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[2016] ACTSC 34
Supreme Court of the ACT
2016-02-26
Refshauge J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - Jurisdiction, practice and procedure - judgment and punishment - sentencing - re-sentence - assault occasioning actual bodily harm - breach of Good Behaviour Order - re-offending - possessing goods reasonably suspected of being stolen - obtaining property by deception - community service work
Crimes Act 1900 (ACT), ss 24, 209
Crimes (Sentencing) Act 2005 (ACT), ss 7, 33
Guy v Anderson [2013] ACTSC 5
Ledson v Taylor [2010] ACTSC 42
R v Curtis [2013] ACTSC 291
R v Kekalainen (No 2) [2015] ACTSC 369
Saga v Reid [2010] ACTSC 59
Legal Aid ACT (Defendant)
1. On 1 June 2013, Matthew Curtis assaulted a woman with whom he was then in a relationship. He punched her a number of times, causing her bruising. He was charged with assault occasioning actual bodily harm, an offence against s 24 of the Crimes Act 1900 (ACT), which attracts a maximum penalty of five years imprisonment.
2. On 11 October 2013, he entered a plea of guilty and I sentenced him to twelve months imprisonment, suspended that day, and made a Good Behaviour Order with a probation condition for two years: see R v Curtis [2013] ACTSC 291.
3. On 4 April 2015, however, within the period of the Good Behaviour Order, Mr Curtis was found in possession of a number of electronic and other items reasonably suspected of being stolen.
4. On 4 November 2015, he pleaded guilty in the ACT Magistrates Court and, on 22 December 2015, he was convicted of the offence of possessing goods reasonably suspected of being stolen, an offence contrary to s 324 of the Criminal Code 2002 (ACT), for which the maximum penalty is 50 penalty units (that is a fine of $750) and imprisonment for six months. In sentencing him, a further Good Behaviour Order was made for eighteen months with a community service condition that he perform 80 hours of unpaid community service work.
5. As the conviction entered by the Magistrates Court was for an offence punishable by imprisonment (s 86(1)(a) of the Crimes (Sentence Administration) Act 2005 (ACT)), it breached the Good Behaviour Order I had imposed. The Magistrates Court committed Mr Curtis to this Court to be dealt with under Pt 6.5 of the Crimes (Sentence Administration) Act for the breach of his good behaviour obligations.
7. The facts of the offence which breached the Good Behaviour Order were that the attention of police, who were conducting mobile patrols in Florey, was drawn to a motor vehicle driven by Mr Curtis when it drove over a concrete gutter in the car park of Florey shops and, accordingly, they stopped the car.
8. Mr Curtis and his current partner were in the vehicle with another male who was in the rear driver's side passenger's seat.
9. When Mr Curtis and his partner got out of the vehicle, police then observed a bag on the rear seat of the driver's side. On a further search, under the emergency provisions of s 209 of the Crimes Act, police located a number of bags containing the items suspected of being stolen.
10. I did not have an indication of the value of the property, which consisted of twenty-one items including some Australian coins, but, judging from the nature of the items, the total value would be moderately significant.
11. Mr Curtis initially pleaded not guilty to the charge of possessing property reasonably suspected of being stolen, but subsequently entered a plea of guilty and was, on 22 December 2015, sentenced in the Magistrates Court as noted above (at [4]).
12. Accordingly, I must now deal with Mr Curtis for the breach of the Good Behaviour Order I had made.
13. Under s 110 of the Crimes (Sentence Administration) Act, where a Good Behaviour Order was made when a sentence of imprisonment was suspended, the court, if satisfied that the offender has breached any of the offender's good behaviour obligations, must cancel the Good Behaviour Order. The court then has a wide discretion, either to impose the suspended sentence imposed for the offence or re-sentence the offender for the offence.
14. The Good Behaviour Order has now expired, nevertheless, under the legislation, I have power still to proceed under s 110 where the breach occurred during the currency of the Good Behaviour Order.
