registration plates not issued to it (CAN 1518/2023).
[Correction: In paragraph 3, the dates 20 December 2022 and 2 March 2023 should be 2 March 2023 and 20 December 2022 respectively.]
The offences occurred on two different dates. On 3 July 2022, the theft and trespass offences occurred, the balance of the offences occurred on 9 February 2023. The offending was described by Refshauge AJ in his reasons and can be summarised as follows.
On 3 July 2022, Mr Job possessed an electric drill and entered a building site in Griffith by damaging a chain at the entrance. In doing so, he was also entering those premises without authority. A security officer witnessed his entrance on CCTV footage, and Mr Job was described as wearing a fluorescent orange jumper, tan pants and yellow shoes. He was arrested at 3:30am and cautioned by police. Upon his arrest, police and the security officer located a set of bolt cutters with the electric drill, as well as plastic coated copper wire close to where the offender was located. On the site, it appeared that two large storage toolboxes had their padlocks broken with bolt cutters. Police offered Mr Job a record of interview, but he appeared to be under the influence of an intoxicating substance, and they therefore arranged for such an interview to be conducted on a different date.
On 9 February 2023, police stopped a black Chrysler Voyager bearing an ACT numberplate on Cotter Road in Curtin. The car was stopped because police had observed it swerving across lanes, and therefore suspected that its driver was under the influence of alcohol or illicit drugs. Police checked the numberplates and identified that the numberplates of the Chrysler should have been attached to a different car. Upon stopping the car, Mr Job was identified as the driver. He did not have any identification, and he told police that his licence was disqualified, which the police later verified to be correct. He underwent a drug and alcohol test, and returned negative results for alcohol and positive results for a prescribed drug. Police searched his bag and located grinder cutting discs and a crowbar, and a number of other tools. Police believed that he was carrying those tools to assist in committing thefts that evening. An Oral Fluid Analysis Instrument analysed his oral fluid, and it returned a positive indication to a prescribed drug.
Sentence imposed by Refshauge AJ
(a) On the charge of attempted theft, he was sentenced to 14 months’ imprisonment, commencing on 20 June 2023 and ending on 19 August 2024.
(b) On the charge of possessing an article with intent to use it in the course of a theft, he was sentenced to six months’ imprisonment commencing on 20 July 2024 and ending on 19 January 2025.
(c) On the charge of driving while disqualified as a repeat offender, he was sentenced to two months and one week’s imprisonment, commencing on 20 January 2025 and ending on 26 March 2025, with a 24-month driver licence disqualification starting on 20 February 2024.
(d) On the charge of driving with a drug in his oral fluid, he was sentenced to one month and two weeks’ imprisonment commencing on 27 March 2025 and ending on 10 May 2025, with a 12-month driver licence disqualification starting on 20 August 2024.
(a) That he accept supervision from the Commissioner of ACT Corrective Services.
(b) That he “continue to engage with the Canberra Recovery Hub for as long as the person supervising [him] approves or such other drug or alcohol treatment as approved by the person supervising [him].”
(c) That he not return a positive result for drug and alcohol testing.
Breach of good behaviour obligations post-sentence
As I have indicated, the sentences pronounced by Refshauge AJ provided for a period of supervision.
The prosecution tender bundle before me contains an affidavit of Andrew Cuthel of 12 August 2024, which was admitted without objections.
The affidavit asserts that Mr Job is in breach of two of the conditions of his good behaviour order, namely:
(a) Condition (1): a general supervision condition.
(b) Condition (3): the condition relating to not having a positive result for drug and alcohol testing,
The affidavit describes Mr Job’s engagement with supervision from 20 February 2024 to early June 2024 as “borderline satisfactory”. That is because, although attending supervision occasionally, he failed to attend supervision on three occasions and did not advise of his inability to attend appointments. In this period, he was assessed by the Canberra Recovery Hub and deemed unsuitable for their programs, and reported that he was referred to Directions ACT for treatment.
On 6 June 2024, Mr Job attended supervision as directed. He reported that he was unemployed and using methamphetamines daily. He reported engagement with “Chat to Pat” medical service and that he was seeking a referral to address trauma and drug use. He was directed to attend supervision again on 20 June 2024. He failed to attend this supervision and failed to advise of his inability to attend.
On 4 July 2024, Mr Job responded to a text message sent by ACT Corrective Services and attended the office for supervision. He reported “ongoing daily use of methamphetamine” and stated that he was not at a stage of readiness to adequately address his use. He agreed to being referred to be assessed for the “Equips Addiction” program facilitated by ACT Corrective Services.
On 18 July 2024, Mr Job attended for supervision, although he appeared under the influence of drugs, and admitted that he had used methamphetamines prior to the appointment. He was provided with a direction letter to attend the Equips program commencing on 23 July 2024, and was advised that he could not attend if under the influence of drugs.
He failed to attend the first session of that program on 23 July 2024 and did not advise why he could not do so. He advised the following day that he thought that the program did not commence until 25 July 2024, and attended the session on that day, which was Equips’ second session.
On 30 July 2024, Mr Job attended the third session of the Equips program. Facilitators advised that he appeared under the influence of drugs. He left the program early due to his inability to engage effectively in the program. On that day, Mr Job advised the facilitator that he used methamphetamine daily.
On 1 August 2024, he attended for supervision as directed for the fourth Equips session. He was directed to undergo urinalysis testing on this date, and declared recent use of methamphetamine on the documentation. The preliminary results returned a non-negative result for amphetamine and methamphetamine. He left after the drug test and failed to attend the fourth Equips session, stating that he needed to leave to renew his methadone script. Mr Job was advised before leaving that a breach would be submitted to the court due to his returning of a positive test for a drug, but was encouraged to continue engaging with supervision and attendance at Equips.
On 6 August 2024, Mr Job attended the fifth session of Equips, although he failed to return to the program after the session break.
On 8 August 2024, the result from the urinalysis drug test conducted on 1 August was finalised by the independent laboratory with both amphetamine and methamphetamine present in the sample. The level of methamphetamine was recorded as “significantly high”. Consequent upon these results, program facilitators made the decision to exit Mr Job from the Equips program due to his “pre-contemplative stage of readiness” to address his drug use, and he was contacted via telephone to advise of this decision. ACT Corrective Services offered to refer him to one-on-one counselling conducted in the Corrections office, which he agreed to.
