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[2016] ACTSC 390
Supreme Court of the ACT
2016-12-23
Refshauge ACJ
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - trial by jury - guilty of recklessly inflicting grievous bodily - assessment of the objective seriousness of the offence - recognition of the harm done to the victim - consideration of previous good character of offender - general deterrence - assessment for an Intensive Corrections Order
Crimes Act 1900 (ACT), s 20
Crimes (Sentencing) Act 2005 (ACT), ss 33(1)(za), 7, 78
Sentencing Act 1991 (Vic)
Cheung v The Queen [2001] HCA 67; 209 CLR 1
Fusimalohi v The Queen [2012] ACTCA 49
Goundar v Goddard [2010] ACTSC 56; (2010) 240 FLR 176
Oliver (1980) 7 A Crim R 174
R v Aniezue [2016] ACTSC 82
R v Amosa [2015] ACTSC 34
R v Bilal [2014] ACTSC 74
R v Booth [2004] ACTCA 21
R v Campbell [2010] ACTCA 20
R v Carmody [2016] ACTSC 382
R v EL [2016] ACTSC 241
R v Martin [2013] ACTSC 280
R v Ngerengere (No 3) [2016] ACTSC 299
R v Shevlin [2013] ACTSC 88
R v Thawer [2009] NSWCCA 158
R v Torbett [2015] ACTSC 331
R v Wagle (No 2) [2014] ACTSC 160
R v Williams [2015] ACTSC 406
R v Wolter (No 3) [2015] ACTSC 321
Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246
The Queen v Kilic [2016] HCA 48
1. In R v Aniezue [2016] ACTSC 82, I mentioned that the Internet has brought great benefits and prosperity to society but also has the capacity for the creation of other problems. So with the motor vehicle. The motor vehicle has significantly improved the economic and social life of the community. Motor vehicle collisions, however, cause death and serious injury and the use of motor vehicles can facilitate serious crime.
2. On 13 October 2016, the accused, David Ian Bartlett, was found not guilty of intentionally inflicting grievous bodily harm but was found guilty of the alternative charge of recklessly inflicting grievous bodily harm on the victim when he drove a motor vehicle that collided with the victim.
4. Recklessly inflicting grievous bodily harm is an offence under s 20 of the Crimes Act 1900 (ACT), for which the maximum penalty is imprisonment for 13 years.
5. It is, therefore, judged by the maximum penalty, an offence that the Court is required to regard as a serious one: Oliver (1980) 7 A Crim R 174 at 176, 178. As the Court of Appeal said in R v Campbell [2010] ACTCA 20 at [60]:
The community requires the courts to do what they can to protect against violence that puts its members at risk or serious injury by sentences that denounce, deter, and punish.
6. In this case, the finding of guilt was made by a jury. It is, therefore, necessary for me to find the facts from the evidence given at the trial. The facts that I must find must, of course, be consistent with the verdict of the jury. Where facts aggravate the offence, they must be found beyond reasonable doubt. Where Mr Bartlett relies on mitigatory facts, I need to find them on the balance of probabilities.
7. These principles have been set out and explained in Cheung v The Queen [2001] HCA 67; 209 CLR 1 at 12-14; [13]- [16]. I shall approach my task in this way.
8. On 22 May 2015, Mr Bartlett attended at a used car business in Newcastle Street, Fyshwick. Mr Bartlett was there to serve a summons on an employee in relation to the enforcement of a judgment debt that he had obtained in his favour in the ACT Magistrates Court.
9. It had, apparently, been somewhat of a saga as the enforcement debtor seemed to have been evading service.
10. Having served the summons, Mr Bartlett walked back to his car and, instead of driving away, drove past the used car business and then turned around the roundabout intersecting Newcastle Street, Wollongong Street, and Molonglo Mall, and parked opposite the used car business on the other side of the road. He yelled out abusive words in the direction of the business.
11. As he was doing this, the victim was crossing the road. Mr Bartlett then proceeded to drive his vehicle away. He says that he was concerned about his safety as the victim was coming from the direction of the used car business towards which he had been yelling. He had had an angry interaction with the victim about a month previously.
12. At the time, in addition to provision for parallel parking at the side of the road, there were in Newcastle Street two lanes for road traffic in the direction Mr Bartlett was travelling.
13. When driving, he pulled out sharply moving across the first outer lane into the lane nearest the middle of the road and the median strip. About nine metres from where he left the kerb, he collided with the victim who suffered serious injuries. The time taken to drive that distance from a stationary position to 30 or 40 kilometres per hour would be a matter of seconds.