15. In Saga v Reid [2010] ACTSC 59 at [99]- [101], I adopted what had been said in other cases; namely, that the failure of courts to act where there has been a clear breach of the conditions of a conditional release order, such as a Good Behaviour Order, imposed when a sentence of imprisonment is suspended and by which the offender avoided being sentenced to full-time prison, is likely to bring such sentences into disrepute.
16. Nevertheless, as I pointed out in Guy v Anderson [2013] ACTSC 5 at [83]- [87], there is, in this jurisdiction, no presumption in favour of imposing the original sentence that had been suspended. Thus, a court may, in an appropriate case, merely sentence the offender to the same sentence, including suspension of the term of imprisonment, as originally imposed. While that would have the effect of extending the period in which the offender is subject to a Good Behaviour Order, that may be modified to take account of the period of satisfactory compliance with the earlier order.
17. Over time, a number of considerations have been identified as relevant to the decision as to the appropriate response to the breach of a Good Behaviour Order.
18. These include the proportion of the term of the Good Behaviour Order that had been served without breach, any rehabilitation attained by the offender prior to the breach, the nature of the offence which breached the order, including whether it is similar to the offence for which the sentence of imprisonment, then suspended, was imposed, the relative seriousness of the offence so that the imposition of the suspended sentence would be disproportionate to the gravity of the breach offending; and, the prospects of the offender's rehabilitation.
19. Indeed, with re-sentencing, the legislation expressly applies the Crimes (Sentencing) Act 2005 (ACT), to any re-sentencing, which permits all relevant factors on sentencing to be taken into account.
20. In order to determine how to proceed, then, I need to consider not only the facts of the breach but the personal circumstances of Mr Curtis, including his response to the Good Behaviour Order I made.
21. I had a helpful Pre-Sentence Report and from this, my previous decision, and submissions of counsel, I can make the following findings. Mr Curtis is still a relatively young man aged 20 years. Details of his education, employment and relationship history are set out in R v Curtis at [6]-[10].
22. Mr Curtis is, significantly, now employed; he has part-time work as a waiter at a hotel restaurant, a job he has held for the last three months. He obtains great job satisfaction and has enjoyed learning new skills given his limited employment history, to which I referred in R v Curtis at [8].
23. The job is important but obviously not adequately remunerative because he remains on Centrelink payments.
24. He and his present partner, who was in a relationship with him at the time of the earlier sentencing and then provided some evidence for him, have lived in stable ACT Housing accommodation for the past two years. When Mr Curtis first appeared before me to be sentenced for the breach of the Good Behaviour Order, his partner was pregnant and was expected to give birth the next day.
25. I am pleased to say that the birth apparently went successfully and Mr Curtis is now a proud father of a newborn daughter.
26. I described Mr Curtis' use of alcohol and illicit substance in the R v Curtis at [11]-[14]. He told the author of the Pre-Sentence Report that he ceased using methylamphetamine about eighteen months ago and has engaged in drug and financial counselling with Directions (formerly Directions ACT). That is to be commended. He currently smokes approximately 1½ grams of cannabis each week. I pointed out to him that that is an illegal drug and he should not continue to use it nor be using it around his new daughter.
27. The Pre-Sentence Report noted that a drug screening tool indicated that his drug related risk is low, with further interventions required.
28. I referred to Mr Curtis' physical and mental health in R v Curtis at [16]-[19]. I note he is not currently medicated but it has been suggested that it would be beneficial for him to attend his general practitioner or a mental health professional for a further assessment of his current state of health to determine if current treatment would be beneficial.
29. In order that I may have a little more information about that, I requested a summary of his interactions with Forensic Mental Health.
30. At some effort from Forensic Mental Health and ACT Health, for which I am grateful, I received a helpful Mental Health Update.
31. It showed that Mr Curtis had contacted Mental Health Services in 2007, when concerns were expressed that he may have attention deficit hyperactivity disorder.
32. He consulted a psychiatrist in 2012 and was diagnosed with a First Episode Psychosis and was prescribed Resperidone, an oral antipsychotic medication. He had a good response to the treatment with a significant improvement in symptoms over time.
