R v Calvert [2014] ACTSC 41

4. The sentence be suspended from today for a period of two years.

5. Geoffrey Calvert be required to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for two years with the following conditions:

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

(c) that he submit himself to breath analysis when reasonably required by the person delegated to supervise you.

(d) that he perform 150 hours of community service work within twelve months

(e) Mr Calvert pay a fine of $800 within twelve months.

1. One of the good things in life is to share a beer or two with a mate, of that there can be no doubt. Unfortunately, as with many things, that stops being a good thing when the drinking of alcohol is abused. Alcohol affected drivers cause serious injury to other road users and themselves, even death. Young men, especially, who abuse alcohol can become aggressive and engage in violence which can cause serious injury, even death. Much domestic violence which can cause serious injury, even death, is accompanied by the abuse of alcohol.

2. Now appearing before me is Geoffrey Calvert, who has breached a good behaviour order I made on 30 July 2010, when I suspended a sentence of imprisonment imposed for the offence of assault occasioning actual bodily harm and damaging property. He committed further offences on 15 December 2012. Both the original offences and the subsequent breaching offences were committed when Mr Calvert was affected by alcohol. The original offences for which I dealt with Mr Calvert involved him punching a taxi driver a number of times such that the taxi driver suffered bleeding lips, swelling around the lips and bruises and minor lacerations about his head, face and torso.

3. He also kicked the taxi and the rear bumper, causing damage. I described the attack on the taxi driver as "brutal, severe, unprovoked and sustained, committed on a vulnerable class of persons". The damage to property was "gratuitous, unprovoked and unnecessary, but not of a particularly high order". On 30 July 2010, I sentenced Mr Calvert to fifteen months' imprisonment for the assault and four months' imprisonment concurrent with a fine of $500. I set the first six months of the term of imprisonment to be served by periodic detention and then suspended the balance of the sentence, making a good behaviour for two years, from 30 January 2011, that is to end on 29 January 2013.

4. The fresh offences were committed on 15 December 2012, a little over six weeks before the expiry of the two year good behaviour order. The offences occurred after Mr Calvert had drunk four beers with a friend over several hours. He then drove in an aggressive and unsafe manner out of the car park where his vehicle had been parked, revving the engine and spinning the vehicle almost 180 degrees. He drove away at speed, narrowly avoiding a collision with an oncoming car. He stopped at a red light, but on it turning green accelerated away, almost colliding with the car that was in front of him.

5. Police activated the emergency lights on their vehicle and then the emergency siren, but Mr Calvert failed to stop and a pursuit commenced. Mr Calvert said that he was conscious that he was subject to a good behaviour order and panicked because he was worried he may have had a prescribed concentration of alcohol in his blood. It may have been the alcohol affecting his judgement, but he should have realised that the dangerous driving and police pursuit were far more serious offences than a drink driving charge would be so far as the bond was concerned.

6. In any event, Mr Calvert drove at speeds of up to one hundred and twenty kilometres per hour through roads with a maximum speed limit of eighty kilometres per hour. At one stage, he braked heavily causing the pursuing police to brake very severely and to swerve to avoid a collision. He ultimately drove into New South Wales, where he stopped the car. That was bad enough, but when the police approached he jumped onto the bonnet of the police vehicle punching the roof with his fists with such force that he created four dents in the body of the vehicle. Mr Calvert then behaved very aggressively, apparently enraged, and so police drove at him knocking him to the ground, following which he was arrested.

7. As a result, he was charged in New South Wales with resisting arrest and fined $500. In the ACT, he was charged with driving in a way that was dangerous. On 10 October 2013, he was sentenced and a good behaviour for eighteen months was made with a probation condition for twelve months, or such lesser period as is deemed appropriate, and an order that he perform 104 hours of community service work. He has almost completed the community service work. Mr Calvert has acknowledged the breach and I now must consider how to deal with the matter. Because the good behaviour order was made when a sentence of imprisonment was suspended, s 110 of the Crimes (Sentence Administration) Act (the Sentence Administration Act) applies.

