R v Baldini

5. Mr Baldini be required to sign an undertaking under the Crimes (Sentence Administration) Act 2005 (ACT) to comply with the offender's good behaviour obligations for a period of three years, with the following conditions:

(a) a probation condition that he be under the supervision of the Director-General or her delegate for a period of eighteen months, or such lesser period as is deemed appropriate by the person delegated to supervise him, and obey all reasonable directions of the person delegated to supervise him;

(b) that he perform three hundred hours of community service work within two years; and

(c) that he submit to monitoring by the Court Alcohol and Drug Assessment Service (CADAS) for a period of twelve months and comply with any reasonable directions of a CADAS officer about alcohol and drug treatment or counselling.

1. On 22 August 2013, having pleaded guilty in the Magistrates Court, Mr Baldini was committed for sentence to this Court. He appeared before me on 12 November 2013, when I made a deferred sentence order. See R v Baldini [2013] ACTSC 281.

2. In my remarks on sentence, I set out the facts of the two charges to which he had pleaded guilty, namely aggravated burglary and assault occasioning actual bodily harm. I do not need to repeat them and I rely on what I there said. In brief terms, Mr Baldini and two co-offenders entered the victim's residence to find drugs and they assaulted him seriously. The circumstance of aggravation was that Mr Baldini was in company. That rendered the victim virtually helpless in the face of the home invasion.

3. Aggravated burglary is an offence under s 312 of the Criminal Code 2002 (ACT) and attracts a maximum penalty of 2,000 penalty units (that is, at the time, a fine of $220,000), or imprisonment for twenty years, or both. Assault occasioning actual bodily harm is an offence under s 24 of the Crimes Act 1900 (ACT) and attracts a maximum penalty of five years imprisonment.

4. Both offences are serious, but clearly aggravated burglary is an extremely serious offence which ordinarily will result in imprisonment. In this case, I must be careful to recognise the overlap of elements in the offences for the assault was the purpose of the burglary.

5. In this case, there is some difference between the position of Mr Baldini and Mr Wallis, a co-offender, who was charged with aggravated robbery. I set out, in my remarks on sentence (at [9]-[16]), Mr Baldini's subjective circumstances and I take them into account. Of particular relevance was the fact that he has been employed and remains employed and he has only two minor traffic matters on his criminal record. These traffic matters have no relevance to this sentence. As part of the deferred sentence order, I required him to be subject to supervision of the Director-General or her delegate and a bail progress report received by me shows that his attendance has been satisfactory; he attended nine scheduled appointments and engaged well with the supervision process.

6. He remains employed and his employer has advised ACT Corrective Services that Mr Baldini has resided with him in his stable accommodation since relocating to Canberra in November 2003. I had a letter from his employer, which confirms that and says that he is "a valued member of my company as I rely on him to make many decisions on behalf of our company."

7. During the supervision, Mr Baldini was subject to urinalysis. Five tests were completed, four of which returned negative results. The test completed on 11 April 2014, however, returned a positive result for codeine and Mr Baldini explained that he had used "over-the-counter" pain medication during the period.

8. I also had a helpful report from the Court Alcohol and Drug Assessment Service (CADAS). It provided a helpful background to Mr Baldini explaining why the relationship with his father, who was physically violent, is now so limited. I was impressed with the report that concluded:

Mr Baldini presented with insight and awareness into his current situation. He demonstrated ability to reflect on problems and difficulties confronting him and triggers for his drug use. He stated he would be willing to engage with counselling treatment to assist him to address his difficulties related to drug use and assist him to maintain abstinence and also his employment.

9. I had details of his alcohol and drug history, but do not need to set them out here. He currently consumes alcohol about every second weekend. He does appear to consume a significant amount of alcohol, but he claims that it does not amount to problematic use. He has maintained abstinence from cannabis and amphetamines for nearly a year and he has indicated that he is willing to engage in counselling treatment, which is recommended by CADAS. A referral has been made for counselling to the ACT Health Alcohol and Drug Service. Unfortunately, no doubt for government restrictive constraints, there is a waiting list of two months, but CADAS is able to provide case management support while he remains on the list.

10. The offences are, of course, serious but Mr Baldini was, at the time of the offence, twenty years old and this is still relevant for sentencing, particularly in the circumstances where he has no relevant prior convictions. When making the deferred sentence order I said (at [41]):

I am obliged, in a deferred sentence order, to say what I am likely to do in general terms. I am not binding myself absolutely, but you are entitled to know what I am likely to do. The offences are very serious and I have made it crystal clear in what I have said. That means that I think they are worth between two years and two years and six months in jail.

I am not going to send you to jail now and I am not going to send you to jail then if you behave yourself but I do think they are so serious that some periodic detention is appropriate and that depends on how well you do and what the result is between three and six months. If, however, you do not take this opportunity and you blow it, then something between two years and two years and six months in full-time custody with a non-parole period would be appropriate.