33. Although referred to the Junction Youth Health Service, he did not continue engagement with the Mental Health Services, though he has since had some contact with Forensic Mental Health Services.
34. He has not had contact with Mental Health Services, however, since August 2014.
35. That, no doubt, is one of the reasons why, in the Pre-Sentence Report, it suggested that it may be desirable for him to return to his general practitioner or a mental health professional for some further assistance or advice about that position.
36. Mr Curtis' explanation for the offending was that he was struggling financially and would have sold the items to purchase food and pay a debt. The Pre-Sentence Report records:
He had not initially thought of the consequences of his action although expressed insight into the possible negative impact his behaviours could have had on his partner and unborn child.
37. It is unfortunate that, having been in financial difficulties, he did not discuss the matter with the probation officer who was supervising him and who could have assisted by pointing him to agencies, such as St John's Care, which would have been able to provide him with food and directions to financial counsellors and the like.
38. The Pre-Sentence Report also noted that his relationship with his current partner is supportive and he could reduce his risk of re-offending by participating in prevention programs such as cognitive behavioural treatment, as well as drug use counselling and engagement with medical services. His current risk of general re-offending is assessed at medium to low.
39. I set out Mr Curtis' criminal history in R v Curtis at [15]. He is, regrettably, building up a somewhat worrying criminal history.
40. When he was convicted of the offence which breached his Good Behaviour Order, he was also dealt with by the court for two other offences. The first was obtaining property by deception, an offence prohibited by s 326 of the Criminal Code, for which the maximum penalty is 1000 penalty units (that is a fine of $150,000) and imprisonment for ten years. The second was a further offence of unlawful possession of stolen property. For both offences, he was convicted but sentenced to the rising of the court, a very moderate sentence I have described in Ledson v Taylor [2010] ACTSC 42 at [56]- [60].
41. The Magistrates Court made a community service work condition to the Good Behaviour Order it had imposed, requiring Mr Curtis to perform eighty hours of community service within twelve months.
42. Unfortunately, his capacity to undertake that work has been somewhat compromised because of his employment. He is required to attend his place of employment between the hours of 6:00 am to 11:30 am or 12:00 noon in the morning and 3:00 pm to about 10:00 pm every evening. He has been unable, therefore, to attend at an induction program for community service which is conducted on Tuesdays and Thursdays between 9:00 am and 11:00 am and 5:00 pm and 7:00 pm. Without attending that induction program, he is unable to discharge his obligation to undertake the community service work.
43. When these matters were drawn to my attention, I adjourned the proceedings to allow for investigation to see whether some accommodation could be found between his employer and ACT Corrective Services. No such accommodation seems to have been reached, at this stage, and ACT Corrective Services have indicated to him that they are not able to conduct an induction program in the times between his work in the morning and starting work in the afternoon.
44. Nevertheless, I heard Mr Curtis' evidence in which he has informed me that, were I to require him to undertake the induction within a period of two weeks, he would be able to approach his employer and is confident that he would be able to undertake to attend an induction service at one of the times stipulated by ACT Corrective Services.
45. In my view, the fact that the offence was of a different character and less serious to that offence for which I originally sentenced Mr Curtis and the reason why he committed it, show that he had not started on a life of serious criminal offending but was rather committing a stupid, but criminal, offence, prompted by his perceived necessity, and that he had otherwise complied with the Good Behaviour Order, including satisfactory compliance with supervision, justifies me in re-sentencing Mr Curtis rather than imposing the sentence that was suspended.
46. It seems to me, however, that the breach of the Good Behaviour Order means that my hope for his rehabilitation is not as strong as it was and I should reinforce his efforts in that direction by some means. I consider that a sentence of imprisonment is the sentence that must be imposed.
47. It does, however, not seem to me, particularly with the now birth of his baby, that a period of imprisonment served as full-time custody is appropriate. His financial circumstances also mean that a fine is inappropriate.