The deponent of the affidavit commends Mr Job for being “open and honest with this Service about his significant and problematic use of methamphetamine” but is concerned that “he is not at a stage of readiness to sufficiently address his drug use” and gives the example of Mr Job declining to explore opportunities for residential rehabilitation. The deponent also commends Mr Job for having positive attendance at supervision since June 2024 in a manner that is punctual, and for being polite and co-operative in his dealings with Corrections staff. Nonetheless, due to his extensive use of methamphetamines, the deponent regards an abstinence-based order as not suitable because he needs a “significant level of treatment”. The deponent on behalf of ACT Corrective Services therefore requests that the court revoke the good behaviour order and re-sentence, on account of Mr Job being unable to comply with an abstinence-based order at this time.
The material before the court includes the material that was before Refshauge AJ when he imposed the sentence that he did. Further oral evidence was called from the offender’s mother. She indicated that the offender has been living with her. She is suffering from emphysema and is at the point where the next stage in her treatment will involve her using oxygen. She has a limited capacity to walk any distance and relies upon the offender to assist her with daily activities, shopping and getting to and from medical appointments. She described her opposition to the offender’s drug use but that, although he continues to use, his level of use and behaviour is very different from the position that he was in two years ago.
Counsel for the offender initially submitted that the offender should be resentenced without any condition that required abstinence from using illicit drugs. Later in the proceedings, his instructions changed and the offender indicated that he was willing to accept such a condition.
Counsel for the prosecution recognised the lack of utility in a substantial additional period of imprisonment but emphasised the need for there to be, and to be seen to be, consequences flowing from the breach of the terms of the good behaviour order in circumstances where that was a product of lack of rehabilitative effort. He submitted that the offender would not be able to comply with any community-based order designed to assist his rehabilitation and that would lead the court to impose the original suspended sentence.
Decision
The sentence imposed by Refshauge AJ was one which provided an opportunity for rehabilitation. It provided an incentive for such rehabilitation insofar as engaging with the process of supervision and the rehabilitation programs that he was directed to would avoid the imposition of the substantial custodial penalty. Having regard to the material before the court as to the offender’s significant history of non-compliance in relation to bail and previous parole orders, the suspended sentence was one which was a hopeful one. That hope has not been realised. The offender has been unable to organise his, admittedly difficult, life in a manner which allows him to comply with his obligations under the suspended sentence order.
The options available under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) are to impose the suspended sentence or to resentence the offender.
It is an important aspect of suspended sentences that they have, and be seen to have, significant consequences if the opportunity that they provide is not taken up, either as a result of reoffending or non-compliance with the conditions. That is because they are a useful tool only insofar as they motivate offenders to do what they are required to do.
None of the options available to the court are particularly satisfactory.
Prior to the hearing, I declined to order an assessment for an intensive correction order. No application for such an order was renewed today. The material before the court on the last occasion indicated unsuitability for such an order for reasons including the poor history of compliance with community-based orders. I considered that it was very unlikely that the offender would be assessed as suitable for such an order even though, if he could comply, it would be of utility for his rehabilitation.
The second alternative canvassed was the possibility that he surrender himself and serve the one month that he is required to serve in New South Wales as a result of cancellation of his parole for earlier offending. If he did that, then the existence of that sentence obligation would no longer be a barrier to the imposition of a drug and alcohol treatment order and I would have referred him for assessment in the Drug and Alcohol Sentencing List. In the absence of any application for extradition by New South Wales police, that option was dependent upon the offender’s willingness to surrender himself in New South Wales. He was not willing to do that and, hence, that option was removed.
The third and most obvious alternative was to impose the sentences pronounced by Refshauge AJ. That would involve the need to set a non-parole period. The non-parole period would extend beyond the period of backdating, requiring the offender to serve additional time in custody. Such a course would be unlikely to significantly promote any rehabilitative purpose and would have adverse consequences for the offender’s mother.
A fourth alternative would be to resentence the offender. That would encompass the range of possible sentence structures that would take into account the time served in custody, and some appropriate balance between the various purposes of sentencing.
The offender’s history of compliance with community-based orders is poor. He is going to have to serve his New South Wales sentence at some stage. Sending him to jail will not be useful if rehabilitation is a goal. However, it may be necessary to vindicate other purposes of sentencing if rehabilitation can no longer be hoped for.
The course that I will adopt is to resentence the offender. For those purposes, I adopt the findings of Refshauge AJ in the reasons that he gave earlier as they, in my view, appropriately and carefully summarise the evidence that was before him and is now before me.
I consider that it is significant that there has been no further property or driving offending of the sort that might be seen to flow from his drug use. The breaches are the failure to comply with the requirements of supervision. With the benefit of hindsight, those requirements can be seen to be overly optimistic about the offender’s willingness or capacity to do what it takes to properly participate in a drug rehabilitation program. So far as the evidence discloses, although the offender’s ongoing illicit drug use appears to have been unmanageable in the period of June and July this year, it has reduced to a level which does not necessarily involve further property offending in order to support his habit, although I emphasise that the evidence on this was far from adequate.
I do not think that this is the point at which the hope of rehabilitation without further detention should be abandoned. I consider the appropriate course is effectively to reimpose the sentences imposed by Refshauge AJ but with some minor amendments that will make the goals of rehabilitation less ambitious and give more flexibility to ACT Corrective Services as to what rehabilitative steps are required to be taken. I consider it appropriate to maintain a drug testing condition. Having regard to past history, such a disposition may be seen as the triumph of hope over experience. However, given the undesirable consequences of a return to custody both for the offender and his mother, I consider that in light of the nature of the breaches of the good behaviour order that he should be allowed a further opportunity to comply with them. If he is unable to do so, then I would anticipate that the proper disposition of the matter would require the goals of rehabilitation to be subordinated to other purposes of sentencing. That will inevitably involve a further period in custody with all the adverse consequences that that involves.
Orders
(1) The good behaviour order entered into as a result of the orders of the Court on 20 February 2024 is cancelled and the offender is resentenced as follows:
(a) On the charge of attempted theft (CAN 6436/2022) the offender is convicted and sentenced to 14 months’ imprisonment commencing on 20 June 2023 and ending on 19 August 2024.
(b) On the charge of possessing an article with intent to use in the course of theft (CAN 1521/2023) the offender is convicted and sentenced to imprisonment for six months commencing on 20 July 2024 and ending on 19 January 2025.
