Guy v Anderson and Telford

4. That sentence be suspended from today for a period of twelve months.

5. Mr Guy be required to sign an undertaking to comply with the offender's good behaviour order obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for two years from today with the following conditions:

(a) a probation condition, that Mr Guy be subject to the supervision of the Director-General or her delegate for a period of twelve months, or such lesser period as the person delegated to supervise him considers appropriate, and he obey all reasonable directions of the person delegated to supervise him, particularly in relation to alcohol and other drug use, treatment and counselling, but also in relation to relationship issues, anger management and mental health, including any directions to attend treatment and counselling as may be considered appropriate;

(b) A condition that he perform 80 hours of community service work within twelve months.

1. A good behaviour order under s 13 of the Crimes (Sentencing) Act 2005 (ACT) is, as its name implies, an order that an offender be at liberty so long as he or she is of good behaviour. Good behaviour is measured by compliance with the obligations and conditions of the order, one of the most significant being that the offender must not commit an offence punishable by imprisonment (s 86(1)(a) of the Crimes (Sentence Administration) Act 2005 (ACT)).

2. To stop such offending and, by that, to protect the community, is the most important purpose of the criminal law. The obligation, however, makes it clear that, in itself, the obligation is not absolute. Offences which are not punishable by imprisonment, for example, would ordinarily be regarded as breaches of good behaviour but do not breach the statutory obligations. Breaches, too, can be of a wide range, and it is necessary to consider the precise circumstances of the breach before deciding on appropriate action.

3. On 14 January 2013, I heard an appeal by Christopher Guy against a sentence of six months' imprisonment, constituted by one months' imprisonment for an offence of damaging property and the imposition of a concurrent six month sentence of imprisonment, which had been suspended for an offence of assault occasioning actual bodily harm. The conviction for the damaging property offence constituted a breach of a good behaviour order.

4. Having regard to the period of custody already served by Mr Guy, I set aside the orders and made concurrent good behaviour orders for a period of twelve months. In relation to the offence of assault occasioning actual bodily harm, I imposed a sentence of six months imprisonment but suspended it from that day.

5. Shortly before I handed down my decision, Mr Guy committed a drink driving offence with a very high reading of 0.191%. He was sentenced to three months imprisonment to be served by periodic detention, as I will mention shortly.

6. On 5 September 2013, however, Mr Guy was convicted of offences of refusing to provide a breath sample, contrary to s 22(c) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT), and being an unlicensed driver, contrary to s 31(1) of the Road Transport (Driver Licensing) Act 1999 (ACT); both offences having been committed on 10 March 2013, just short of two months after I had earlier re-sentenced him.

7. The learned Magistrate sentenced Mr Guy for all three offences, it appears. On the first, as I have said, the Magistrate sentenced him to three months' imprisonment, to be served by periodic detention; on the second, namely the refusal to provide a breath sample, to imprisonment for a cumulative period of four months, also to be served by periodic detention, which commenced on that date and will end sometime after 4 April 2014, as Mr Guy has missed one detention period and has been excused from attending two more.

8. As required, the learned Magistrate then committed Mr Guy, under s 107 of the Crimes (Sentence Administration) Act, to this Court, to be dealt with for the breach of the good behaviour order.

9. While I am not sentencing Mr Guy for these fresh offences and, indeed, must not punish him again for them, it is important, in order to consider the seriousness of the breach of the good behaviour order, to understand the facts.

10. In brief compass, Mr Guy drove a motor vehicle in Civic early on Sunday 10 March 2013. He drove, at speed, over a pedestrian crossing, on the wrong side of the road, mounted the footpath and was finally stopped by police. Mr Guy emerged from the vehicle, visibly intoxicated. He was directed to undergo a roadside screening test using an alcohol screening device, but failed to provide a sample of his breath as directed.

11. He was taken into custody to the City Police Station for the purposes of breath analysis. An authorised officer required him to provide a sample of his breath, but Mr Guy would not listen to the directions he was given and refused to undergo the analysis. Mr Guy's speech was slurred, he was unsteady on his feet and there was a strong smell of alcohol on his breath. Police formed the opinion that he was well under the influence of alcohol. He was unco-operative with police.