14. Mr Bartlett then continued to drive away and drove directly to Woden Police Station where he made a complaint of the incident. He admitted shouting from his car when parked on the side of the road opposite to the used car business and accelerating away from the kerb.
15. He said that the victim, whom he described as having previously assaulted and threatened him at the business, had raced across the road and lunged at him. While the verdict of the jury rejected his explanation of self-defence, it seems likely to me that it did so because the response Mr Bartlett made to the perceived threat was wholly disproportionate. The report to police is consistent with a concern that the victim may have been a threat to him. That is also consistent with the jury's rejection of the principal offence charged of intentionally inflicting grievous bodily harm.
16. Persons at the scene attended to the victim and an ambulance was called. The victim was taken to the Canberra Hospital Emergency Department and triaged as a category two patient.
• a compression wedge fracture of his 11th thoracic vertebrae on the left side;
• an impaction fracture of the lateral femoral condyle of his left knee;
• a minimally displaced fracture of the posterior part of the lateral tibial plateau with hemarthrosis (blood on the joint) of his left knee;
• vertebral body bony contusions of his fifth and sixth cervical vertebrae; and
18. The victim was then treated in hospital and a Zimmer Splint applied to his left knee with advice not to weight bear on his left leg for six weeks, to allow healing to occur. He was provided with a cervical Miami collar for four weeks to immobilise his neck to allow healing to occur and his left arm was placed in a sling for a week to immobilise his shoulder, also to assist with healing.
19. The victim's injuries were managed conservatively, that is, without the need for surgery.
20. The victim gave evidence that he was in hospital for about 14 days, though the Crown submitted to me that it was for six days. He described himself as "half the person I was before". He said that he could not lift his kids and still has to attend many medical appointments.
21. He was also asked about the earlier interaction with Mr Bartlett and said that he had seen him fighting with his uncle, who was the enforcement debtor against whom Mr Bartlett was pursuing the judgment debt. They were arguing on an occasion about a month before the incident. The victim had told both of them in crude terms to leave because "they were embarrassing us" and he was trying to sell cars at the time. He said that, when he approached them, Mr Bartlett and the other man were "touching each other", "they were holding each other." He denied engaging in any physical interaction with Mr Bartlett.
22. As noted above (at [4]-[5]), the maximum penalty for the offence of recklessly inflicting grievous bodily harm requires that it be regarded as a serious offence. Indeed, as I pointed out in the R v Martin [2013] ACTSC 280, there is a need to protect the community from violent conduct.
23. For an assessment of the objective seriousness of the offence, a central matter is the extent of the harm done. The Court of Appeal in the R v Campbell at [37] adopted what Howie J, with whom Giles JA and Latham J agreed, said in the R v Thawer [2009] NSWCCA 158 at [43]:
Although other factors are obviously relevant to an assessment of the seriousness of an offence of inflicting grievous bodily harm to a very significant degree the seriousness of the offence will depend upon the degree of any harm suffered by the victim.
24. In this case, I have set out above (at [17]) the injuries sustained by the victim. These were serious and I do not want to suggest otherwise. Perhaps, fortunately, they were not as serious as many injuries that have been the subject of this charge. See, for example, the analysis of some cases I have made in the R v Carmody [2016] ACTSC 382 at [123].
25. It needs to be accepted that any injuries sufficient to justify a conviction for this offence will be really serious. Thus, one is not comparing, for the purpose of relativity amongst the versions of this offence, lesser versions of harm; all the harm constituting this offence will be really serious harm.
26. Nevertheless, the injuries suffered are serious and significantly more than the minimum needed to constitute really serious harm which, of course, is the test for grievous bodily harm - an element of the offence itself. See R v Shevlin [2013] ACTSC 88 at [30]- [31].
27. It is also important to have regard to the circumstances of the offending and the behaviour involved. See R v EL [2016] ACTSC 241 at [21] and R v Torbett [2015] ACTSC 331 at [37].
28. This is sometimes described as "the conduct and moral culpability" as in R v Amosa [2015] ACTSC 34 at [21] and R v Williams [2015] ACTSC 406 at [13]. While culpability is important, I reject the suggestion that it should be described as "moral culpability". The criminal courts are not courts of morality but courts of law: Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246 at 253. A significant problem for such a consideration would be the question of whose morality is to be enforced. Apart from that, the rule of law requires that the law be applied not some other view external to the law. Certainly culpability, perhaps called personal culpability or criminal culpability, is relevant.
