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[2016] ACTSC 71
Supreme Court of the ACT
2016-03-31
Refshauge J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
1. The Good Behaviour Order made on 20 February 2014 is cancelled;
3. The conviction of EL for aiding and abetting in the commission of the offence of intentionally inflicting grievous bodily harm (XO 11/140) on 1 June 2011 is confirmed;
4. EL is sentenced to 20 months imprisonment to commence from today, 31 March 2016, suspended for 1 year from today;
5. EL is required to sign an undertaking to comply with good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 1 year from today, 31 March 2016;
6. EL is required to pay a fine of $100 within one month.
CRIMINAL LAW - Jurisdiction, practice and procedure - judgment and punishment - re-sentencing - aiding and abetting commission of intentional infliction of grievous bodily harm - breach of Good Behaviour Order - Good Behaviour Order expired - further offending - traffic offences
Crimes (Sentencing) Act 2005 (ACT), s 12
R v Curtis (No 2) [2016] ACTSC 34
R v EL [2014] ACTSC 57
R v Kekalainen (No 2) [2015] ACTSC 369
1. On 20 February 2014, I convicted EL of aiding and abetting a cooffender in the offence of intentionally inflicting grievous bodily harm on a victim who had been bashed and stabbed on 1 June 2011.
2. The victim was seriously wounded in the incident in which this offence was committed and required extensive medical intervention, with inevitable physical and mental consequences, although no victim impact statement was provided at the sentencing hearing.
3. I sentenced EL to three months imprisonment, but suspended it for two years. I made, as I was required to do under s 12 of the Crimes (Sentencing) Act 2005 (ACT), a Good Behaviour Order for two years with the condition that EL perform 100 hours of community service. See R v EL [2014] ACTSC 57.
4. Under s 86 of the Crimes (Sentence Administration) Act 2005 (ACT), a core condition of a Good Behaviour Order is that the offender not commit any offence punishable by imprisonment during the period of the Good Behaviour Order. On 11 June 2015, EL was convicted of an offence against s 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT), of being a first offender driving while his licence was suspended by law.
5. This offence attracts a maximum penalty of 50 penalty units (that is, at the time, a fine of $7500) and imprisonment for six months. The conviction thus breaches the Good Behaviour Order. EL was committed by the Magistrates Court to this Court on 11 June 2015 under s 107 of the Crimes (Sentence Administration) Act 2005 to be dealt with for the breach of the Good Behaviour Order. He admits the breach.
6. When EL appeared in the Magistrates Court he was convicted and fined $250 and automatically disqualified from holding or obtaining a driver licence for one month. The suspension of his licence was as a result of a failure to pay amounts due under traffic infringement notices. It was explained that the notices went to an old address.
7. Of course, a person holding a driver licence has an obligation under s 74 of the Road Transport (Driver Licensing) Regulation 2000 (ACT) to notify any change of address, and a failure to comply with that regulation is an offence in itself.
8. EL was, at the same time, convicted of an offence under s 18(1) of the Road Transport (Vehicle Registration) Act 1999 (ACT), of using an unregistered registrable vehicle on the road and fined $400 on his plea of guilty. This offence, punishable only by a fine, did not breach the Good Behaviour Order.
9. He was also charged with an offence under s 17(1) of the Road Transport (ThirdParty Insurance) Act 2008 (ACT), of using an uninsured motor vehicle on the road and again, on his plea of guilty, convicted and fined $400. He said that he thought the vehicle was registered and insured as he had been told that. This offence was also only punishable by a fine and so, too, did not breach the Good Behaviour Order.
10. It appears that on 9 July 2015, he appealed against the Magistrates Court decision.
11. That appeal was based on a view of his lawyers that the facts could not have founded the offences, but that view was later abandoned and the appeal was discontinued on 18 December 2015, when EL filed a Notice of Discontinuance.
12. The matter was then referred for the breach of the Good Behaviour Order to be considered by this Court and it has now appeared in my list.
13. Where a Good Behaviour Order has been made following the suspension of a sentence of imprisonment, the court, under s 110 of the Crimes (Sentence Administration) Act, must, on satisfaction that the offender has breached any of the offender's good behaviour obligations, cancel the Good Behaviour Order. In this case, the Good Behaviour Order expired on 19 February 2016. It has, accordingly, already expired.
14. Nevertheless, though somewhat curious, I am still required to cancel the Good Behaviour Order, though expired, since that is the basis upon which the breach can be addressed by the court. Of course, this only applies to the situation where the acts constituting the breach occurred during the currency of the Good Behaviour Order, as did occur here.
15. Having cancelled the order, the court may, under s 110 of the Crimes (Sentence Administration) Act, either impose the sentence of imprisonment for the offence which was suspended or re-sentence the offender for the offence. The court has a wide discretion.
16. I have set out in a number of decisions the approach to be taken in such matters. In R v Curtis (No 2) [2016] ACTSC 34 at [15]- [19], I said:
17. I set out the subjective circumstances of EL in R v EL. They were substantial.
18. They show that EL was born in 1993 and had a largely positive childhood, though with some difficulties caused by his father's offending behaviour.
