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[2023] ACTSC 379
Supreme Court of the ACT
2023-12-11
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 Vincent (No 2) Citation: [2023] ACTSC 379 Hearing Date: 11 December 2023 Decision Date: 11 December 2023 Before: Mossop J Decision: See [73]. Catchwords: CRIMINAL LAW – JUDGMENT AND PUNISHMENT – Sentence – offender pleaded guilty to charges of aggravated burglary, theft and dishonestly drive motor vehicle – where offender requested court take into account seven other offences including theft and aggravated burglary – seriousness of offending ranges from lower end of mid-range to mid-range of objective seriousness – significant criminal history – where offender has recently shown motivation to rehabilitate – sentence of imprisonment imposed to be served by way of an intensive corrections order (ICO) SENTENCING – ADDITIONAL OFFENCES – Taking offences into account under Pt 4.4 of the Crimes (Sentencing) Act 2005 (ACT) – explanation of the decision in R v Campbell [2010] ACTCA 20 CRIMINAL LAW – INTEPRETATION – Interpretation of s 11 of the Crimes (Sentencing) Act 2005 – whether limits on the length of an ICO apply to each sentence or to aggregate term of imprisonment imposed – whether four year limit on term to be served by ICO applies to each individual sentence – whether aggregate sentence may exceed four years – there is power to make an ICO for sentences which in aggregate exceed four years – it is a matter of discretion rather than the legal availability whether such a sentence is imposed Legislation Cited: Criminal Code 2002 (ACT), ss 308, 312, 318, 324(1) Crimes (Sentencing) Act 2005, s 7, 11 Legislation Act 2001 (ACT), s 145 Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 5C Road Transport (Vehicle Registration) Act 1999 (ACT), s 22(1)(b) Road Transport (Driver Licensing) Act 1999 (ACT), s 32(1)(a) Cases Cited: Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 R v Barton [2001] NSWCCA 63; 121 A Crim R 185 R v Campbell [2010] ACTCA 20 Parties: Director of Public Prosecutions Christopher Vincent (Offender) Representation: Counsel M Howe (DPP) S Baker-Goldsmith (Offender) Solicitors Director of Public Prosecutions Legal Aid ACT (Respondent) File Numbers: SCC 160 of 2022 SCC 161 of 2022 SCC 351 of 2022
MOSSOP J: Introduction
No Charge number Offence Maximum Date of penalty offence 1 CAN 2137/2022 Dishonestly drive 5 years 19 - 20 motor vehicle, contrary and/or 500 February to s 318(2) of the penalty units 2022 Criminal Code 2002 (ACT) 2 CAN 2135/2022 Aggravated burglary 20 years 20 February contrary to s 312 of and/or 2000 2022 the Criminal Code penalty units 3 CAN 2136/2022 Theft, contrary to 10 years 20 February s 308 of the Criminal and/or 1000 2022 Code penalty units
4 SC CAN 91/2022 Dishonestly drive motor 5 years 18 February vehicle contrary to and/or 500 2022 s 318(2) of the Criminal penalty Code units 5 CAN2129/2022 Dishonestly take motor 5 years 18 February vehicle contrary to and/or 500 2022 s 318(1) of the Criminal penalty Code units 6 CAN 2130/2022 Aggravated burglary 20 years 18 February contrary to s 312 of the and/or 2000 2022 Criminal Code penalty units 7 CAN 2131/2022 Theft contrary to s 308 10 years 18 February of the Criminal Code and/or 1000 2022 penalty units 8 CAN 2132/2022 Fail to stop motor For a first 18 February vehicle for police offence: 12 2022 contrary to s 5C Road months Transport (Safety and and/or 100 Traffic Management) penalty Act 1999 (ACT) units 9 CAN 2138/2022 Use vehicle with a 20 penalty 20 February deceptively changed units 2022 number plate contrary to s 22(1)(b) of the Road Transport (Vehicle Registration) Act 1999 (ACT) 10 CAN 2139/2022 Drive whilst disqualified 12 months 19–20 contrary to s 32(1)(a) of and/or 100 February 2022 the Road Transport penalty (Driver Licensing) Act units 1999 (ACT) 11 CAN 2141/2022 Unlawful possession of 6 months 4 March 2022 stolen property contrary and/or 50 to s 324(1) of the penalty Criminal Code units
Unusually, the schedule offences include very serious and separate offences of aggravated burglary and theft. Facts – substantive offences
As will be apparent, the offending occurred on 18, 19 and 20 February 2022 and 4 March 2022. Notwithstanding that a number of the scheduled offences occurred on 18 February 2022 (before the offences for which he is to be sentenced), I will describe the facts relating to the sentences upon which he is to be sentenced first before moving on to describe the facts relating to the scheduled defences.