12. Fortunately, traffic conditions were light, but there were numerous people walking along the footpaths.

13. On 1 June 2011, Mr Guy had been convicted of a drink driving offence, making him, for the purposes of the legislation, a repeat offender. Indeed, he has a long record for such offences. Mr Guy told police he did not hold a drivers' licence.

14. The facts surrounding the earlier offences are set out in my reasons for upholding the appeal (Guy v Anderson [2013] ACTSC 5 at [11]- [27]), and I do not need to repeat them.

15. Mr Guy has had a challenging life. I have also set out his subjective circumstances in my reasons for upholding the appeal (Guy v Anderson at [28]-[47]). I take into account the matters that are there set out and do not need to repeat them.

16. In summary, Mr Guy's parents separated when he was 15, leaving him somewhat shocked, though he has had ongoing contact with his father and limited phone contact with his siblings and mother. Unfortunately, his father died on 12 October 2013, and Mr Guy has been deeply affected by that.

17. Mr Guy had trouble at school because of dyslexia and Attention Deficit Hyperactivity Disorder, leaving at age fourteen. Despite some training in a number of trades, he has had limited employment, though I was told that he is doing some farm work now for two or three days a week.

18. He has a long poly-drug and alcohol history, dating back to when he left home, mainly using cannabis and alcohol. Mr Guy has complex mental health issues and has been subject to various diagnoses.

19. He has a long criminal history involving one hundred and twenty-one offences in thirty-four court appearances, mostly involving motor vehicle offences, including now seven drink driving offences and twelve offences of driving while suspended or cancelled. There are, however, a number of burglary, larceny and taking and using motor vehicle offences on his record. He has been dealt with for a number of breaches of court orders.

20. I had an updated Pre-Sentence Report, however, which noted that Mr Guy has attempted to comply, to the best of his ability, with current orders, though his mental health challenges interfere with his ability to attend supervision appointments. He has, however, started a new mental health medication regime, which has led him to be more attentive with appointments and complying with directions to seek counselling and assistance.

21. Mr Guy has had two significant relationships. One commenced when he was eighteen and lasted for twelve years, resulting in the birth of three children. Tragically, his eldest son died in a motor vehicle accident. He has a current relationship which started about five years ago. Unfortunately, it is a volatile relationship, with ongoing difficulties and conflicts.

22. The updated Pre-Sentence Report stated that Mr Guy claimed not to be consuming a great deal of alcohol, a view supported by his partner, but the observation of the author of the Pre-Sentence Report suggests that this is not so. The author saw him on a home visit at about 11:30 am, clearly affected by alcohol.

23. Mr Guy says, however, that his medication, which he now receives by injection, has a bad effect when taken with alcohol and, accordingly, he has reduced his consumption. This was, I have to say, merely his instructions to his lawyers, and was not corroborated by any other evidence.

24. Mr Guy continues to be challenged by his mental health. In June this year, he was admitted to Calvary Hospital following an accidental overdose of Seroquel. Since then, however, he has been adhering to a medication regime, and his treatment plan includes ongoing supportive contact, medication administration and psychiatric review.

25. Mr Guy is considered at medium risk of reoffending, due primarily to his ongoing mental health issues and alcohol and other drug use, combined with his relationship issues, limited family support, unemployment and lack of appropriate leisure and recreation activities.

26. I was also provided with a comprehensive forensic psychiatric report. The report by consultant psychiatrist Dr Anthony Barker set out a long psychiatric history, dating back to when Mr Guy was fourteen. He had noted fifteen diagnoses since 2004, which ranged widely. They include some low grade psychotic illness, depression, personality disorder, bipolar affective disorder and others. Dr Barker stated that:

From the information available to the writer, it is the writer's opinion within reasonable medical certainty that Mr Guy has psychiatric diagnosis as per DSM-5 (American Psychiatric Association 2013), consistent with:

Major depressive disorder, in full remission

Borderline personality disorder

Antisocial personality traits

Substance use disorder (alcohol, cannabis)

History of substance use disorder (amphetamines)

History of substance-induced psychotic disorder.

... I consider that Mr Guy's symptoms are most likely attributable to a diagnosis of borderline personality disorder, complicated by significant substance use. Whilst it is possible that Mr Guy suffers from bipolar disorder, I consider that this diagnosis is less likely, as the symptoms that he has experienced which would suggest bipolar disorder could easily occur secondarily to his personality disorder and substance use.