29. Further, the degree of recklessness is also relevant. See R v Booth [2004] ACTCA 21 at [10] and R v Bilal [2014] ACTSC 74 at [15]. This is, perhaps, related to the conduct and the degree of culpability of the offence.
30. In this case, the actual period of recklessness which caused the injuries was of short duration and it was not a protracted period of recklessness.
31. The force with which Mr Bartlett's vehicle came into contact with the victim, however, was sufficient to knock him to the ground and cause the injuries described.
32. It must be accepted that the use of a motor vehicle runs a significant risk, if colliding with a person, of causing significant injuries.
33. Planning or premeditation can also be relevant. See R v Torbett at [37]. It can be challenging to find any planning in a reckless offence, but if found, would be relevant. There is none here.
34. When the victim arrived at the hospital, he was identified under the Australian National Triage Scale as Category 2. This is the category where the condition is imminently
life-threatening, or requiring important time-critical treatment, or in the case of very severe pain. The victim was obviously in great pain.
35. There were, as noted above (at [20]), obviously ongoing problems suffered by the victim and the permanent nature of disabilities is relevant to an assessment of the harm. This is referred to further when I discuss the Victim Impact Statement.
36. The Crown submitted that Mr Bartlett had the opportunity to leave the scene, having served the summons, and that his failure to do so aggravated the offence. There is no doubt that, had he left the area, the offence would not have occurred.
37. He said that he drove off as he did because he was acting in self-defence. The verdict of the jury clearly rejected that.
38. The Crown then submitted that, because he did not leave, this aggravates the offence.
39. Had the jury returned a verdict of guilty on the offence of intentionally inflicting grievous bodily harm, that may be more significant. Given the jury did reject that offence, it is difficult to see how Mr Bartlett's behaviour prior to the commission of the offence did aggravate the offence. Whether it was reckless of him to have stopped the car outside the used car business does not seem to me to aggravate the degree of recklessness in the commission of the offence, that is constituted by the way in which he drove away that is relevant to culpability.
40. The Crown case was that the victim was oblivious of Mr Bartlett and had been crossing the road for the purpose of accessing a motor vehicle that belonged to his employer and which was parked in the parking area of the service station. Thus, the Crown case was that there was no threat to Mr Bartlett from the victim.
41. Assuming, as I do, that Mr Bartlett perceived the victim as a threat, his recklessness constituted by the manner of his driving did not seem to me to be affected by the fact that he had returned to the car yard and not left immediately.
42. Nevertheless, by doing what he did, he had the capacity to aggravate and incite the people in the used car business and his returning and abusing those in the car yard is relevant to the totality of the circumstances for which I must sentence him. In my view, he was more culpable as a result of this conduct, though it did not, for example, aggravate the recklessness of which the jury has found him guilty.
43. I had a Pre-Sentence Report, a number of character references and Mr Bartlett gave evidence. From this evidence and the submissions of counsel, I can make the following findings.
44. Mr Bartlett is 54 years old. He was born in Sydney, the fourth of six children. He had an unremarkable upbringing and maintains a supportive relationship with his siblings and their families. His father died suddenly in 1995 and his mother in 2014, following two years of illness when Mr Bartlett and two of his siblings provided her with full-time care. He has a good relationship with his nieces and nephews.
45. Mr Bartlett completed Year 12 at school where he was a high achiever, being Dux of Year 10. He then suffered a severe assault to his head, now known as a "one-punch assault", causing him life-threatening injuries. It had a profound effect on his personality and changed his life; it is said to have reduced his prospects of outstanding achievement. Nevertheless, he attended university where he graduated with an Economics Degree in 1989 and he continued studying to a post-graduate level earning a Graduate Diploma in Public Law.
46. He was employed as a Commonwealth Public Servant between 1980 and 1985 and again between 1993 and 2008. He achieved some seniority in his employment. In 2008, he accepted a redundancy package and has not returned to full-time employment.
47. He supplements his superannuation with work picking cherries seasonally in Young and his superannuation is supplemented at other times with Centrelink benefits. I had a reference from his employer, at the cherry-picking business, who attests to his good work and positive influence on other workers. He can provide some calming influence in a hotly competitive environment.
48. He has an interest in poetry, perhaps instilled by his well-read and erudite mother. He became particularly interested in Australian bush poetry, especially the works of Banjo Patterson. Initially, he recited poems, including 25 poems he knows off by heart, to his friends but then offered to perform at various retirement villages in Canberra for the benefit of the elderly residents. He has joined the Queanbeyan Bush Poetry Society and performed on ABC radio.