(c) On the charge of driving while disqualified as a repeat offender (CAN 1514/2023) the offender is convicted and sentenced to imprisonment for two months and seven days commencing on 20 January 2025 and ending on 26 March 2025, with 24 months driver licence disqualification starting on 20 February 2024.
(d) On the charge of driving with a drug in his oral fluid (CAN 1515/2023) the offender is convicted and sentenced to imprisonment for one month and 14 days commencing on 27 March 2025 and ending on 10 May 2025 with 12 months driver licence disqualification starting on 20 August 2024.
(e) The sentence of 22 months and 21 days’ imprisonment commencing on 20 June 2023 and ending on 10 May 2025 is wholly suspended upon the offender entering into an undertaking to comply with his good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 from 15 November 2024 until 19 February 2026 with the following additional conditions:
(i) That he be on probation subject to the supervision of the Director-General responsible for ACT Corrective Services and obey all reasonable directions of the person supervising him.
(ii) That any sample provided after 29 November 2024 pursuant to a direction of the person supervising him must not test positive for a drug within the meaning of s 132 of the Corrections Management Act 2007. Schedule: Transcript of reasons of Refshauge AJ dated 20 February 2024
While many decisions of the courts, including this court, have expressed that the ultimate purpose of the criminal law is the protection of the community, as noted, for example, in The Director of Public Prosecutions v Djerke, that can be achieved in a variety of ways such as punishment, denunciation and deterrence. It can, however, be achieved by rehabilitation, which has been said by high authority to be in the public interest; see R v Po'oi (No 4).
Now appearing for sentence is Darren David Job. He has pleaded guilty to eight offences. They are attempted theft, possess articles with intent to use them in connection with a theft - perhaps I could just interrupt myself there.
Mr Armstrong, in your submissions and in the - and I should have started off in this - in the tender bundle, the reference to this offence of - I think it's section 315 of the Criminal Code - was to possession of articles with intent to use them for a burglary.
MR ARMSTRONG: Yes.
HIS HONOUR: But in fact the Bench sheet in the Magistrates Court expressed it for a theft.
MR ARMSTRONG: Yes, your Honour is quite right. Three-hundred-and-fifteen is going equipped for theft.
HIS HONOUR: It goes for theft or related offences and that includes robbery and so on.
MR ARMSTRONG: Yes.
HIS HONOUR: But what Mr Job was charged with was theft.
MR ARMSTRONG: Yes, you're right, your Honour.
HIS HONOUR: And there hasn’t been an application to amend.
MR ARMSTRONG: No.
HIS HONOUR: Are you content that I now refer to it as a theft?
MR ARMSTRONG: Yes, absolutely, your Honour.
HIS HONOUR: All right, and that was not intended to be disrespectful to you.
MR ARMSTRONG: It's okay.
HIS HONOUR: But I think that's what I'm bound to do
MR ARMSTRONG: Certainly.
HIS HONOUR: unless there's an amendment.
MR ARMSTRONG: No, no amendment to be made.
HIS HONOUR: And it's probably a bit late for that now.
MR ARMSTRONG: Your Honour is quite right. It should be theft.
HIS HONOUR: All right. I apologise. All right. Trespass on premises, driving whilst disqualified, driving with a drug in his oral fluid, driving an unregistered motor vehicle, using an uninsured motor vehicle, driving a vehicle with registration plates not issued to it.
In the sentencing hearing, the prosecution, ably represented by Mr D Armstrong, tendered without objection the helpful prosecution tender bundle. Behind the prescribed cover sheet included the committal and transfer documents, two agreed statements of facts, Mr Job's criminal history and a court duty report dated 1 February 2023.
As Mr Job had originally sought that any sentence of imprisonment be served by a drug and alcohol treatment order, 'treatment order', under section 12A of the Crimes (Sentence Administration) Act 2005 (ACT), 'Sentencing Act', drug and alcohol treatment suitability assessments under section 46J of the Sentencing Act were directed to be prepared and they were included in the tender bundle. These were a drug and alcohol sentencing list suitability assessment, report of Alcohol and Drug Services dated 26 May 2023, and an updated drug and alcohol sentencing list suitability assessment report dated 2 June 2023, with a case plan and a drug and alcohol treatment assessment report of ACT Corrective Services dated 2 June 2023.
Also tendered without objection were notes of an authorised fluid analysis operator dated 9 February 2023, an email chain between the Director of Public Prosecutions and New South Wales parole authorities, an intensive correction order report dated 2 January 2023, and various bail reports.
Ms E Wallis, who very professionally represented Mr Job, tendered without objection two letters from Mr Job's mother, a letter from Mr Job, an email chain between Ms Wallis and Mr Job's prison case manager dated 1 June 2023, and an email chain between her and ACT Corrective Services dated 8 June 2023, a photograph of a white toolbox, a letter from Justice Housing, and various medical certificates relating to alleged breaches of bail.
Both Mr Armstrong and Ms Wallis provided helpful written submissions and supplemented them with oral submissions that were of value to the court, as was there willingness to engage in respectful debate with the court and answer its questions. From this material, the court was able to make the following findings.
The Facts
The most important part of the sentencing process is to make findings of facts that ground the offences. This is made easier where the parties can agree on the facts, but the court is still required to make the findings on which it will impose the sentence. There were two occasions on which offences were committed in this case, on 3 July 2022 and 9 February 2023.
On 3 July 2022, Mr Job, holding an electric drill in his hand, entered a building site in Griffith, ACT, by damaging a chain at the entrance. He had no authority to be on the premises. He was seen through a closed-circuit television CCTV system monitoring the site and a security officer was dispatched to the site. The officer saw Mr Job inside the building being erected on the site and spoke to him. These were the facts on which the trespass charge was based.
Shortly after, police arrive. The police identified Mr Job by comparing him with lawfully obtained images and spoke to him. Other police officers and security officers located the electric drill, a set of bolt cutters and plastic-coated copper wire. They also located two toolboxes with broken padlocks on their side which appeared to be cut with bolt cutters. Mr Job had tried to steal one of the toolboxes of an unknown value. This founded the charge of attempted theft.
Mr Job was arrested and taken to the ACT Regional Watch House. He declined to participate in a recorded interview. He appeared in the ACT Magistrates Court the next day. Later, on 9 February 2023 at 1.26 am, Mr Job drove a black Chrysler Voyager motor vehicle on Cotter Road, Curtin, ACT. He was swerving across the road lanes and police in the vicinity and who noticed the manner of driving suspected that he was under the influence of alcohol or drugs. They checked the registration plates and found that they were issued to a different motor vehicle, a Nissan Navara. Accordingly, they stopped the motor vehicle and spoke to Mr Job.