28. Unsurprisingly, Dr Barker recommended that Mr Guy would benefit from ongoing contact with Mental Health Services. Medication may be of some benefit, though the efficacy of such medication for treatment of borderline personality disorder is relatively low. He suggests that Mr Guy would most likely benefit from psychological therapy that aims to assist him with developing skills to manage his affective instability, and to manage distress more effectively. He also recommends that Mr Guy should engage in drug and alcohol counselling.

29. I had a letter from a psychologist at the Forensic Services Mental Health which confirmed Mr Guy's present compliance with his prescribed treatment. Mr J De Bruin, who appeared ably for Mr Guy, informed me, without objection, that Mr Guy was attending at the Canberra Men's Centre for relationship counselling and that this had been of benefit to both him and his partner. He was engaged in some employment, as I have noted, but it seems for only two or three days a week. He is also exploring the possibility of anger management counselling.

30. As I pointed out in Saga v Reid [2010] ACTSC 59 at [99], it is important to treat breaches of good behaviour orders seriously, since a failure to act where there has been a breach has the capacity to bring such orders into disrepute and lead offenders into believing that they can ignore them with impunity.

31. Nevertheless, it is important to ensure that the breach is treated appropriately, having regard to all the relevant circumstances, including the nature of the offence constituting the breach, the circumstances of the offending, its relevance to the offence for which the order was originally made, and the circumstances, particularly changed circumstances, of the offender in the meantime.

32. In the case of Mr Guy, it is also relevant to recognise his mental health challenges. The effect of these has been considered many times by the courts. The Victorian Court of Appeal has set out, usefully, the relevance of impaired mental functioning in R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at 276; [32]. This relevantly includes that the condition may reduce the moral culpability of the offending conduct as distinct from the offender's legal responsibility. In this case, that will affect what is just punishment and denunciation and perhaps general deterrence, the less likely to be relevant sentencing objectives.

33. Sometimes, also, specific deterrence should be moderated, depending upon the nature and severity of the symptoms of the condition.

34. On the other hand, as Ms M Hunter, who appeared helpfully for the Crown, properly submitted, Mr Guy has a long and depressing history of breaches of the law, clearly associated with his alcohol abuse.

35. Nevertheless, it does seem to me that it is likely that his mental health challenges are a contributor to his offending.

36. The breach constituted by the failure to provide a sample of breath is a relatively serious one, since drink-driving is a scourge in our community, and puts drivers, passengers, but also pedestrians, at risk. Nevertheless, it is, in this case, quite a different kind of offence from those for which the good behaviour orders were imposed. There is, it would appear, some similarity in the causation, as the earlier offences had been committed while Mr Guy was under the influence of alcohol. This seems to me to require some significant sentencing response.

37. Since one of the good behaviour orders was made when I suspended a sentence of imprisonment, I am, upon finding a breach has been committed, obliged to cancel the good behaviour order (s 110 of the Crimes (Sentence Administration) Act), and either impose the suspended sentence, or re-sentence Mr Guy.

38. I note that Mr Guy has been assessed as suitable for a community service work condition to a good behaviour order and for periodic detention, for which he signed the relevant undertaking.

1. I find the breach of the good behaviour orders made on 14 January 2013 to be proved.

2. I extend the term of the good behaviour order imposed for the offence of damaging property by twelve months, to expire on 11 January 2015.

3. I cancel the good behaviour order imposed for the offence of assault occasioning actual bodily harm.

4. I re-sentence you to six months' imprisonment, of which I note thirteen days have already been served.

5. I suspend the sentence today for a period of twelve months.

6. I require you to sign an undertaking to comply with the offender's good behaviour order obligations under the Crimes (Sentence Administration) Act for two years from today, with the following conditions:

(a) a probation condition that you be subject to the supervision of the Director-General or her delegate for a period of twelve months or such lesser period as the person delegated to supervise you considers appropriate; and you obey all reasonable directions of a person delegated to supervise you, particularly in relation to alcohol and other drug use, treatment and counselling, but also in relation to relationship issues, anger management and mental health, including any directions to attend treatment and counselling as may be considered appropriate;

(b) A condition that you perform 80 hours of community service work within twelve months.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Respondent: ACT Director of Public Prosecutions