49. After finishing full-time employment he spent a period travelling through Indo-China, learning the culture and geography. He has become interested in supporting a disadvantaged village in Laos.
50. It was suggested, correctly, to Mr Bartlett in cross-examination, that the Laos Project was not mentioned in the Pre-Sentence Report or in the references that were tendered on his behalf. That is true. It is not clear to me what the import of that was. There is, perhaps, no obvious heading in the Pre-Sentence Report under which it would be appropriate to mention that. It was not expressly suggested that it was a recent invention or untrue. In any event, it seemed to me to be a future idea rather than a presently formed project. Even if only that, it was consistent with his character as disclosed in the various references.
51. I am satisfied that Mr Bartlett has intended to engage in that activity and that he can take some credit from that.
52. Mr Bartlett has had one significant relationship which lasted for about 10 years, but, when it ended, he has remained on friendly and supportive terms with his former partner. He has no children.
53. Since his departure from full-time employment, he has lived a rather transient and solitary life, though with a relatively wide circle of friends and with ongoing contact with his family.
54. He presently lives in the former family home with his sister, who now owns the house, and his niece. He has a caravan in which he travels often.
55. He has a modest income, a small credit card debt and no significant assets or savings.
56. Mr Bartlett first consumed alcohol at age 14 when attending the wedding of one of his brothers. He used it regularly between the ages of 18 and 23 years but has not used it problematically since, restricting his consumption to one or two glasses of wine with meals about twice a week.
58. Mr Bartlett's physical health is described as "reasonable". He appears to have recovered well, at least physically, from the earlier life-threatening injury he received as a school boy. He reports no mental health concerns, though he had an unsatisfactory consultation with a psychologist following his redundancy.
59. Mr Bartlett has four convictions for traffic offences of a relatively minor kind. Indeed, they appear to have been of the kind which would now be likely to be dealt with by traffic infringement notices. Since the most recent was committed in 1984, it may be that they pre-dated the introduction of those notices. Nevertheless, the Crown properly submitted that they were of no consequence to this sentencing.
60. I had, from a wide range of people, 10 character references, which were admitted into evidence on his behalf. Most of the referees had known Mr Bartlett for many years. They came from various walks of life, some with significant and responsible employment positions.
61. They uniformly described the incident as out of character. He was described as a kind, honest, reliable, compassionate, decent citizen. A number of the referees referred to acts of kindness and support that he had provided to them or their relatives or friends in circumstances of significant illness or disadvantage. He provided assistance in an appreciated and respectful way and obviously has a caring nature, being a valuable friend to many.
62. His plea of not guilty deprives him of the expression of remorse that a plea of guilty usually evidences. As with most things related to human beings, the question of remorse is not entirely straightforward.
63. He is, of course, denied the statutory discount for the plea of guilty and, while he did make admissions at trial, they were not such as to justify much amelioration to the sentence on the account of him facilitating the course of justice.
64. He did, however, express concern about the injuries received by the victim and, indeed, prior to the commencement of these proceedings, did inquire of the victim's aunt as to the progress of his injuries. He had a reference from the victim's aunt also who said of these inquiries that Mr Bartlett "was genuinely worried about [the victim]". While the value of that as remorse (which I have discussed in Fusimalohi v The Queen [2012] ACTCA 49 at [27]- [44]), is perhaps questionable in all the circumstances, it is consistent with Mr Bartlett's character as described in the references I had.
65. Some of the references referred to his remorse. Apart from his concern for the victim and his injuries, which I assess as genuine, that may amount, however, to no more than regret that he committed actions that he now finds have resulted in him being found guilty of this serious offence.
66. The victim provided a Victim Impact Statement. As so often, it provides sober reading. While courts do appreciate in general terms the effect of crimes on victims, it is helpful to understand the full extent of such events on the lives of those victims.
67. A single incident of short duration can have long-lasting and severe effects. Indeed, Mr Bartlett himself has experienced that.
68. As a result of the injuries he suffered, the victim was deprived of the playful interaction that he would otherwise have been able to enjoy with his children, including camping, bike riding, swimming, go-karting, and attending amusement parks.
69. It had also affected his relationships, though he is under the care of a psychologist and is trying to overcome the depression he now feels.
70. It is to be hoped and the Court expresses its wish that he will recover if at all possible.
71. He has had financial stringencies also, but has received workers' compensation payments and has commenced common law proceedings, which are likely to ameliorate, but in the future, the financial hardship he is currently suffering.