Mr Job did not have identification on him and told police that he had been disqualified from holding or obtaining a driver licence for some months. In fact his criminal record shows that on 19 August 2022, he had been disqualified from holding or obtaining a driver licence for 15 months from 19 September 2022 for driving whilst disqualified. This justified the charge of driving a motor vehicle with registration plates affixed that were not issued for the vehicle and driving whilst disqualified as a repeat offender.
Mr Job was requested to undergo a screening test which was negative for alcohol but positive for drugs. He was placed in custody and taken to the City police station. Mr Job had given police the keys to the car he had been driving so that they could secure it. They noticed in it, however, a bag containing a grinder, cutting discs and a crowbar. Tools near the bag included a large set of bolt cutters, multiple sets of pliers, an electric angle grinder and a drill. Police formed the view that Mr Job was going to use them for thefts that evening. Accordingly, he was charged with possessing the tools with intent to use them in the course of a theft.
At the police station, Mr Job was required to provide a sample of his oral fluid for the purpose of drug testing. He did so and that test proved positive for drugs. This led to Mr Job being charged for the offence of driving with a drug in his oral fluid as a repeat offender.
Police investigation showed that the Chrysler motor vehicle had not been registered or insured since 11 December 2022. Accordingly, he was charged with driving a motor vehicle that was unregistered and using a motor vehicle that was uninsured.
The Proceedings
As noted above, Mr Job was arrested on 3 July 2022. He was refused bail by police and appeared in the ACT Magistrates Court the next day when he was remanded in custody. He had been charged with the offence of attempted theft. The proceedings were adjourned until 18 July 2022, when Mr Job entered a plea of not guilty and remanded in custody. At the next adjournment on 12 August 2022, he was granted bail. A prosecution brief of evidence was later prepared for a hearing set for 4 April 2023.
After five further adjournments on 20 December 2022, he was also charged with a trespass offence and entered pleas of guilty to the two offences and the hearing date was vacated. The proceedings were adjourned for sentence on 8 February 2023. His bail was continued.
On 8 February 2023, the sentence was further adjourned to 5 April 2023 and bail was continued. The next day, on 9 February 2023, however he was charged with possession of articles, namely tools, with which to use in relation to a theft, driving whilst disqualified as a repeat offender, driving with a drug in his oral fluid, driving an unregistered motor vehicle, using an uninsured motor vehicle and driving a motor vehicle with registration plates not issued for it. Mr Job was refused bail and remanded in custody.
On the adjourned date of 2 March 2023, he was committed for sentence to this court and the summary offences were transferred to be dealt with under Part 4 of the Supreme Court Act 1933 (ACT). He remained in custody.
He appeared in this court on 14 April 2023 when suitability assessments were directed to be prepared and the proceedings adjourned to 9 June 2023. On that day, issues arose with respect to the parole order from New South Wales to which Mr Job was subject.
On 30 June 2023, it was shown that on 19 April 2023 a parole order in New South Wales had been revoked and that he was required to serve the balance of his sentence of imprisonment by a further one month. This would be a sentencing order under section 12A of the Sentencing Act which would render him ineligible for a treatment order to be made. Mr Job, however, was granted bail and sentence was adjourned.
On 14 July 2023, he was subject to a breach of bail as he did not appear in court. Medical certificates were subsequently provided to show a reasonable excuse and the prosecution application for revocation of the bail was withdrawn.
In August 2023, Mr Job contracted the COVID-19 virus and could not appear in court, but on 18 August 2023, to which the date the proceedings had been adjourned, he did not appear. A fresh date of 25 August 2023 was set when Mr Job did not appear on that date and a warrant was issued for his arrest. He was arrested on 8 September 2023 and he was remanded in custody. Later, a sentence date of 7 November 2023 was set. On 3 November 2023, however, that date was vacated and the charges listed for sentence on 8 January 2024, and an intensive correction order assessment report was ordered.
Mr Job applied for bail on 7 November 2023 and it was granted on strict conditions. He was, however, arrested on 5 December 2023 for an alleged breach of bail but revocation of bail was not pressed by the prosecution and bail continued.
He returned a positive result for drugs on urinalysis, however, and the matter was mentioned on 18 December 2023. It was noted that despite the fact that no confirmatory pathology for the result had been received, Mr Job readily admitted the use of drugs, explaining that the family was experiencing difficult times with the death of a family member. He had commenced at the Canberra Recovery Hub, a drug rehabilitation agency of the Salvation Army, as to which see The Director of Public Prosecutions v Wran. Further conditions were added to his bail.
The hearing of sentence began on 8 January 2024. On 19 January 2024, he again admitted to the use of drugs which he attributed to further family issues. He had also suffered a cycle accident for which he was hospitalised. After further submissions on 2 February 2024, sentence was set for today.
In this period, Mr Job has been in custody for 245 days. That period must be taken into account on sentence.
The Offences
Having set out the facts which founded the charges preferred against Mr Job and to which he has pleaded guilty, the task of sentencing requires the court to synthesise the various factors to be considered in order to come to a just and adequate sentence; Wong v R, Singh v R. This is assisted by the legislature which has, in section 33 of the Sentencing Act, set out factors that must be considered. In addition, human nature and activity being so diverse, it is accepted that the court sentencing an offender is not limited in the matters it may consider; section 33(3) of the Sentencing Act. Those other matters must, of course, be relevant.
At common law, there were two fundamental issues to be considered by a court sentencing an offender: the objective seriousness of the offence and the subjective circumstances of the offender; R v Kilic.
The first matter to be considered is the objective seriousness, which the legislature terms the nature and circumstances of the offence; section 33(1)(a) of the Sentencing Act. There are principally three matters relevant to this factor. The first is the actual basis from which the offences rise and this has already been found. Next, the court must have regard to the maximum penalty for the offences. This is, of course, the legislative prescription concerning the seriousness of the offence and is 'of great relevance'; Markarian v R.