48. Accordingly, the only alternative is to impose a further period of community service.
49. Having regard to the circumstances which I have now heard, it seems to me that a period of community service work, extended to allow for the completion of such condition, even though it may require some management of his employment obligations, is required.
50. I have regard to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act. In this case, because the offence was a family violence offence, there is a need for general deterrence. It was for that reason that I decided to impose a sentence of imprisonment, although ultimately to suspend it.
51. Some element of specific deterrence is also required, having regard to the breach of the Good Behaviour Order I had earlier made. In my view, that can be adequately addressed by making a community service work condition.
52. Vindication of the victim is always important in family violence offences and, again, the expression of the court's displeasure with the offending by the imposition of imprisonment will meet that objective.
53. I also have regard to the matters which I am required to consider under s 33 of the Crimes (Sentencing) Act, so far as I know them. They are set out above and in R v Curtis, which reasons I incorporate in these reasons. In particular, I note Mr Curtis' youth, his employment, though recent, and the birth of his child into a stable relationship, in which there does not appear to have been any family violence. I note that he has been assessed as suitable for a community service work condition to a Good Behaviour Order but not suitable to serve a sentence by way of periodic detention because of his work days which pose potential barrier to regular reporting for periodic detention.
54. I take into account his compliance to date with the Good Behaviour Order. That permits me to make a different sentence, if appropriate, so as to recognise the period of the sentence that has been served. See R v Kekalainen (No 2) [2015] ACTSC 369 at [48] and the cases there cited.
1. I cancel the Good Behaviour Order made on 16 December 2013.
3. I confirm the conviction of the offence of assault occasioning actual bodily harm committed on 1 June 2013.
4. I sentence you to twelve months imprisonment to commence on 15 August 2015 to take into account pre-sentence custody. Had you not pleaded guilty I would have sentenced you to fifteen months imprisonment.
5. I suspend the sentence today for eighteen months.
6. I require you to sign an undertaking to comply with the good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of eighteen months with the following conditions:
(a) a probation condition that you be subject to the supervision of the Director-General or her delegate for 18 months or such lesser period as the person delegated to supervise you determines is appropriate and you obey all reasonable directions of the person supervising you, especially as to counselling or treatment for mental health and abuse of alcohol and other drugs;
(b) that you perform forty hours of community service work within eighteen months from today.
(c) that you complete an induction course for the community service work within two weeks from today.
(d) that you attend at ACT Corrective Services, Eclipse House, by close of business today.
56. Mr Curtis, I am obliged to explain that sentence to you. As you know, I previously sentenced you to twelve months imprisonment but I suspended it. I have reimposed that sentence but have suspended it again and made, as I am required to, a Good Behaviour Order, this time for eighteen months, because the period of compliance that you have already completed allows me to moderate that to some extent.
57. I have included two primary conditions. One is the probation condition that you be under supervision. You have been able to comply with that condition in the past but it fell apart when you failed to discuss with your probation officer the difficulties that you were in and the need for you to sort out those difficulties without resorting to criminal activity which has, of course, now led you back to this Court.
58. The second is to perform forty hours of community service, but I have given you eighteen months to do that, not the required twelve months, so that you can pace yourself to meet with your obligations at work, which is important.
59. I have also, as we discussed earlier, required you to complete an induction program within two weeks and you can use that obligation to assist you in, I hope, being able to persuade your employer to allow that to occur without any negative consequences upon your employment.
60. You will have to report to Corrective Services today to tell them that you have got that order now and arrange further ongoing supervision and also to indicate to them that you will be attending an induction service within two weeks. That may, hopefully, obviate the need for any breach which will prevent any further appearances in court.
61. I hope that your work, which you obviously enjoy and which is good for you, for the community and, of course, your family, and the birth of your baby daughter will now mean that the criminal courts will not see you again. As an adult, you are starting to build up a worrying list of criminal activities and hopefully you can bring that to an end.
I certify that the preceding sixty-one [61] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.
R
Curtis