Charge 1 – Dishonestly drive motor vehicle – 19-20 February 2022
At about 3:40am on 19 February 2022 a red Holden Commodore utility vehicle was stolen from Park Street, Belconnen. The vehicle was fitted with a dashboard camera which recorded audio and video. He was recorded on it saying “because I’m gonna hit that scooter store bro. I’m gonna hit it. Like right now man”. At one point he was captured on the dashboard camera because he parked the ute and walked in front of the bonnet. The footage captured his face and a distinctive tattoo on his right hand.
This and subsequent driving of the red ute on 20 February 2022 is the offence of dishonestly driving a motor vehicle without consent.
Charges 2 and 3 – Aggravated burglary and theft – 20 February 2022
At 4:28am on 20 February 2022 the offender drove the red ute to Botany Street in Philip. He parked outside a shop named Canberra Electric Bikes. He got out of the ute wearing a baseball cap, a black mask and gloves. Two people arrived in a white Mitsubishi van. A second person got out of the red ute. At 4:34am those four people are recorded on CCTV footage as using two angle grinders and a crowbar to force entry into the Canberra Electric Bikes store. The offender can be seen as one of the four people. They activated the security alarm.
Gaining access to the store, the group stole the following items: (a) One Lapierre Ezesty AM 9.0 large electric bike valued at $8586.20; (b) One Grey Focus Jam 7.9 large electric bike valued at $6928.90; (c) One NCM Aspen electric bike valued at $1240.00; (d) One Blue Focus Jam 6.8 medium electric bike valued at $5856.40; (e) One Grey Norco VLT A1 medium electric bike valued at $6791.80; (f) One Black Focus Jarifa 6.6 large electric bike valued at $3427.60; (g) One Merida Eone Sixty 300 S large electric bike valued at $4519.80; and (h) One Grey XDS E-Rupt 4.0 electric bike valued at $2869.90.
The total value of the stolen electric bikes was $40,220.60.
The items were placed into the back of a white Mitsubishi van and the red ute. At 4:37am two of the unidentified people drove the white van away. The offender and the other unidentified person drove the red ute away.
The aggravated burglary was aggravated by reason of the offender being in company.
Facts – Scheduled offences
Charge 4 – Dishonestly drive motor vehicle – 18 February 2022
At 3:18am on 18 February 2022, CCTV footage captured the offender driving a stolen Kia Sorento into the yard of Elevate Constructions on Gladstone Street, Fyshwick. The Kia had been reported as having been stolen between 13 February 2022 and 14 February 2022 from an address in Chapman.
Shortly after, the offender was captured on CCTV footage driving the Kia Sorento to 67 Gladstone Street, Fyshwick. He parked the car near a 2017 Silver Great Wall ute owned by Barlens Pty Ltd. The ute was parked outside the Barlens office.
The driving of the Kia Sorento involved a contravention of s 318(2) of the Criminal Code.
Charge 5 – Dishonestly take motor vehicle – 18 February 2022
At 3:44am on 18 February 2022, the offender opened the driver’s door of the Great Wall ute. He drove away. An unidentified person drove the stolen Kia Sorento away from the scene.
At about 5:00am, the offender returned to the parking area outside 67 Gladstone Street, Fyshwick. The offender was driving the ute with David Woods and an unidentified person. The three people exited the ute and approached Ion DNA Electric Vehicles, which is located next door to Barlens.
The taking of the Great Wall ute constitutes the offence of dishonestly taking a motor vehicle contrary to s 318(1) of the Criminal Code.
Charges 6 and 7 – aggravated burglary and theft
The offender used an angle grinder on the front door lock of the Ion DNA Electric Vehicles shop. The unidentified third person used a crowbar to open the door. At 5:03am, the three people gained entry into the store. They set off the security alarm. The group stole the following items from Ion DNA Electric Vehicles and placed them into the back of the ute: (a) One Mach 10 electric scooter valued at $1332.00; (b) One Mach 10R electric scooter valued at $2799.00; (c) One Nanrobot D6 electric scooter valued at $2222.00; (d) One Kaabo Mantis Solo Plus electric scooter valued at $1243.44; (e) One Mercane wide wheel dual motor scooter valued at $1340.00; and (f) One Ralday V2 Carbon electric skateboard valued at $1259.00.