It invites comparison between the worst possible category of case and the case before the court for sentence and, taken and balanced with all the other relevant factors, it provides a yardstick. The court must therefore identify the relevant factors that will help to assist that comparison with the worst possible category of case, namely those factors that aggravate or mitigate the seriousness of the offences already committed; R v Tumohua. This is helped by having regard to what matters courts have previously found to be such relevant factors of aggravation and mitigation as to be taken into account.
Theft is a crime under section 308 of the Criminal Code 2002 (ACT), which sets a maximum penalty of 10 years' imprisonment or a fine of $160,000 or both. It is thus a serious offence but by no means the most serious in the criminal calendar. The most important factor relating to its seriousness is the value of the property stolen; R v Ware.
The offence, of course, covers a wide variety of factual circumstances and property from small items of little value to the taking of very valuable property that could be worth millions of dollars. In this case, the property is a white toolbox, a photograph of which was tendered by Ms Wallis. Unfortunately, no value was given to it.
The box itself may not have been of much value. It was regrettably not stated in the agreed statement of facts what, if anything, was in the box. The photograph did show that it did have items in it to about half full, with the handle of an item probing out of the hole in its side. It can be accepted therefore that there were a reasonable number of tools and building items in the box. So that value, both in monetary terms and in the convenience, their loss on a building site would cause was likely to be reasonably substantial.
The fact that Mr Job took a drill with him made it reasonably clear that there was some premeditation to the offence. It was thus a somewhat more serious offence. It was, however, an attempted theft and not a completed theft, that is, Mr Job did not actually steal the toolbox. Under section 44 of the Criminal Code, a person convicted of attempting to commit a crime is on conviction punishable as if the crime attempted had been committed. Thus, Mr Job is liable to the maximum penalty for the theft offence.
In R v BI (No 4) the principles to be applied in sentencing for an attempted offence were set out as follows:
(1) The 'conventional view' is that an attempt to commit an offence will likely attract a lesser sentence than would the offence had it been completed. (2) That may particularly apply where the attempt is inept, the attempt could not physically succeed, or is doomed to fail: Some authorities, however, suggest that this may make no difference.
(3) The 'conventional view' will not invariably apply and, especially in the case of drug offences, it is often regarded that the attempt is as serious as the completed offence.
(4) Nevertheless, the attempt to commit a serious offence remains a serious offence.
(5) There is no clear relationship between the seriousness of the intended consequences that would follow from the substantive offence if completed and the real prospects of achieving them though the relationship must be considered.
(6) Thus, where the attempt is a grave one, carried out with sophistication where it is likely to succeed in effecting the substantive offence, the attempt may be punished as severely as a completed offence.
(7) It is relevant that, if the attempt is not completed, the harm caused by the substantive offence, a very relevant factor on sentence, will not have been caused.
(8) Other factors relevant to reducing the seriousness of the attempt to commit an offence may include where the conduct which constitutes the attempt only shows a change of the offender’s mind.
(9) It is, however, not mitigating where the charge of attempting to commit the offence rather than committing it is because the substantive offence has not been completed through 'good fortune' or through the intervention of law enforcement agencies.
(10) In the end, as most of the authorities point out, the seriousness will, as in the case of most offences, depend on all the circumstances of the case.
[Citations omitted.]
Here, the attempt was perhaps somewhat inept, to enter premises which were the subject of CCT surveillance and where security was able to get to the property before he could commit the crime. Nevertheless, he would almost certainly have completed the theft if not disturbed and arrested. The only hesitation is that the box looked to be of metal and half full of items, suggesting that it would be very heavy and difficult to remove. As noted, the harm caused has not been suffered and this will mitigate the penalty that the offence would otherwise have attracted.
Possessing an article with intent to be used in the cause of a theft is an offence contrary to section 315 of the Criminal Code which prescribes a maximum penalty of three years' imprisonment or a fine of $48,000 or both. This is, of course, a dishonesty offence. Such offences cause serious problems, as described in R v Hayes. Unfortunately, none of the sentencing remarks readily available in the territory for this offence identify any particular factors that are relevant.
The items found were grinder cutting discs, a crowbar, work gloves, a large set of bolt cutters, multiple sets of pliers, an electric angle grinder and a drill. These are rather a sophisticated set of items for a possible future theft. This would seem to render the offence somewhat more serious. They were, however, in plain sight, suggesting while there was some premeditation in the offence that it was not a particularly sophisticated version. Trespass is an offence proscribed by section 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth). It prescribes a maximum penalty of a fine of $2,222. It is thus a very much less serious offence than the others already mentioned. In this case, it's closely associated with the attempted theft for this is the means by which the theft would be likely to be achieved. It will thus be appropriate to show a degree of concurrency in the sentence.
Some of the relevant factors are set out in R v Winters. It is a crime directed not to vindication of civil rights but rather to make conduct relevant to other criminal behaviour punishable; Haisman v Smelcher. Here, it's not as serious as if a residence had been entered, especially if vulnerable occupants had been present. It is serious nevertheless.
Driving whilst disqualified from holding or obtaining a driver licence as a repeat offender is a crime under section 32(1)(a) the Road Transport (Driver Licensing) Act 1999 (ACT) and attracts a maximum penalty of one year's imprisonment or a fine of $1600 or both. Conviction also attracts an automatic disqualification from holding or obtaining a driver licence for 24 months or such longer period as the court may direct.
This offence has been considered in detail in Cotter v Corvisy. Here, there was a repetition of the offence beyond merely the earlier offence to which reference has already been made. Mr Job has been convicted of this offence on five earlier occasions. The most recent one was the one on 19 August 2022, only less than six months earlier. The driving was, given the items found in the motor vehicle and the time when he was driving, namely 1.26 am, likely to have been for a criminal purpose, though that cannot be found beyond reasonable doubt. At least no reasonable explanation was given for the driving.
There was some concern too about the nature of the driving, namely that he was seen to be 'swerving across the lanes,' though some of the criminality to this would be relevant to the offence of drug driving and some concurrency there appropriate. Thus, Mr Job's sense of wilful disregard for the licensing laws suggests a contumelious offence, a serious version of the offence.
Driving with a prescribed drug in his oral fluid or drug driving is contrary to section 20, subsection (1), of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) which provides for a maximum penalty of three months' imprisonment or a fine of $4,000 or both. It also makes Mr Job liable to an automatic disqualification from holding or obtaining a driver licence for five years, reducible by the court to a minimum of 12 months.