19. He was expelled from school in Year 10 but, after briefly attending another school, left to complete a hairdressing apprenticeship and then entered employment, first as a removalist and later as a painter and decorator, where he has performed very well. He has continued in that employment.
20. He has no physical or mental health issues. He has been in a stable relationship, and that is continuing. He has a 19-month-old daughter. At present, his partner and his daughter are dependent on him. They were both in court during this hearing.
21. He accepted responsibility for his role in the offence and has expressed insight into the original offending, including recognition of the serious injuries suffered by the victim and the ongoing disabilities he will have to endure. He has no criminal history other than the offence for which I convicted him and these subsequent traffic offences.
22. I had a reference from his mother. It is perhaps understandable that a mother would provide a supportive reference for her son but, nevertheless, I accept that it shows his continued generally good conduct and character in terms similar to those that I found when earlier sentencing him. It is also important that he continues to have the support of his family, and I note that other members of his family were also present in court.
23. The original offence for which I sentenced him to imprisonment and then suspended it with a Good Behaviour Order was objectively serious, which was clear from the degree of violence inflicted and the injuries sustained. The seriousness was aggravated by a degree of pre-planning for the offence. The victim was lured into an apartment so that the offence could be committed and the cooffender had a knife. At the time, I said in R v EL at [24]:
The Crown, however, acknowledged that this was an unusual case where EL had made what was described as "a remarkable turnaround" and seized the opportunity that the relatively long period between the commission of the offence and sentencing provided to show how he could reject the criminality in which he had engaged.
24. I note that EL pleaded guilty to the driving offences in the Magistrates Court on the first appearance in that Court, showing remorse and a willingness to facilitate the course of justice. I note also that the offences were of a much less serious character, as the Crown properly acknowledged. Indeed, two of the offences would not have breached the Good Behaviour Order at all. The third was punishable by a very modest penalty. I note, too, that a pecuniary penalty only was imposed in this case.
25. It is important to underline the basis on which suspended sentences are granted. They constitute, in effect, the serving of a sentence of imprisonment in the community, but on the basis that the conditions must be obeyed. Nevertheless, it would be quite disproportionate to activate the term of imprisonment that was suspended in this case, given the circumstances.
26. These further offences were committed nearly 13 months after the twoyear Good Behaviour Order had been made. They were of a different kind and far less serious than the original offence. They do not, in my view, represent a return to criminality, certainly not of the kind originally committed. They also indicate that the rehabilitation which appears to have taken place has been only interrupted rather than turned aside. I am satisfied that the reasons why I was able to apply leniency significantly to EL when originally sentencing him still apply.
27. In re-sentencing an offender, it is appropriate to have regard to the original offence, and it is indeed a sentence for that original offence. Therefore, in usual terms, it is appropriate, in imposing the sentence, to sentence in similar terms to those imposed for the original offence, unless, of course, matters have changed.
28. In particular, in this case, the period of 100 hours of community service work required to be performed by EL has been performed and it would be inappropriate to include that in a resentence, even though that was at the time an appropriate part of the original sentence. Similarly, the fact that EL has completed more than 12 months of the two-year Good Behaviour Order without any breaches is to be taken into account. See R v Kekalainen (No 2) [2015] ACTSC 369 at [48] and the cases there cited as well as R v Curtis (No 2) at [54].
1. I cancel the Good Behaviour Order made on 20 February 2014. I consider that I should re-sentence you.
2. I confirm the conviction of aiding and abetting in the commission of the offence of intentionally inflicting grievous bodily harm on the victim on 1 June 2011.
3. I sentence you to 20 months imprisonment to commence from today. That sentence is to be suspended for one year from today.
4. I require you to sign an undertaking to comply with the offender's good behaviour obligations for a period of one year from today.
5. I also require you to pay a fine of $100 within one month.
30. EL, your good character serves you well. You have breached a Good Behaviour Order made when a very serious offence was before the courts and you admitted committing that offence and then you were punished for that. That was, as I have indicated in my remarks, on the basis that I thought you were well able to be rehabilitated, and what has happened since then does not change my view, but you do need to be careful about complying with laws.
31. Traffic laws are often regarded as not really criminal. The fact is that they are criminal laws and breaches of them are crimes and are punished and can attract serious punishment. You have now had a driving while suspended offence, and therefore, under our law, any further driving while suspended will be a second offence, and because there is no expiation of that it lasts forever, and therefore it is more serious.
32. I have moderated the terms of the Good Behaviour Order because you have already completed more than 12 months of that successfully and, of course, you have finished your 100 hours of community service. I have imposed, in addition, a modest fine. I appreciate that, with a family and dependents, money is not obviously going to be easily available to you, but it is a modest fine to mark the disapproval of the Court to your conduct, even though I have extended the Good Behaviour Order so you are still under conditional release for that period of time.
33. You have got a very active daughter. I hope she occupies your time very well. I hope you get great pleasure from her. If you want to be a good role model to her, make sure that you do not breach this Good Behaviour Order and that the rehabilitation that I am satisfied you have achieved will be lasting and will continue.
I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.
R
EL