1. Joseph Cockburn be convicted of demanding money with menaces.

2. Joseph Cockburn be sentenced to two years imprisonment to commence on 21 May 2015.

3. Joseph Cockburn be convicted of taking a motor vehicle dishonestly without consent.

4. Joseph Cockburn be sentenced to 15 months imprisonment to commence on 21 June 2016, so as to be cumulative as to four months on the sentence for demanding money with menaces.

5. Joseph Cockburn be convicted of common assault.

6. Joseph Cockburn be sentenced to nine months imprisonment to commence on 21 February 2017, so as to be cumulative as to two months on the sentence for taking a motor vehicle dishonestly without consent.

7. That is a total of two years and six months imprisonment.

8. The sentence be suspended today, 2 February 2016.

9. Joseph Cockburn be required to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years from today with a probation condition that he be under the supervision of the Director-General or her delegate for two years or such lesser period as the person supervising him deems appropriate and that you obey all reasonable directions of the person supervising him.

CRIMINAL LAW - Jurisdiction, practice and procedure - judgment and punishment - sentencing - demanding money with menaces - taking a motor vehicle dishonestly without consent - common assault - Deferred Sentence Order - completion of rehabilitation - sentence suspended - Good Behaviour Order

Crimes Act 1900 (ACT), ss 26, 32(2)

Crimes (Sentence Administration) Act 2005 (ACT), s 7

Crimes (Sentencing) Act 2005 (ACT), ss 27, 33

Road Traffic (Driver Licensing) Act 1999 (ACT), s 32

Road Transport (Vehicle Registration) Act 1999 (ACT), s 22

Criminal Code 2002 (ACT), ss 308, 318(1), 318(2), 321, 403

R v Campbell [2010] ACTCA 20

R v Cockburn [2015] ACTSC 297

R v Cockburn (No 2) [2015] ACTSC 337

R v Kristiansen [2015] ACTSC 159

1. On 14 September 2015, I released Joseph Cockburn on bail to attend the Karralika Therapeutic Community, a drug and alcohol rehabilitation agency. I have described that agency and its work in R v Kristiansen [2015] ACTSC 159 at [12]- [14]; see R v Cockburn [2015] ACTSC 297. He responded well and I received a positive report when he returned to court for sentencing on 14 October 2015. As a result, I made a Deferred Sentence Order under s 27 of the Crimes (Sentencing) Act 2005 (ACT); see R v Cockburn (No 2) [2015] ACTSC 337.

2. Mr Cockburn had been charged with the following offences:

(1) an offence of making a demand on the complainant with a threat to endanger the health, safety or physical wellbeing of the complainant, often called making a demand with menaces, contrary to s 32(2) of the Crimes Act 1900 (ACT), which provides for a maximum penalty of 10 years imprisonment;

(2) dishonestly taking someone else's motor vehicle without consent, an offence contrary to s 318(1) of the Criminal Code 2002 (ACT), for which the maximum penalty provided is 500 penalty units (at the time, a fine of $70,000), and five years imprisonment;

(3) an offence of common assault, an offence against s 26 of the Crimes Act, for which the maximum penalty provided is two years imprisonment.

3. He also asked me to take into account a number of offences under Pt 4.4 of the Crimes (Sentencing) Act. These amounted to offences committed between 1 November 2014 and 6 January 2015. They involved three offences of driving or riding in someone else's motor vehicle without consent, an offence of dishonestly taking someone else's motor vehicle without consent, two offences of intentionally causing damage to property, and two offences of theft, one of minor theft.

4. Dishonestly driving a motor vehicle without the consent of the owner is an offence contrary to s 318(2) of the Criminal Code and provides for a maximum penalty of 500 penalty units (at the time, a fine of $70,000) and five years imprisonment.

5. Intentionally causing damage is an offence against s 403 of the Criminal Code which provides for a maximum penalty of 1000 penalty units (at the time, a fine of $140,000) and 10 years imprisonment.

6. Theft is an offence against s 308 of the Criminal Code providing for a maximum penalty of 1000 penalty units (at the time, a fine of $150,000) or 10 years imprisonment.

7. Driving while disqualified is an offence against s 32 of the Road Traffic (Driver Licensing) Act 1999 (ACT), which provides for a maximum penalty of 50 penalty units (that is a fine of $7500).

8. Using a motor vehicle with a thing to deceive as a numberplate is an offence contrary to s 22 of the Road Transport (Vehicle Registration) Act 1999 (ACT), which provides for a maximum penalty of 20 penalty units (at the time, a fine of $3000).

9. Minor theft is an offence against s 321 of the Criminal Code which provides for a maximum penalty of 50 penalty units (at the time, a fine of $7000) or six months imprisonment.