As was explained in R v Coleman, the risk that this is to the public from impaired driving is clear. There were no passengers and the time of driving, very early in the morning, suggests that it was unlikely that there were many other road users around to be placed at risk. Again the purpose of the driving is relevant though it is unclear, not without, however, some reasonable suspicions. There was no evidence to show how far he had driven. A longer distance would likely make it a more serious offence.
Unfortunately with drugs, the level of impairment is not available to the court as it is with alcohol. Thus the court cannot, in the absence of any other evidence, conclude how impaired the offender is but any impairment is a risk and undesirable. That Mr Job was swerving between the lines suggest that there was a reasonably significant degree of impairment.
Driving an unregistered motor vehicle is a crime against section 18, subsection (1), of the Road Transport (Vehicle Registration) Act 1999 (ACT) and the section sets a maximum penalty of a fine of $3,200. It is thus a less serious offence. It is, of course, a breach of the regulatory regime that is intended to ensure orderly and safe driving and to ensure that vehicles are roadworthy and those who misuse the car can also then be identified. The vehicle had ceased to be registered on 11 December 2022, not a lengthy period, which moderates the offence somewhat.
Driving an uninsured motor vehicle is prohibited by section 289(1) of the Motor Accident (Injuries) Act 2019 (ACT) and sets a maximum penalty of a fine of $8,000. It is thus somewhat more serious than the offence of driving an unregistered motor vehicle, though the two offences are often, perhaps inevitably, committed at the same time. As the legislation suggests, this is an important mechanism to alleviate the serious harm that the use of motor vehicles can cause and to share the cost of that harm with users of motor vehicles and not merely the public at large.
Further, the offence of using a motor vehicle with number plates affixed issued for another vehicle is contrary to section 22 of the Road Transport (Vehicle Registration) Act 1999 (ACT) and attracts a maximum fine of $3,200. It is, though, a less serious offence, one that cannot be discounted and it is quite important to both the criminal and civil law as an identification of the vehicle and of the driver and the owner. There is also an element of dishonesty in the offence; R v Reid (No 1).
Subjective Circumstances
As noted above, the subjective circumstances of an offender are important factors to be included in consideration of the sentence to be imposed for offending. The evidence here was to be found in primarily the suitability assessment, the intensive correction order assessment report, the court report and the criminal history in the prosecution tender bundle.
Mr Job was born over 35 years ago in Victoria. He did not know his father who left home before he was born. His mother, however, re partnered and his mother and stepfather had two further children. Sadly, when Mr Job was 13 years old his youngest brother was killed by a truck at a very early age and it had a deeply traumatic effect on the family.
Mr Job has been diagnosed as suffering from post-traumatic stress disorder, 'PTSD', as a result and is currently prescribed medication. Though prior to this tragedy, Mr Job had a good relationship with his stepfather, that changed as his stepfather became very physically abusive, including towards Mr Job, and was described by him as 'always angry'. The marital relationship broke down and Mr Job's stepfather left the family. He has little contact with him.
His mother, however, did later re partner but to a military man who was posted overseas to Japan and America. Mr Job was sent to live with his grandparents in Queensland for about 15 years. [redacted]. He later moved to Grafton to live with a cousin but that was not satisfactory and he moved to Canberra about six years ago. His mother now lives here and they have a good relationship and speak nearly every day and they have extended family support.
Mr Job left school at the end of Grade 8 and has had limited formal education since then. He did complete a certificate III in welding while in custody and asked to engage in further training in the construction industry. Mr Job has had limited employment, initially on local farms and then with a manufacturer of windows. He was also employed in the laundry at the Alexander Maconochie Centre while on remand.
Mr Job has few friends and no relationships were mentioned, nor any dependents. Mr Job was involved in a motorbike collision when he broke the L1 disc in his vertebrae, and recently injured his thumb while playing football. He has no other physical health issues. Apart from the PTSD for which he is medicated, he has not been diagnosed with any mental health issues.
Mr Job commenced drug use at an early age. He started smoking tobacco at about age 10 and has continued. He currently smokes about 20 cigarettes a day. He commenced consuming cannabis when he was 13 years old but after a serious bout of paranoia ceased using at age 20. His drugs of choice are heroin [and] methamphetamine. He first consumed heroin at age 13 using intravenously and he has continued using about 0.2 to 0.3 grams daily. He began his use of methamphetamine a year or so later, again using intravenously, consuming about 1.75 grams a day. He has also used non-prescribed oxycodone He has not had any formal alcohol, tobacco or other drug treatment but has been prescribed Buvidal which he prefers to methadone. He says that since his arrest, he has not used any drugs but recently he has been tested and some results are positive when he admits using drugs. He says that he was using drugs at the time of his offending.
[Redacted]. While the current offences are the first offences he has committed in the ACT since he came here, he does have a significant number of offences recorded in the Queanbeyan Local Court.
[Redacted] As an adult, Mr Job has 150 matters on his record. The majority of the offences are serious dishonesty offences such as burglary or similar offences, 15 offences; fraud offences, 25 offences; stealing, 19 offences; and similar offences. There are other dishonesty offences on his record.
There are also, as would be expected, a number of drug related offences from possessing drugs, 11 offences, or utensils for use with drugs, six offences, and failing properly to dispose of needles or syringes.
He has a number of driving offences, including driving whilst disqualified, five offences, and driving an unregistered motor vehicle and a motor vehicle with incorrect number plates. Thus, he has previously sometimes on multiple occasions committed almost all of the current offences. He spent periods of time in prison on a number of occasions. Regrettably, this has not deterred him from further offences.
Mr Job's last offences seem to be in February 2023, although, of course, he has been in custody since his arrest on 9 February 2023 until he was granted bail on 9 June 2023. Since then, now over eight months, he has not further offended.
While he was in custody, Mr Job was of good behaviour and, as noted above, was employed. Since being on bail, his failures have been through the use of drugs and by initial failure to engage with Canberra Recovery Hub. He reported to the author of the suitability assessment that he regretted his behaviour. He has described it as 'stupid'. He did identify the effects that they would have done to the victim and his mother has confirmed this. He also repeated his apology and regret in the letter to the court.
Current Sentencing Practice
A matter that is set out in section 33 of the Sentencing Act but additional to the other matters already addressed and to which a court sentencing an offender must have regard is current sentencing practice which might also be considered as required by section 33(1)(za). This is important for the sentencing principle of consistency. Further, it always assists a court engaged in the difficult task of sentencing to have the benefit of the 'collective wisdom of judges'; R v Oliver.