8. As I am satisfied that Mr Calvert has breached the obligations under the order, namely, that he has committed an offence the Territory law that is punishable by imprisonment (see s 86(1)(a)(i) of the Sentence Administration Act), I must cancel the good behaviour order and either impose the suspended sentence I made or resentence Mr Calvert. Ms Jamieson-Williams, who appeared for the prosecution, submitted that I should impose the suspended sentence or at least sentence Mr Calvert to a period of custody. She submitted that the original offence was a very serious one and the suspension of the original sentence was lenient, which required Mr Calvert scrupulously to comply with the conditions of the good behaviour order.

9. She submitted that the evidence showed that while the offence was of a different type, there were some similar features, in particular, the influence of alcohol and the fact that anger played such a part in both. She pointed to the fact that Mr Calvert was well aware of the fact that he was subject to a good behaviour which was, it appears, what had caused him to flee. She referred to what I said in Saga v Reid [2010] ACTSC 59 at [99]- [100] about the integrity of such orders and the need to protect that by appropriately activating the sentence on breach. I had a copy of the Pre-Sentence Report tendered to the learned Magistrate who sentenced Mr Calvert for the fresh offences.

10. I do not need to summarise it, as much of the subjective circumstances of Mr Calvert are referred to in my remarks on sentence: R v Calvert (Unreported, ACT Supreme Court, Refshauge J, 30 July 2010). I rely on that material.

11. Suffice it to say, Mr Calvert had a stable, loving and uneventful childhood but suffered some assaults in his teenage years, one of which led to him suffering a broken jaw. He was subsequently counselled for anxiety and anger issues as well as to manage the attention deficit hyperactivity disorder (ADHD), with which he had been diagnosed at age four. He is now managing that without medication but with the help of a psychologist. He completed Year 12 and a carpentry apprenticeship. After some employment in the retail and hospitality sectors, he completed his apprenticeship with a home building company for which he now subcontracts.

12. His employer describes him as "honest and committed", that he "gets on well with all trades people and supervisors within the industry and has successfully mentored several apprentices". He started drinking alcohol at eighteen and developed a pattern of binge drinking. He told the author of the Pre-Sentence Report, in 2010, that he did not think that he had a problem with alcohol, though his mother disagreed. He clearly did have such a problem and he acknowledged as much to the author of the 2013 Pre-Sentence Report. He says he last drank in about June 2013. He stated that he now realises that he "can't drink casually" and this has caused him to stop. Hopefully he will be able to keep that commitment.

13. His criminal history is growing. There is a common thread of alcohol facilitated offending which has been marked by violence offences. Clearly, he has had a problem with anger management, but the effects of alcohol and the circumstances of such drinking facilitates such offending. He has expressed a willingness to enter and complete ACT Health's Alcohol and Drug Service Control Your Drinking Program. He has been supervised previously by ACT Corrective Service and was compliant. As I noted earlier, he has successfully completed his previous periodic detention.

14. He has also almost successfully completed a community service work condition to a good behaviour order. He expressed remorse for his offending and showed insight into the risks that his behaviour potentially caused for other road users. He has a partner with whom he has been in a relationship for some 12 months, she is supportive of him and is committed to helping him manage his emotional and mental health issues without medication. He earns about $1500 per week before tax, but has business expenses of $1400 a month and car loan repayments of $900 a fortnight.

15. As I said in R v Steel (Unreported, ACT Supreme Court, Refshauge J, 29 April 2010):

It should not be assumed that suspended sentences are imposed other than where a term of imprisonment is appropriate for the offence, [but it should be assumed] that the serving of the term of imprisonment is only suspended upon compliance with the conditions of a good behaviour order, the starting point must be that the sentence should be activated.

16. In that case, however, I did not impose the sentence that had been suspended. Indeed, as I explained in Guy v Anderson [2013] ACTSC 5 at [83]- [87], there is, in this Territory, no presumption in favour of activating the suspended sentence. Relevant factors to be considered include:

(a) the nature and seriousness of any offence constituting the breach and the similarity to the original offence;

(b) the length of time for which the offender has been compliant with the good behaviour order;

(c) the steps the offender has taken towards his or her rehabilitation and his or her compliance with the conditions of the good behaviour order.

17. I am also very conscious of the important factor often referred to by the courts that the breach of a suspended sentence must be treated seriously else the sentencing option itself will be brought into disrepute, as pointed out by the court in R v Marsden (1990) 60 SASR 320 at 322. As Gray J noted, however, in Thompson v Young [2008] ACTSC 11 at [10], even if activation of the order is required it is still necessary to consider questions of periodic detention or suspension. I also add that it may also include a consideration of a non-parole period. It also may include consideration of a community service condition to a good behaviour order if the sentence is suspended.