10. I have set out the facts in R v Cockburn (No 2) at [19] - [50]. I will take these offences into account in the way described in R v Campbell [2010] ACTCA 20 at [43]- [53].

11. As a result of the maximum penalties, it can be seen that at least two of the offences are regarded as quite serious offences because of the maximum penalties provided; see Markarian v The Queen (2005) 228 CLR 357 at 372; [30]-[32]. I also set out Mr Cockburn's subjective circumstances in R v Cockburn (No 2) at [54] - [97].

12. I note that he has a criminal record, but these offences, especially the serious offences, are the most serious of the offences that he has committed. Since then, he has been in Karralika, and I had a detailed report from that agency. It stated that:

Joseph completed the initial eight week Karuna Program on November 15 2015 and participated in programs, workshops and individual counselling support to assist him in his recovery. Of particular importance were sessions concerning relapse prevention, honesty, introduction to support groups, e.g Alcoholics Anonymous and Narcotics Anonymous, parenting and relationships, anger management, guilt, shame and grief, building of self-esteem and development of trust.

During this time, he was encouraged to take responsibility for his actions and the choices he has made.

13. He worked with a case manager who provided the report and he noted:

I have had the opportunity to work with Joseph in an individual setting and during these times it appears that Joseph is committed to his recovery. Joseph has displayed an openness and willingness to address his drug and related issues whilst in the program. Joseph has identified that he has a long term drug addiction and has expressed motivation and enthusiasm in making positive changes that will reflect on his and his child's lives and the relationship he has with his current partner.

demonstrated a basic understanding of the guidelines and structure as to how the program works and was able to identify at least three major issues that he needed to address.

15. Those included, as well as his alcohol and other drug misuse, his depression, which has led him to drug use in the past, and the unmanageability of his life, or when he lost all that was important to him during his addiction problems. He worked on a number of issues that were set out in the report which I do not need to set out but which will give him very substantial skills and understanding of how to proceed, particularly in relation to parenting education, relapse prevention, self-evaluation and stress management.

Joseph met the expected competencies of the Karuna Program and moved to the Karralika Adult Program on November 20 2015. Upon entering the Treatment Phase of the program, Joseph is participating in one on one Case Management sessions.

17. Again, it listed a number of important core curriculum subjects that he was focusing on, including anger and anger management, family violence, the addiction cycle, relationships, guilt and shame, understanding and management of stress, time management and problem solving, people pleasing, selfishness and making amends.

18. The report went on to make the important comment as follows:

Joseph entered the Karralika program and commenced his program with his partner. The couple had been separated for the previous 6 months due to Joseph serving time in gaol. The couple have a baby together, Charlie DOB April 20 2015. Joseph has moved to our family program and is now having extended contact with his daughter Charlie. CYPS [Children and Youth Protection Services] are supporting Joseph to have full time care of his daughter and the process of restoration is planned for March 2016. Joseph is focussed and working towards an independent and healthy life for himself and his family. The Karralika Family Program is supporting Joseph to work through our program and achieve his goals.

19. That is very important because one of the motivators for him entering the program was that the placement of his daughter was under serious consideration by Child and Youth Protection Services, who had taken the child into care and had indicated that, in accordance with the current regime, they were proposing to have the child adopted. This was anathema to Mr Cockburn and when he was advised that his rehabilitation may result in the adoption not proceeding and his gaining custody, he renewed his efforts to undertake the rehabilitation program that was offered.

20. It is clear from the report that that has been successful and his success at rehabilitation has meant that adoption is no longer an option that is being pursued by Child and Youth Protection Services, but instead restoration to Mr Cockburn. Hopefully, that will be the best for him, his partner and his daughter and, hopefully, some of the matters that he has learnt while he has been in Karralika will be of assistance in parenting, which, of course, will be a challenge for him.

21. When making the Deferred Sentence Order, I said in R v Cockburn (No 2) at [113]:

I indicate that if you do not comply with this order and the bail conditions, I consider that you should be sentenced for a term of immediate imprisonment for approximately three years, but backdated to take into account the pre-sentence custody. I indicate that if you comply with this order and the bail conditions, I consider that you should be sentenced to imprisonment for a period of approximately two years and six months, which will be suspended after serving the period that you have already served, and with a Good Behaviour Order, and that may include some community service condition. It depends on how things go.

22. His progress at Karralika has satisfied the obligation I placed on him. It is appropriate then that I sentence him in terms of the Deferred Sentence Order. There has been no further offending and, so far as I have been able to determine, no further use of drugs. The Crown accepts that it is appropriate that I proceed in this way. I indicated in my comments to Mr Cockburn that I may include some community service condition. It seems to me that, at this stage, that is probably not appropriate. I am satisfied that I can construct a sentence that is appropriate to meet the needs of the purposes of sentencing without adding to the pressure that having a new child in his custody and under the supervision of Child and Protection Services will undertake is not appropriate.