There are two ways in which this may be achieved, one is through access to the statistics recorded in the ACT Sentencing Database and the other is through the consideration of cases considered comparable. There are significant difficulties in making use of statistics; see R v Bloomfield. This does not prevent a court making reference to them; see, for example, R v Elphick. Thus, as noted in Ashdown v R, they can provide useful information.
The limitations, however, must be acknowledged. Some of these in respect of the ACT Sentencing Database have been referred to the court in decisions such as R v Winters, R v Weldon, R v Massey (No 1).
Neither counsel provided comparable cases. This is unsurprising as they would be difficult to identify. As explained by Mr Armstrong in the prosecution's written submissions, 'The sentencing practice is difficult to assess as the charges of theft and possess article with intent to use in the course of' - I've inserted 'theft' - 'are common charges in the territory which cover a wide range of circumstances.'
As a result, it's perhaps as useful as anything to refer to the records in the ACT Sentencing Database as was done, for example, in the R v John. So these are relevant in the cases of theft and possessing articles for use in connection with theft:
In the case of theft in the ACT, roughly 70 per cent of offences dealt with in the Supreme Court resulted in sentences of fulltime imprisonment with ranges of terms between six months or less and five years, although 75 per cent were 12 months or less.
In relation to the charge of possess article with intent to use in the course of theft, around 85 per cent of offences dealt with in the Supreme Court resulted in fulltime imprisonment, with all of those terms of imprisonment being for 12 months or less.
Mr Armstrong did refer to the decision of R v Barrett where Mr Barrett possessed such articles. The articles were gloves, a beanie, a screwdriver and a knife. Mr Barrett was sentenced to nine months' imprisonment.
Ms Wallis pointed out that Mr Barrett had actually been apprehended for committing a series of burglaries that night where the Court of Appeal in Barrett v R noted that it 'involved the possession of numerous items in circumstances where there was a very immediate prospect of them being used in the course of a burglary or burglaries.' This could not be said of Mr Job or his situation.
Consideration
In order to impose a proper sentence, a very difficult task for any court, it is necessary to have regard to the purposes for which the sentence is to be imposed. That the purposes sometimes point in different directions does not permit the court to ignore them. It does, however, require the court to use them to achieve an instinctive synthesis of them to reach the ultimate single sentence for each offence; Stanley v Director of Public Prosecutions (NSW).
In this territory, the courts are greatly assisted by the articulation of the purposes for which a sentence is to be imposed set out in section 7 of the Sentencing Act. In this case, there is an important element of punishment since the offences are ones which for the most part do not undermine the security and safety of people and property in the community. Further, Mr Job has committed most of them before and it is important that there be consequences for repeat offending.
Such a sentence will also serve to denounce the offending which is an important part of the court achieving part of the goal of sentencing to reinforce the proper norms of conduct in a civilised society. The sentence will also be an effort, though the success is, on the evidence, generally about it uncertain at best, to deter others who may be minded to commit such offences.
The sentence has also been constructed to acknowledge the harm done to the victim. There is, of course, a victim or victims of the attempted theft but the community at large is a victim of crimes of these kind of offences for which Mr Job is to be sentenced. In the absence of a victim impact statement, the court can only but is able to rely on its general understanding of the harm caused to victims of the crimes committed by Mr Job; see R v Ridley. Such a sentence may also deter Mr Job from committing such offences again, though this has not been successful to date.
Rehabilitation is also an important part of the sentence where the criminogenic risk can be clearly identified and, as here, addressed. Mr Job was on parole when he committed the offences on 9 February 2023. While this does not increase the seriousness of the offences he then committed, it does require a more serious sentence to be imposed; see R v Bower (No 2). This would also increase the need to consider actually an element of specific deterrence in the sentence. It must also not lead to a perception of the likelihood of double punishment; R v Matthews.
Mr Job did plead guilty to each offence. For those committed on 3 July 2022, he pleaded not guilty and required the prosecution to prepare a brief of evidence. Nevertheless, he did enter those pleas of guilty in the Magistrates Court before committal.
The evidence for the offence was very strong, perhaps overwhelming, since he was found in flagrante delicto, so the discount which he otherwise would be able to access must not be significant. The pleas were, however, entered after representations were made and a charge was withdrawn. That, of course, is in itself a benefit. Naturally, Mr Job should not be punished for his plea of not guilty; Siganto v R.
For the offences committed on 9 February 2023, Mr Job did enter a plea of guilty at a very early stage. He is thus entitled to a greater discount even though the evidence was also quite strong.
Mr Job clearly had a very disadvantaged childhood. He suffered abuse, experienced a very traumatic incident which had serious mental health implications, had a disrupted parenting and that would have disrupted his schooling as well. This does attract specific principles which are relevant to sentence. As was said in R v Crawford (No 1):
In the same way, the High Court accepted in Bugmy v The Queen that childhood deprivation could explain subsequent behaviour such that the offender’s moral culpability 'may be substantially reduced'. The principles of the application of this principle were recently helpfully summarised by Loukas-Karlsson J in R v KN as follows:
(a) the effects of disadvantage and deprivation do not diminish with the passage of time: Bugmy at 44;
(b) the Bugmy principles do not diminish in relevance where an offender has an existing criminal record: Bugmy at 44 and R v Irwin; and (c) the application of the Bugmy principles is not discretionary: Irwin.
In summary, a history of disadvantage and deprivation may be a mitigating factor on sentence: see Bugmy. What is clear from Bugmy, and subsequent case law, is that the court must take that matter into account.
As noted above, Mr Job has expressed some remorse. He had expressed it first in his letter to the court, his pleas of guilty as some corroboration of that. It is also confirmed by his mother he repeated that to the authors of the suitability assessment. It includes, importantly, an understanding of the effect of his offences on the victim. This is also relevant to sentence.
While the reason for the offending is not clear, it is clear that Mr Job was using drugs at the time and this has not been challenged. It was submitted by Ms Wallis and not contested that the motivation was to fund his drug habit. His early introduction to the use of drugs is also very relevant.
Mr Job did express some keenness to engage in rehabilitation. That has, however, been patchy. He did attend the Canberra Recovery Hub on an initial occasion but then ceased attending for a while. He has been attending regularly, as his mother explained in a further letter to the court, that she had driven him there every day and back. He has engaged accordingly with the Canberra Recovery Hub every day.