The total value of items stolen was $10,195.44.
At 5:06am, the offender drove the ute away from the location. Inside the ute was the unidentified person and Mr Woods.
The store owner was alerted by the security alarm. He then attended the store with police.
The burglary was aggravated because it was in company.
Charge 8 – Failure to stop motor vehicle – 18 February 2022
Shortly after 5:06am, Senior Constable Jarrad Drennan received a police radio transmission giving details of the burglary and details of the stolen Great Wall ute. He saw the ute driving on Newcastle Street and turned around to pursue it. The offender increased his speed. The Senior Constable activated his lights and sirens in an attempt to cause the offender to pull over.
The offender did not stop, turned left at an intersection, travelled across a median strip onto the incorrect side of the road and then travelled back to the correct side, “speeding away” in an 80 km/h zone. The offender drove away across the ACT/NSW border and out of sight of the Senior Constable.
The conduct involves a breach of s 5C of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) because the activation of lights and sirens is taken to be a signal to the offender to stop the motor vehicle.
Charge 9 – Use vehicle with a deceptively changed number plate – 20 February 2022
This charge relates to the burglary and theft from Canberra Electric Bikes. The stolen red ute had stolen number plates on it. That gives rise to the contravention of s 22(1)(b) of the Road Transport (Vehicle Registration) Act 1999 (ACT). Charge 10 – Drive whilst disqualified transfer charge – 19-20 February 2022
At the relevant time of the offending, the offender was disqualified from holding or obtaining a driver licence until 17 January 2023. Therefore, when he drove the red ute and the Great Wall ute he was driving whilst disqualified.
Charge 11 – Unlawful possession of stolen property
Objective seriousness
The offending is aggravated by the fact that the offender was on parole at the time of the offences.
The burglary was committed on commercial premises, at night and when no victim was present. Entry was forced. There was no gratuitous damage caused to the premises. The source of aggravation was the presence of other people rather than weapons. The offending was premeditated, in that the offenders wore hoods and masks and tools were used to gain entry to the premises. The offending is at the lower end of the mid-range of objective seriousness for an aggravated burglary.
So far as the theft is concerned, the value of goods stolen was substantial. It is in the mid-range of objective seriousness.
The charge of driving a stolen motor vehicle was aggravated by its purpose, namely the commission of further offences. It is offending in the mid-range of objective seriousness for this offence.
Subjective circumstances
The offender is the youngest of three children. He reflected on his childhood in primarily negative terms and indicated that he predominantly resided in Canberra with his mother and siblings. He described being emotionally disconnected from his mother while he was younger and recounted that she used cannabis when he was young. He identified that she has remained a supportive influence throughout his life. He describes his father being predominantly absent from his life in his formative years, having minimal contact until he relocated to reside with his father in Victoria when he was approximately 10 years old. He described that as an unpleasant experience and returned to Canberra shortly thereafter. He explained that he never reconnected with his father, had no contact with his father in the last five years, and that his father is now deceased. He described having recently improved his relationships with his family, having a particularly strong bond with his grandmother and older brother. The offender’s grandmother verified this claim.
The offender described having an intermittent domestic relationship that resulted in two children. The relationship ended approximately 10 years ago. He described the relationship in principally negative terms and expressed having difficulties maintaining contact with his children immediately following the conclusion of the relationship, resulting in periods of him being absent in the children’s lives. He explained that the relationship is now amicable and includes daily contact.
He also reported being involved in a tumultuous relationship, ending around the time of the current offences. He described experiencing significant emotional stress as a result of these relationship issues and described an inability to manage the stress at that time. He asserted that he has since developed positive coping strategies.
He has currently been in a relationship for approximately eight months and described it as positive. His current partner has children from a previous relationship and they are of a similar age to his own children. He describes his current goal as being able to positively contribute to both his family and his partner’s family. The offender’s partner verified that they have a positive and supportive relationship.