72. He is unable to work in the same way that he did before as he cannot get in and out of cars easily or stand on his feet all day.
73. His relationship with his partner has been seriously affected and this has an upsetting consequence for him. He cannot participate in some of the usual leisure activities that he used to enjoy.
74. These serious effects need to be recognised in the sentence that I shall impose.
75. Section 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT) mandates that, so far as it knows it, a sentencing court shall have regard to sentencing practice. The High Court has recently commented on this obligation so far as the Sentencing Act 1991 (Vic) is concerned in The Queen v Kilic [2016] HCA 48.
76. It there pointed out that this will include, where appropriate, the proper information about sentencing matters for the offence, though those may change over time. Such information will often provide a relevant "yardstick" by which a sentencing court can achieve that important value in sentencing of consistency and also in the application of relevant sentencing principles.
77. It will not, as has been consistently recognised, fix the boundaries within which further sentences must be passed, rather than informing the broad range of sentences that will ensure consistency in sentencing and a uniform application or principle.
78. There are, regrettably, many cases in this jurisdiction of sentences for this offence. I have recently, in R v Carmody at [120]-[130], explored a number of them and I do not need to repeat what I there said. I note, however, that there were, of course, a wide range of circumstances involved and a wide range of harm caused.
79. The range of sentences was broad, but in all cases it involved a sentence of imprisonment, not unexpected for an offence that involves the infliction of really serious harm, but some sentences of imprisonment were fully suspended and some partially suspended.
80. I also had a table from the ACT Sentencing Database which showed that, of the 22 sentences recorded there, 59 per cent were sentences of full-time imprisonment, 14 per cent were partially suspended and 23 per cent were fully suspended. I was informed that all the offenders in that group were under the age of 40 years.
81. I was referred particularly to two decisions where the harm was inflicted by a motor vehicle.
82. In R v Booth, the Court of Appeal upheld a sentence of six years imprisonment for the offence. At the time, it must be noted that the offence carried a maximum penalty of 10 years, a degree of leniency on which the Court commented. As noted above (at [4]), the current maximum penalty is 13 years imprisonment, not a very significant increase, but an increase nevertheless, which must be taken into account.
83. In that case, the offender drove his motor vehicle towards the victim, colliding with him and causing his body to be thrown some 11 metres from the point of collision. He then made a U-turn and drove back to where the victim lay unconscious and, at the last moment, swerved away from the body.
84. The victim suffered an extremely severe traumatic brain injury as well as injuries to his left leg. He remained in a coma for over a month, treated by a tracheostomy tube and fed by a naso-gastric tube. He was subsequently transferred to the Brain Injury Rehabilitation Unit at Liverpool Hospital and, at the time of sentencing, required a physical restraint to prevent him from falling.
85. In this case, the degree of recklessness, the force of the impact and the severity of the injuries made this case much more serious than, in the circumstances, the offence committed by Mr Bartlett.
86. I also note there the offender in that case was 19 years old at the time of the offence. He pleaded guilty. He had lived a chaotic early life. He had what were described as "numerous prior records for assault, property and driving offences".
87. Similarly, R v Bilal was a more serious case. The offender was a taxi driver, who had argued with his passenger in the ride from Dickson to Mackellar. He discharged his passenger, the victim, at the destination and then received a notification of another engagement, executed a U-turn and drove back to where the victim, quite intoxicated, was on the road, a little wobbly on his feet. The offender slowed the taxi as he approached where the victim was and then drove towards him on the wrong side of the road.
88. The offender collided with the victim, knocking him with the front left wheel where he became wedged under the front wheel arch. He was dragged along for about 52 metres. The offender applied extra throttle and dislodged the victim, driving over him as he left the scene.
89. The victim suffered extensive and horrific injuries which were life-threatening, including severe injuries to his right leg, his pelvis, and his back. He suffered injuries to his left leg and serious bruising and abrasions. He required several operations and was transferred to the Concord Hospital Burns Unit for management of the extensive abrasions to his body. He suffered permanent scarring, ongoing pain and discomfort, and the possible loss of future mobility and neurological feeling.
90. The offender was 26 at the time of the offence, but had no prior convictions. He pleaded guilty. He had a stable upbringing and a supportive family. He was sentenced to six years imprisonment.
91. Again, the level of recklessness and the harm caused were far more serious in that case than the offence committed by Mr Bartlett.