He was required to obtain, however, a medical clearance at some stage and that met some 'administrative difficulty' but by 2 February 2024, it had been resolved. He was, it was anticipated, then able to continue at the Canberra Recovery Hub thereafter, as confirmed by his mother. There was no challenge to this evidence. This is significant progress, particularly as he has not been accused or found guilty of any further offences other than those constituted by the using of drugs.
In addition to the above matters, it is necessary for the court to take into account the facts of the offences and the nature of the circumstances of them, Mr Job's subjective circumstances, especially the early introduction to drugs at a time when he could not reasonably give informed consent, and current sentencing practice. Having regard to all these matters, and having considered all the relevant circumstances, it is clear that no other sentence than a sentence of imprisonment is required; section 10 of the Sentencing Act.
There are, of course, eight offences for which a sentence has to be imposed of which four have only a fine for the penalty. Of course a good behaviour order could be made for those offences. Nevertheless, a just and adequate sentence must be imposed for each of the offences and where imprisonment is to be imposed, the term must be carefully considered to ensure that Mr Job is not punished twice for the same criminality.
In addition, the court must carefully consider whether there are common elements between the offences or whether they are part of the same course of conduct to justify wholly or partly concurrent sentences. This is relevant here for while a trespass offence is punishable only by a fine, there is a commonality of criminality with it and the attempted theft offence. This also applies to the driving offences where there's a degree of common criminality there, though each offence must be addressed on its own terms.
So far as the terms of imprisonment are concerned, however, the length of the total sentence must then be reviewed to ensure that the principle of totality is respected and that the total sentence is adequate to reflect the total criminality but no more than that, and that the total sentence is not excessive and will leave open the realistic prospect of reform and hope for Mr Job to achieve his goals when he is released into the community. That has been done. The court must also ensure that the sentence does not leave a perception that the offender can commit multiple offences with [impunity]. That has also been considered.
Further, the consideration of the childhood disadvantage, mental health challenges and wish for rehabilitation is relevant and the moderation to that suggests that it is better to increase the level of concurrency rather than reducing the sentences. This has the effect of recording and making it clear that the offences are serious and need to be visited with stern responses which will achieve the purposes set out in the Sentencing Act, though the sentence can recognise the required moderation of the culpability of Mr Job as required by law.
The question then arises as to how the term of imprisonment is to be served. Mr Job has already served 245 days in prison and this is imprisonment under the sentence. Mr Armstrong submitted that the balance of the sentence should be in fulltime imprisonment and Ms Wallis submitted otherwise.
The offences are relatively serious but not so serious as to overwhelm the fact that Mr Job has made progress while on his bail. He has not shown complete abstinence, though there were some explanations, for example, the death of his grandmother. She had, of course, stepped in to care for him when his parents were unable to do so. This would to anyone have been very traumatic. It does not justify the use of drugs but explains it and provides some moderation to the assertion that he was not addressing his drug use seriously. The letter from his mother shows that he has been doing so more recently.
In these circumstances, it seems that the period of 245 days already served in custody would justify the need for punishment, denunciation and deterrence. Given the period of bail and his compliance in general terms, although there has been some significant noncompliance, would not justify returning him to prison at the current time for what inevitably would be a relatively short period.
The question then is whether a treatment order, an intensive correction order or a good behaviour order is appropriate. Given the fines that need to be imposed, it seems more likely that Mr Job will need to get into the workforce sooner rather than later. This will also address some of his criminogenic risks. Thought must also be given to the fact that despite the lapses in drug use, Mr Job has not committed any further offences.
It noted that Mr Job was assessed as not suitable for an intensive correction order. He was also found unsuitable by ACT Corrective Services for a treatment order. That was in part because of his lack of suitable accommodation which may not have been resolved. Nevertheless, given the length of the sentence and the presentence custody, it does appear that a suspended sentence and a good behaviour order is appropriate in all the circumstances.
Mr Job, please stand. I convict you of attempted theft and I sentence you to 14 months' imprisonment to commence on 20 June 2023 and end on 19 August 2024. I convict you of possession of articles with intent to use in the course of burglary and sentence you to six months' imprisonment to commence on 20 July 2024 and end on 19 January 2025. That is to be wholly cumulative on the sentence for attempted theft. Had you not pleaded guilty, I would have sentenced you to seven months' imprisonment. Had you not pleaded guilty for the attempted theft, I would have sentenced you to 16 months' imprisonment.
I convict you of trespass on premises and fine you $600 to be paid within 12 months from today. I convict you of driving whilst disqualified as a repeat offender and sentence you to two months and one week imprisonment to commence on 20 January 2025 and end on 26 March 2025. That is to be wholly cumulative on the sentence for possessing an article with intent to use in a theft. Had you not pleaded guilty, I would sentenced you to three months' imprisonment. I impose a 24 month driver licence disqualification to start from today, 20 February 2024.
I convict you of driving with a drug in your oral fluid and sentence you to one month, two weeks' imprisonment to be imposed to commence on 27 March 2025 and end on 10 May 2025. That is to be wholly cumulative on the sentence for driving whilst disqualified. Had you not pleaded guilty, I would have sentenced you to three months' imprisonment. I impose a 12 month licence disqualification to start on 20 August 2024.
I convict you of using an unregistered motor vehicle and I fine you $300 to be paid within 14 months from today. I convict you of using an uninsured vehicle on a road or related area and fine you $500 to be paid with 18 months from today. I convict you of using a motor vehicle with a number plate not properly issued to it and fine you $200 to be paid within 19 months from today.
The sentence of 22 months and three weeks commencing on 22 June 2023 and ending on 10 May 2025 is suspended from today for two years from today to 19 February 2026. You are required to sign an undertaking to comply with the offender's good behaviour obligations under section 85 of the Crimes (Sentence Administration) Act 2005 from today to 19 February 2026, with the following additional probation conditions:
(1) That you accept the supervision of the Commissioner of the ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising you considers appropriate, and obey all reasonable directions of the person supervising you;
(2) That you continue to engage with the Canberra Recovery Hub for as long as the person supervising you approves, or such other drug or alcohol treatment as approved by the person supervising you, and that you not return a positive result for drug and alcohol testing.
I certify that the preceding thirty-eight [38] numbered paragraphs and the Schedule are a true copy of the Reasons for Sentence of his Honour Justice Mossop.
Associate:
Date: 9 December 2024
DPP
Job [2024] ACTSC 367