R v Feeney [2015] ACTSC 88

CRIMINAL LAW - Sentence - re-sentence - breach of good behaviour order

Bail Act 1992 (ACT) s 49(1)

Road Transport (Driver Licensing) Act 1999 (ACT) s 31(2)

1. The offender is before the Court for breach of a good behaviour order imposed on 11 September 2012.

2. The matter has a very long history. On 14 January 2008 he committed the following offences:

(a) make off without payment, contrary to s 323(1) of the Criminal Code 2002 (ACT) (the Criminal Code) (failing to pay for fuel in the sum of $57); and

(b) unlicensed driver- licence never held, contrary to s 31(2) of the Road Transport (Driver Licensing) Act 1999 (ACT).

3. On 17 August 2008 he committed three further offences:

(a) attempt theft (attempting to remove a small amount of cash from a cash drawer in a shop), contrary to s 308 (by virtue of s 44(1)) of the Criminal Code;

(b) fail to appear on bail undertaking in respect of that matter, contrary to s 49(1) of the Bail Act 1992 (ACT); and

(c) intimidate Commonwealth public official (drawing a pair of metal scissors when approached by police in respect of the attempt theft), contrary to s 149.1(1) of the schedule to the Criminal Code Act 1995 (Cth).

4. The offender came before Higgins CJ on 26 March 2010. His Honour imposed sentences of between one month and six months imprisonment for these offences. A six month sentence was imposed for the attempt theft and a one month sentence was imposed for the offence of fail to appear after bail undertaking. The effective total sentence was 11 months imprisonment. That was to be backdated to 15 November 2009 to allow for periods spent in custody. The remainder of the sentence was immediately suspended upon the offender entering into a good behaviour order for a period of three years.

5. Shortly thereafter, in 2010, the offender committed a raft of further dishonesty matters in Western Australia, where he had gone for the purpose of engaging in drug rehabilitation. The attempt at rehabilitation was unsuccessful.

6. The fresh offences constituted a breach of the good behaviour order imposed 26 March 2010. He was extradited back to the ACT, and on 11 September 2012 came before Higgins CJ for re-sentencing. His Honour re-imposed the original sentences. The sentences were backdated 218 days, to 6 February 2012. This was for the purpose of taking into account the time spent in custody, both with respect to the original sentence and the extradition. His Honour did not shorten the good behaviour order, but re-imposed a good behaviour order for a period of three years from 11 September 2012.

7. The offender complied with the good behaviour order for approximately 12 months. On 11 November 2013, he committed a minor common assault on a security guard in the ACT. He had been asked to leave a shopping centre. In attempting to reenter the shopping centre, he shoved the security guard in the chest. The Magistrates Court fined him $400 for that offence.

8. In November 2014 the offender began to be noncompliant with the supervision requirement of his good behaviour order. This behaviour continues. He has proffered various excuses for non-attendance at appointments. Coincidentally, the supervising officer changed to someone with whom the offender does not get along at about the time that the problems commenced.

9. The offender admitted the breaches of committing the common assault on 11 November 2013 and failing to comply with the supervision condition of his good behaviour order.

10. It is also relevant to note that the offender was charged with a robbery that allegedly occurred after Higgins CJ had re-imposed the good behaviour order on 11 September 2012. The offender was remanded in custody for 92 days, and the prosecution then determined that it would not proceed with the charge.

11. The net result is that the offender has spent 218 days in custody for five minor offences committed in 2008, and a further 92 days in custody for unrelated reasons.

12. The breaches have been admitted. I find that the breaches are proved.

13. I consider that it is appropriate to re-sentence the offender.

14. The offences are very old and, individually and collectively, they are relatively minor. The most serious involved an attempted theft of a small amount of cash from a cash drawer in a shop, and the use of scissors to threaten the police officer who tried to arrest him in relation to the attempted theft.

15. Another consideration is the submission that, until 2010, the offender was a drug addict. His criminal history is certainly consistent with that being the case. The Court was informed that the offender has largely rehabilitated. It would have been helpful to have received some evidence in support of this submission. If the offender had complied with his supervision condition, such evidence may have been forthcoming through the supervising officer. Nevertheless, there has been no offending since 2010 except for the common assault, which had nothing to do with drug abuse. The change in criminal conduct is at least corroborative of the assertion that the offender has rehabilitated from his drug addiction. In any event, I am not sentencing him for being a drug addict or otherwise; I am sentencing him for offences committed in 2008.

16. He has served more than adequate time in respect of the matters. I am not pleased that he has committed the breaches, particularly the failure to comply, and I would not wish him to think that noncompliance is to be rewarded by a re-sentence that avoids the need for future compliance. The objective seriousness of the 2008 offences and the offender's subsequent history mean that it is appropriate to impose no more than nominal sentences.

17. In each matter, the offender is re-sentenced to the rising of the Court. The Court will now rise.

I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.