92. I have regard to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act. In this case, general deterrence is of significant importance. The risk to members of the community from the reckless use of motor vehicles, which have been described as a lethal weapon, especially if misused as, for example, I did in R v Wolter (No 3) [2015] ACTSC 321 at [57], is simply too great not to give general deterrence significant weight.
93. As I observed in R v Wagle (No 2) [2014] ACTSC 160 at [22], offences of personal violence require the Court to have particular regard to general and specific deterrence.
94. In this case, however, I do not consider that specific deterrence plays a real part. Mr Bartlett is entitled to rely on his 32 years of unblemished life and his relative good character since before then. Given his current nomadic habits, the absence of further traffic convictions and the testimonials to his non-violent character leads me to conclude that he is unlikely to re-offend. The community does not need protecting from Mr Bartlett.
95. I must recognise the harm done to the victim, who has clearly suffered seriously. While I am of the view that his financial problems are not likely to be permanent, the fact is that he has been suffering them as well, of course, as the more significant personal trauma of his relationship with his partner and their children. His injuries were painful and severe and will leave him with continuing disabilities.
96. I have regard to Mr Bartlett's good character and, indeed, his positive good character, the nature of which I have described in Goundar v Goddard [2010] ACTSC 56; (2010) 240 FLR 176 at 184; [45]- [47].
97. I note that Mr Bartlett has been assessed as suitable for a community service work condition to a Good Behaviour Order.
98. Having carefully considered the seriousness of the offence and the subjective circumstances of Mr Bartlett, I am satisfied that no other sentence than a sentence of imprisonment is appropriate. I note that he has not spent any time in custody in relation to this offence.
99. Ordinarily, that sentence would be served at least partly in full-time custody. In my view, a sentence of three years and six months would be appropriate.
100. Given, however, Mr Bartlett's good character, I conclude that he should be considered for service of the sentence by an Intensive Correction Order. I have described that sentence in R v Ngerengere (No 3) [2016] ACTSC 299 at [17]- [27]. It is, as I pointed out, in R v Carmody at [160], a sentence with deterrent effect.
1. I convict you of recklessly inflicting grievous bodily harm on another person on 22 May 2015.
2. I adjourn the sentence to 9:30am on Thursday 2 March 2017.
3. I direct the Director-General to assess your suitability under s 78 of the Crimes (Sentencing) Act 2005 (ACT) for an Intensive Correction Order.
4. I continue your bail with the following additional conditions:
(a) that you report to ACT Corrective Services, Level 1, 249 London Circuit, Canberra City by 4:00pm today and make arrangements for an assessment of your suitability for an Intensive Correction Order;
(b) that you co-operate with ACT Corrective Services in the assessment for an Intensive Correction Order and obey all reasonable requirements made of you for that assessment; and
(c) that you not travel outside of Australia between 23 December 2016 and 2 March 2017.
5. I dismiss the back-up charge of culpable driving of a motor vehicle.
103. Mr Bartlett, no doubt your very experienced and competent counsel will explain to you that sentence but what I have said is that had you not had your good character, principally, that I would have sentenced you to three years and six months imprisonment, some or most of that, to have been served in full-time custody. However, there is an alternative to that which, in the circumstances, I think, is appropriate and that is called an Intensive Corrections Order. That requires you to be under the supervision of ACT Corrective Services for a period of time, most of it quite intensive and it does include obligations for you to engage in other activities, including, for example, performing community service work or undertaking courses and programs, and making contact with the people who supervise you.
104. If you fail to undertake that work then you can be imprisoned for periods of time during the period of that Intensive Correction Order. If that does not work, then that order can be cancelled and you would be returned to Court and you could be imprisoned for some or all of the period of the term. I have suggested adjourning to 2 March 2017 and I will speak to your counsel and the Crown in a moment to see whether that is a suitable date, but that is the period of time that is approximately necessary for an assessment to be made as to whether you are suitable for such an order.
105. You will have to engage with Corrective Services for that purpose and I suggest that you go there straight away and tell them that you have been directed to be assessed for an Intensive Correction Order. They will take your details and make the necessary arrangements.
106. That assessment will take about eight weeks and then you come back to the Court and if you are assessed as suitable, then I can make the Intensive Correction Order. If you are not assessed as suitable, then I will have to sentence you and that will include a term of imprisonment, but how it is specifically served will be a matter for consideration having regard to what is in the Intensive Correction Order Assessment Report.
I certify that the preceding one hundred and six [106] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.
R
Bartlett [2016] ACTSC 390
(2010) 240 FLR 176
(1985) 1 NSWLR 246