He reported that he commenced residing with his grandmother in her ACT Housing property four weeks ago. He indicated that he had relocated to assist in caring for her in light of her health issues. He explained that if sentenced to an intensive corrections order (ICO), his intention would be to continue residing with his grandmother. He currently does not contribute to the rent, however, regularly contributes to daily living expenses. He reported that for approximately six months prior to residing with his grandmother he had resided with his partner and her children. He stated a longer-term desire to secure independent accommodation to facilitate spending time with his children, upon the recovery of his grandmother.
Criminal history
The offender has a substantial criminal history. Amongst his offending is the following. In 2007, he was convicted of driving while disqualified. He committed another offence of driving while disqualified later in 2007. This resulted in him being resentenced on the earlier offence.
In 2008, he committed a further offence of driving while disqualified and was resentenced on the good behaviour order associated with the previous conviction.
In 2013, he was convicted of a series of minor and more serious driving offences as well as two counts of driving while suspended. That sentence involved a short period of full-time imprisonment. At the same time he was also convicted of two counts of failing to appear after a bail undertaking. Later in 2013 he was convicted of contravening a protection order, assault and property damage.
In 2015, he was convicted of driving while disqualified and being a driver with methamphetamine in his oral fluid. He was also convicted of minor theft, failure to appear after a bail undertaking, and riding or driving a motor vehicle without consent, making off without payment and being an unlicensed driver.
In 2016, he was convicted of aggravated burglary, three counts of aggravated burglary and two counts of theft. He received sentences of imprisonment and partially suspended sentences of imprisonment.
In 2018, he was convicted of driving while disqualified and given a partially suspended sentence of imprisonment. He was also convicted of using an unregistered and uninsured vehicle.
In 2018, he was convicted by Elkaim J of two counts of destroying or damaging property and one count of assault occasioning actual bodily harm. This was offending directed to his former partner and mother of his two children.
In 2020, he was convicted again of driving while disqualified and given a sentence of imprisonment. He was also convicted of riding or driving a motor vehicle without consent and having a prescribed drug in his oral fluid, receiving stolen property and two counts of unlawful possession of stolen property.
Later in 2020, he was also convicted of assault occasioning actual bodily harm, destroying or damaging property and minor theft.
He was back before Elkaim J in 2021 and given sentences of imprisonment totalling two years, three months and 11 days on charges of receiving stolen property and unlawful possession of stolen property as well as breach of the good behaviour orders on the earlier sentence.
This is a very bad criminal history. It is consistent with a pattern of offending driven by the need to obtain money to buy illicit drugs.
Plea of guilty
The offender pleaded guilty at a criminal case conference. Each sentence will be reduced by 15 percent on account of those pleas of guilty. Time in custody
The offender was in custody from 4 March 2022 until 21 June 2022 and again from 27 April 2023 to 1 May 2023 due to the present charges. This is a period of pre-sentence custody which will be taken into account by backdating the first sentence imposed. The backdate date is 23 August 2023.
Consideration
As pointed out earlier the offender has a poor criminal history. It reflects his illicit drug use over many years. The distinguishing feature in the present case is that there is substantial evidence from a range of people that the offender’s approach to life has significantly changed since his release from custody. That is consistent with the reports relating to his conduct in custody.
The sentencing exercise is an unusual one in that the prosecution has agreed to having some very serious offending included in the schedule, to be taken into account on the aggravated burglary charge. In R v Campbell [2010] ACTCA 20 the Court of Appeal adopted the explanation of the effect of sentencing based upon a schedule by reference to what Spigelman CJ said in R v Barton [2001] NSWCCA 63; 121 A Crim R 185 at [64]. That is by increasing the significance of personal deterrence and giving greater weight to “the community’s entitlement to extract retribution for serious offences when there are offences for which no punishment has in fact been imposed”. That approach was adopted again by five judges in Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 at [42]. In the context of the Australian Capital Territory, although Spigelman CJ’s language has been adopted in Campbell, “retribution” may not be the appropriate word. The need for “punishment” would be a factor consistent with s 7 of the Crimes (Sentencing) Act 2005 (ACT). Nevertheless, the principle remains the same that although the offender is being punished for the substantive offence, the existence of that other offending affects the substantive sentencing exercise by increasing the weight that is to be given to certain factors. Having mentioned the decision in Attorney-General’s Application, it is worth noting the remarks made at [47]-[58] about the appropriateness of adopting this procedure where there are serious offences to be included in the schedule.
The prosecution pointed to three comparable cases, each involving aggravated burglaries of commercial premises. Each involved a starting point of 24 months’ imprisonment.