18. I consider, however, that these may be, in fact, a re-sentence under the section. I have given this matter anxious thought. There is much validity in the submissions of Ms Jamieson-Williams. The original offence was serious, nevertheless I did impose a sentence that included a period of custodial confinement, though it was to be served by periodic detention. I accept, however, that this was a different kind of offence, but was potentially one that could have very serious consequences and one that needed to be considered seriously.

19. Mr Calvert was very fortunate that none of these serious consequences actually eventuated. I can take into account the penalties imposed by the relevant learned Magistrates who, of course, deal with such offences regularly, too regularly of course, setting a limit on the seriousness of the offences. They do not show that they were regarded by their Honours as offences of a particularly high level of seriousness. The genesis of the offences is similar, being the abuse of alcohol, but they were still different offences and clearly not as serious as the original offence. The offending comes at the very end of a relatively lengthy good behaviour order, with which it appears he has been otherwise completely compliant.

20. It seems, to me, I am not required to impose the sentence that was suspended, but I am required to re-sentence Mr Calvert and in a way that makes it clear to him that his breach of the good behaviour order in this way should be regarded and is regarded as very serious.

22. I am satisfied that you have breached your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) by committing further offences. I cancel the good behaviour order. I re-sentence you for the offences of assault occasioning actual bodily harm and damaging property.

23. For the offence of assault occasioning actual bodily harm, I sentence you to fifteen months' imprisonment to commence on 9 August 2013 to take into account the period of periodic detention you have already served.

24. For the offence of damaging property, I sentence you to four months' imprisonment to commence also on 9 August 2013. I suspend the balance of the sentence today for a period of two years. I require you to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act for two years with the following conditions:

(a) a probation condition that you be on probation under the supervision of the Director-General or her delegate for twelve months, or such lesser period as the person delegated to supervise you considers appropriate, and obey all reasonable directions of the person delegated to supervise you, including as to treatment and counselling for alcohol abuse and for your mental health issues;

(b) that you do not drink alcohol for twelve months;

(c) that you submit yourself to breath analysis when reasonably required by the person delegated to supervise you.

(d) a condition that you perform 150 hours of community service work within twelve months; and

(e) a fine of $800, to be paid within twelve months.

25. [His Honour then spoke directly to Mr Calvert]

26. Mr Calvert, you probably understand that, but I am required to explain it to you. I have not activated the sentence. I seriously considered that because this really was quite similar in some ways to what you did and you knew what you were doing. I accept that alcohol meant that you behaved really stupidly instead of sensibly owning up and copping it. However, I have re-sentenced you to the same period of imprisonment, but I have suspended it today taking into account the period of periodic detention. Therefore, I am required to make a good behaviour order, and I have.

27. It seems to me that the three things I should do to make it clear to you that your behaviour is unacceptable is:

(1) Stop you drinking for twelve months; any alcohol will be a breach of the order and you can be brought back. As you can understand, I will seriously consider then sending you to prison. Hopefully that will support your commitment to do that. You can actually enjoy yourself without having to drink alcohol, and you have just got to start learning to do that. I have not made that for the whole period, only for the twelve months, and so you can get it under control, but if you are an alcoholic, you cannot, and it may be that you just have to say, like a lot of people in our community, orange juice or lemonade is the way to go.

(2) I have made an order for community service. Now, you have been able to do that, but I appreciate as a carpenter that puts enormous pressure on you, and so I have made it only for 150 hours, that is in addition to your current community service. As you are able to pay a fine, in effect, you have bought out some period of community service, and that is going to be a penalty to you, you earn a decent wage, but to pay $800 in twelve months will be a penalty to you, I understand.

(3) The good behaviour order you understand, because if you breach it you come back before me, and if you come back before me this time the chances of you going to gaol are very high, as you understand.

28. You cannot just flout these good behaviour orders. You have shown that you can do them okay, you have now settled down, you have a partner who is obviously supportive and helpful, your parents seem supportive, you have a good job, your contractor is supportive. I hope that this is the last time we see you in the criminal courts, but you are getting a longish history and you cannot expect leniency from the courts.

I certify that the preceding twenty-eight (28) 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