R v Diamond [2015] ACTSC 35

CRIMINAL LAW − Resentencing − breach of good behaviour order - repeated breach − rehabilitation

Crimes (Sentencing) Act 2005 (ACT) ss 7, 12(3), 33, 61

Crimes (Sentence Administration) Act 2005 (ACT) s 110

1. The offender is before the Court for breach of a good behaviour order imposed by Nield AJ on 7 June 2013.

2. On 14 October 2006 the offender committed an offence of attempt aggravated robbery. It involved an attempt to rob a shop armed with a replica firearm while wearing a balaclava. The offender was sentenced by Crispin J on 6 September 2007 to two years and six months' imprisonment. The sentence was fully suspended upon the offender entering a good behaviour order for three years.

3. Within the period of that good behaviour order, the offender committed several offences. He was brought before Refshauge J on 11 August 2010. Refshauge J resentenced him to two years and six months' imprisonment, suspended upon the offender entering a good behaviour order for 18 months. This sentence was contrary to s 12(3) of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). Section 12(3) provides that a good behaviour order that accompanies a suspended sentence order must be for the period during which the sentence is suspended or a longer period. Refshauge J imposed it for a shorter period. However, no attempt has been made to set aside or invalidate the resentence by Refshauge J. Steps could have been taken pursuant to s 61 of the Sentencing Act.

4. The offender committed further offences and was brought before Refshauge J on 27 April 2012. The stated breach was failing to attend appointments. On that occasion, his Honour resentenced the offender to two years and six months' imprisonment suspended upon the offender entering into a 24 month good behaviour. For the reasons already mentioned this was contrary to s 12(3) of the Sentencing Act. Again, no attempt was made to set that sentence aside. No proceedings were taken to reopen and correct the resentence under s 61 of the Sentencing Act.

5. The offender committed further offences. The offender was brought before Nield AJ for breach of a good behaviour order on 7 June 2013. His Honour resentenced the offender to two years and six months' imprisonment. Nine months was to be served by way of periodic detention. The remaining one year and nine months was suspended upon the offender entering a good behaviour order for one year and nine months. In proceeding to that resentence, his Honour would have cancelled the resentence of Refshauge J on 27 April 2012. It is therefore a matter of academic interest only as to whether, when an incorrect sentence has been cancelled, it can subsequently be corrected under s 61 of the Sentencing Act. Nobody sought to attack the resentence by Nield AJ on 7 June 2013. That resentence stands. There is no need (and perhaps there is no power) for me to go behind that resentence. I proceeded on the basis that there was a breach of the good behaviour order imposed by Nield AJ on 7 June 2013.

Breach of the GBO (Subject of these Proceedings)

6. After the offender was resentenced on 7 June 2013, he committed a number of offences. The breach of the good behaviour order was admitted. During the period of periodic detention, the offender committed two offences. He provided cannabis to another detainee at the Periodic Detention Centre and he took cannabis into the Periodic Detention Centre. On 30 April 2014 (having completed the term of periodic detention) the offender committed a minor theft.

7. In late 2014, the offender came before the Magistrates Court for the offences committed post June 2013. The offender was sentenced to imprisonment for a total period of about two and a half months. He was released last month.

8. The offender is now 30 years of age. He has a new partner, job prospects and some responsibility for his terminally ill mother. The offender has mental health issues. He has a substance abuse problem. The various offences committed over the years testify to that. He has been diagnosed as having a personality disorder. He is a victim of trauma and abuse, which has caused post-traumatic stress disorder and/or depression. He suffered a spinal injury at one stage. There is reference to him attending a psychologist for drug and alcohol abuse counselling. However, no material from that psychologist was presented. The history suggests that the offender has psychological or mental health problems which need to be addressed. The criminal history suggests that they will be difficult to address.

9. The matter before the Court is breach of the good behaviour order imposed by Nield AJ on 7 June 2013. The resentence relates to the offence of attempt aggravated robbery committed on 14 October 2006.

10. Over the last eight years, the offender has spent several periods in residential rehabilitation. The normal practice would be to make an allowance for those periods; treating them as periods of fulltime imprisonment but at a discounted rate of 50%. The offender spent approximately five months in rehabilitation in 2008 and approximately eight months in late 2008/2009; a total period of approximately 13 months. I will give him "credit" for that period of six months.

11. Of the original sentence of two years and six months' imprisonment, the offender has served 15 months; nine months of periodic detention and six months of residential rehabilitation. This leaves a balance of 15 months. Under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT), when resentencing the offender, I do not have to adhere to the sentence that was imposed in the first instance. However in this case I consider it appropriate to do so.

12. In resentencing the offender, I am bound to consider the factors in ss 7 and 33 of the Sentencing Act. Those factors were adequately and properly taken into account at the outset by Crispin J. Therefore I will not refer to them in detail. Regrettably, the history over the last eight years shows that the offender has continued to breach the law. He has continued to breach good behaviour orders. He has disregarded the many opportunities that he has been given to rehabilitate. Fortunately, the breaches were generally of a relatively minor nature, but they were numerous.

13. I am aware that the original sentence of two years and six months' imprisonment has been partly served, one way or another. Ordinarily, a non-parole period would relate to the original sentence period of two years and six months. However, this is an unusual case because the manner in which the sentence has to date been served has not involved any fulltime imprisonment.

14. Fulltime imprisonment is a sentence of last resort but the stage has been reached when that is the only sentence that can be imposed. There has been no period of fulltime imprisonment served in relation to this matter. It is appropriate to impose a non-parole period of roughly 50%. The non-parole period is imposed by reference to the unserved period of 15 months rather than the original total of two years and six months' imprisonment. It is appropriate to set a non-parole period because that will provide greater control over the rehabilitation of the offender. Presumably, he will not be released to parole until he is deemed ready for release. The non-parole period should provide a greater incentive for him to commence rehabilitation while in custody and to continue rehabilitation upon release.

15. I find that the offender has breached the good behaviour order by the commission of an offence on 30 April 2014. The good behaviour order imposed by Nield AJ is cancelled. The offender is resentenced to imprisonment for a period of 15 months from 3 February 2015 to 2 May 2016. A non-parole period of seven months is fixed from 3 February 2015 to 2 September 2015. The offender is eligible for release to parole on 2 September 2015.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.