In the present case, taking into account the schedule offences, the aggravated burglary warrants a starting point of four years’ imprisonment, reduced to 41 months by reason of the plea of guilty. The charge of theft, which carries a maximum penalty half that for the aggravated burglary, warrants a starting point of three years’ imprisonment reduced to 31 months’ imprisonment. The charge of dishonestly driving a motor vehicle warrants a starting point of 20 months’ imprisonment reduced to 17 months’ on account of the plea of guilty. The close relationship between the conduct amounting to the three offences and the need to achieve an appropriate overall sentence warrants a significant degree of concurrency. The charge of theft will be cumulative as to six months upon the sentence for the aggravated burglary and the sentence of dishonestly driving a motor vehicle will be cumulative as to six months upon the sentence for the theft. The overall result is a sentence of imprisonment of 53 months (four years and five months).
Orders
I certify that the preceding seventy-eight [78] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop Associate: Date:
DPP
Vincent
The offender explained that he had experienced a number of disruptions to his schooling, including having been suspended on multiple occasions due to becoming involved in physical altercations and the supply of cannabis. He did not complete Year 8 and has a low level of literacy. He took steps to seek a learning difficulty diagnosis, but did not take all steps to complete the diagnosis. He describes his level of literacy as being a source of frustration from time to time.
He recounted a sporadic history of employment in various industries including working for a builder for approximately 10 years from the age of 18. He acknowledged periods of unemployment arising largely out of illicit substance abuse. He reported that he had commenced employment as a casual driver for a scaffolding company on 3 October 2023. This has given him satisfaction and he expressed a desire to obtain further licenses to develop his skills. He emphasised that maintaining a valid drivers licence was of particular importance to him given that his employment requires him to drive vehicles.
He explained that he has made a conscious effort to distance himself from antisocial influences since his release from custody in May 2023. He also disclosed that he considers some previous acquaintances like “family”, despite them being negative influences, and therefore continues to maintain occasional contact with those persons. He explained that he has new prosocial connections from his current employment and engages with them outside of work.
The offender commenced using cannabis at approximately seven years of age. He gradually increased his use to the point of daily consumption. This continued for a period of years. He described “growing out” of cannabis at the age of 18 . He estimated that he had used cannabis approximately 10 times over the last 20 years and denied any current use.
He reported use of pills including ecstasy and speed at approximately 14 years of age but said that he had not consumed those substances for four or five years.
He initially smoked ice at 16 years of age and estimated the consumption as being weekly at 18 years of age. He describes the consumption as increasing steadily from then until about three years ago, when the use of the substance was “all day every day.” He identified the use of the substance as problematic and claimed that he has maintained abstinence since his most recent incarceration. He claimed abstinence from all substance use since his release from custody and attributed that to his employment and an understanding of the negative side effects of that use.
He reported that he had been found not suitable by both the Canberra Recovery Service and Karralika Intake Assessments in relation to his applications for day programs for alcohol and other drug rehabilitation. He provided a sample to ACT Corrections for urinalysis on 30 November 2023. That produced a preliminary negative result. Corrections were able to confirm that he had made contact with Canberra Recovery Service and Karralika however the author of the pre-sentence report noted that the offender had formed the view that the services were inappropriate for himself and that he has not engaged with the services since.
He reported himself to be in good general health. He engaged in counselling while in custody. He attributed this to a new level of fulfillment in life due to having made changes to his lifestyle and having secured employment.
He accepted responsibility for the current offending. He said that his thought processes were impeded by the use of high quantities of methamphetamine. The motivation for his offending was to finance his illicit substance use.
The author of the pre-sentence report indicated that an actuarial tool assessed the offender as being suitable for a medium level of supervision within ACT Corrective Services. He is reported as having a history of mixed compliance with community-based orders, but recently his level of compliance appears to have noticeably improved.
The offender completed a number of courses while in custody. He was also a successful worker in the prison bakery.
A number of letters and references were tendered which supported the proposition that, following his release from custody, his approach to life and the use of drugs has substantially improved relative to his pre-incarceration approach. There were references from his grandmother, his mother, his sister, his previous partner, two of his children and one stepchild with that partner, his current partner, a friend of five years and one of his teachers from the Alexander Maconochie Centre who assisted in him gaining employment. There is also a letter from his current employer indicating his value as an employee and the likelihood of an offer of permanent employment in the future. I accept the evidence of there being a change in approach to life and a desire to depart from the drug using lifestyle.