23. I have had regard to the purposes of sentencing set out in s 7 of the Crimes (Sentence Administration) Act. In this case, deterrence is important because of the seriousness of the offences, but I recognise that, in this case, rehabilitation is also important. Mr Cockburn is at a crossroads. He has a depressingly long criminal history, but it is not a serious one and it is certainly not as long and serious as many of those who come before this Court. Nevertheless, he is at the choice point now since he has started to commit very serious offences.

24. If he can address his drug addiction, and his time in Karralika is only the start of that, then hopefully the courts will see him no more in its criminal jurisdiction. The rehabilitation, with which he has been successful to date, reinforced by the fact that Child and Youth Protection Services are considering returning his child to him is, in my view, important for the community.

25. I have regard to the matters I am required to have regard to under s 33 of the Crimes (Sentencing) Act. Those are set out above and in the earlier decisions of R v Cockburn and R v Cockburn (No 2).

26. It is only appropriate in these circumstances, through his positive and successful response to the Deferred Sentence Order, that there is no need to have him serve any further time in full-time custody. Nevertheless, because of the seriousness of the offences, a term of imprisonment is only appropriate, but I do not require him to serve any further full-time custody.

28. I convict you of demanding money with menaces.

29. I sentence you to two years imprisonment to commence on 21 May 2015. Had you not pleaded guilty, I would have sentenced you to two years and eight months imprisonment.

30. I convict you of taking a motor vehicle dishonestly without consent.

31. I sentence you to 15 months imprisonment to commence on 21 June 2016. That is cumulative as to four months on the sentence for demanding money with menaces. Had you not pleaded guilty, I would have sentenced you to 20 months imprisonment.

33. I sentence you to nine months imprisonment to commence on 21 February 2017, so as to be cumulative as to two months on the sentence for taking a motor vehicle dishonestly without consent. Had you not pleaded guilty, I would have sentenced you to 12 months imprisonment.

34. That is a total of two years and six months imprisonment.

36. I require you to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years from today with a probation condition that you be under the supervision of the Director-General or her delegate for two years or such lesser period as the person supervising you deems appropriate and that you obey all reasonable directions of the person supervising you.

37. Mr Cockburn, you have met my expectations and it is fair that I sentence you in accordance with what I said I would do.

38. That means you do not have to spend any further time in full-time custody, but you do have a sentence of imprisonment hanging over your head because of the seriousness of the offences and the circumstances under which they were committed and your personal circumstances. You have to enter into an undertaking to be of good behaviour for a period of two years. That undertaking has a condition that you be under supervision for two years or a lesser period if you are going well. You breach that undertaking if you commit any further offences that are punishable by imprisonment.

39. If you breach the undertaking, you can be brought back before the court and you can be resentenced or you can be sentenced to the balance of the term, about two years of imprisonment, or such lesser period as the court deems appropriate in the circumstances. That is to reinforce to you that, in effect, you are on probation for a period of time.

40. I have also made a probation condition. Probation is supervision by a Corrective Services officer. That has two aspects to it; one is control, so they can ensure that you are doing the right thing and things are going well and that you are not committing any further offences or running back to drugs and so on.

41. There is also a beneficial side to that, and that is that there is someone independent who has knowledge, in particular, of agencies and services that may be necessary, so that if things go wrong or are looking bad, if you get depressed, then there is the option of counselling and treatment that can be provided and Corrective Services, your probation officer, can point you in that direction. If drugs become a problem, then you can be pointed in that direction. Karralika provides an outpatient service, as it were, that hopefully you will access.

42. Finally, the success in Karralika is very important. You have earned what I offered to you and you should be proud of that, but you should also be aware that once you leave Karralika, life can get tough out there. I do not know whether you were here when an earlier matter of Robertson was dealt with. Mr Robertson was a star pupil at Karralika. He was described as one of the best graduates. Things did not go well thereafter and he is back for re-sentencing for breaches. Do not get starry-eyed. You have done very well. You have achieved your objective; you will have your child back in March.

43. Hopefully you have your drug use under management but you will be an addict and you will be an addict forever, and that will be a tough and challenging process, particularly, as I understand, that your partner is also an addict and that is a recipe for difficulties. That is why I have given the probation condition so that you have that formal support, and I wish you the best. You have shown you can do it. It will be hard out there. Do not take it too easily. I hope that for you, and more particularly for the sake of your child, that we in the criminal courts will not see you again, and I am prepared to take that risk at this stage, but with the protections that I have indicated.

I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.