12. It is now clear that periodic detention will mean the end of Mr Baldini's employment. That cannot be of benefit to him, but it also cannot be of benefit to the community which has an interest in him remaining in employment, a very significant factor which contra indicates criminal activity. It leaves me in somewhat of a quandary for it is important that the deferred sentence order regime is not undermined by giving lesser or different penalties, simply because of the passage of time or different approaches to sentencing. However, it is accepted that the interests of the community are benefited by rehabilitation and that is underpinned by matters such as employment.

13. Thus, I can give some recognition to the elements of general deterrence, denunciation and punishment by, instead of imposing a period of periodic detention, making a significant community service order condition to the good behaviour order that I would have imposed, in any event.

14. I am satisfied that Mr Baldini has taken the opportunity I have given him. He has ceased illicit drug use. I am cautiously concerned about his alcohol use, but it seems limited, though, depending on the precise amount he consumes, possibly binge drinking fortnightly. That may need to be addressed in the counselling that I am going to recommend. His alcohol use, however, has not been a source of particular concern at this stage.

1. I confirm the convictions for aggravated burglary and assault occasioning actual bodily harm on 20 July 2012, both convictions entered on 12 November 2013.

2. For the offence of aggravated burglary I sentence you to two years' imprisonment to commence today. Had you not pleaded guilty I would have sentenced you to two years and nine months' imprisonment.

3. For the offence of assault occasioning actual bodily harm I sentence you to eighteen months' imprisonment to commence on 30 April 2015; that is, to be cumulative as to six months on the sentence for aggravated burglary. Had you not pleaded guilty I would have sentenced you to two years' imprisonment, to be cumulative at least as to eight months on the sentence for aggravated burglary.

4. I suspend the sentence from today for a period of three years.

5. I required you to sign an undertaking under the Crimes (Sentence Administration) Act 2005 (ACT) to comply with the offender's good behaviour obligations for a period of three years with the following conditions:

(a) a probation condition that you be under the supervision of the Director General or her delegate for a period of eighteen months, or such lesser period as is deemed appropriate by the person delegated to supervise you and obey all reasonable directions of the person delegated to supervise you;

(b) that you perform three hundred hours of community service work within two years; and

(c) that you submit to monitoring by the Court Alcohol and Drug Assessment Service (CADAS) for a period of twelve months and comply with any reasonable directions of a CADAS officer about alcohol and drug treatment or counselling.

16. [His Honour then spoke directly to Mr Baldini]

17. Mr Baldini, that is the formal order I have made. Basically I have said that, as I indicated, I think a total of two years and six months is appropriate imprisonment and you have been sentenced to imprisonment, but I do not require you to serve any of that period in full-time or, indeed, in part-time custody on this occasion in the circumstances. I have suspended the sentence for three years. That means that you are still under sentence for a period of three years and, in particular, if you commit any further offences that are punishable by imprisonment you can be brought back before me and resentenced and that resentencing can include sending you to prison for, in effect, these offences.

18. I have made three conditions to the good behaviour order. The first is a probation condition and you have already been under supervision so you know what that means. That is for a period of eighteen months. I expect that that will wind down and the person delegated to supervise you may well find that there is no point in continuing to supervise you. But it is an option, not only for control, but also if you get into difficulties, if things fall apart, and things do fall apart - who knows what will happen in the future - there is someone there who has access to a knowledge about services that can be available to you to which you can refer and get some assistance and they will give you directions. If you do not obey any directions that you are given then, again, you can be brought back before me and I can resentence you, including the possibility of sending you to jail.

19. I have required you to perform three hundred hours of community service work. That is unpaid work for the community and in a sense that is your repayment to the community for the offences that you have committed. You should talk to your probation officer about that and they will arrange that for you. If you do not complete that work, that is a breach of the order and you can be brought back before me, and again I can re-sentence you.

20. Finally, you have been working with CADAS and that has been good. They are a good bunch of people at CADAS and they will assist you to make sure that your abstinence is permanent and also perhaps to talk about your alcohol consumption. I do not know enough about that, but that is always a risk because it is a legal substance and I am not going to stop you from drinking alcohol, but there is always risk there. That is for a period of twelve months. They can manage you and get you into counselling and then continue to manage that, but it is a matter really for you.

21. You are at a turning point of your life. You have fallen dramatically. The offences that you have committed are very serious offences and ordinarily would result in a period of full-time custody. I am releasing you into the community, but there are still the things hanging over you that I have mentioned. I expect that Mr O'Brien is right; he is a canny operator and has a good nose for these things and he says that you will not be inside a criminal court again. I hope that is true. The work that you are doing is valuable to the community and I commend you for that. It is good work and I hope that you continue to contribute that to the community and I hope that in the future the criminal courts will not see you again.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Crown: ACT Director of Public Prosecutions