The next issue is how that sentence should be served. On the one hand there is a strong case for simply requiring the sentence to be served by way of full-time custody. For a person with such a poor criminal history and a long-term problem with the abuse of illicit substances the need for specific deterrence and protection of the community would justify such an outcome.
On the other hand, the offender is now 36, is apparently free of drugs, is employed and apparently motivated to live within the framework of lawful employment and has various family connections and obligations. In my view, notwithstanding the gravity of the current offending, the circumstances are such as to warrant dealing with the matter in a way which encourages his longer-term rehabilitation.
Counsel for the offender submitted that a wholly suspended sentence of imprisonment would be appropriate. I am not satisfied that that is the case. That is because, having regard to his long history of criminal conduct, there is a significant risk that his trajectory towards rehabilitation will not be smooth and it is desirable that his progress be closely monitored and the incentives for maintaining that trajectory be maximised. That can be achieved by requiring that he serve his sentence by way of intensive correction in the community. The focus of intensive correction will need to be upon keeping him free of drugs.
Dealing with the matter by way of intensive correction involves a significant risk of failure. Often the complications of life outside the prison system will mean that an offender the subject of an ICO will be unable to avoid offending or drug use. The benefit of an ICO is that the consequences of such failures are reasonably predictable and provide every incentive for the offender to rehabilitate themselves.
In determining that it is appropriate to deal with the matter by way of intensive correction, I have interpreted s 11 of the Crimes (Sentencing) Act as imposing limitations on the length of each individual sentence rather than the aggregate of all sentences to be imposed. Further, in relation to the aggravated burglary charge I have had regard to the matters in s 11(3).
Only very limited submissions were made in relation to the question of statutory interpretation as to whether the four-year limit applies to each individual sentence imposed, or applies to the aggregate of all sentences imposed, or applies to the aggregate sentence on all sentences imposed on a particular occasion. Having regard to the popularity of ICOs as a sentencing outcome, that is a significant issue. In my view, the language of s 11 is consistent with the limitations being applicable to a sentence of imprisonment imposed in relation to an individual offence as distinct from the aggregate of the sentences imposed for a number of offences. That arises from the use of the singular “an offence”, “a sentence of imprisonment” in s 11(1) which is then carried through to the remainder of the section. I do not consider that s 145 of the Legislation Act 2001 (ACT) requires a different conclusion. That section provides that “words in the singular number include the plural and words in the plural number include the singular”. Given that s 145 allows a singular to be read as a singular, then it is open to read s 11 as applying to each individual sentence. It would only be if it required s 11 to be a reference to an aggregate of a number of sentences and not as an individual sentence that a sentence of greater than four years or a number of sentences would be precluded.
However, given that what is being done in s 11 is to impose a numerical limit upon the sentence or sentences that can be the subject of an ICO, the length limit must apply to either each individual sentence or a number of sentences. In other words, it must be one or the other and cannot be both.
In circumstances where the language is consistent with it applying to each individual sentence and where s 145 could not operate in a way that precluded the section from applying to each individual sentence, the section must apply to each individual sentence.
That does not mean that the fact that a sentence exceeded four years would be irrelevant in determining whether an ICO should be made. It would be a very relevant consideration in determining whether one would be appropriate. It is clear from the structure of s 11 and the nature of an ICO that they will usually not be suitable if intensive correction is required to be maintained for a period in excess of four years. However, that is a matter going to the discretion to make an ICO rather than the legal availability of such an order.
In the circumstances of this case, I consider that the desirability of breaking the long-term cycle of drug addiction and offending warrants the imposition of an overall sentence of imprisonment which exceeds the four-year maximum applicable to each individual sentence. When the period of backdating is taken into account, the actual time to be served by way of intensive correction will only be marginally above the four-year limit and I consider that the overall goal justifies the maintenance of an order in relation to the offender for this period of time.
I do not accept the submission that the offender’s current work obligations preclude the appropriateness of an ICO. If they did then that would be a reason to require a period of full-time detention rather than a reason to address the matter by way of a more lenient wholly suspended sentence. The reason for that is that disposition by way of an ICO involves a significant degree of leniency in order to achieve the rehabilitative goal. It will be harder to justify an additional degree of leniency because the offender might find it inconvenient to comply with the obligations of an ICO.