R v Gray [2014] ACTSC 376

2. The good behaviour order made on 13 February 2013 be cancelled.

3. On the charge of aggravated burglary committed on 4 May 2011, Timothy Glen Gray be sentenced to fifteen months' imprisonment to commence on 12 January 2015. That is to be, to that extent, consecutive on the sentence of imprisonment he is currently serving.

4. On the charge of theft committed on 4 May 2011, Timothy Glen Gray be sentenced to twelve months' imprisonment, also to commence on 12 January 2015. That is to be wholly concurrent on the sentence for the offence of aggravated burglary.

5. For three months, that is, from 12 January 2015 to 11 April 2015, that sentence be served by periodic detention; the first period of detention to commence at 7:00 pm on 16 January 2015 when Timothy Glen Gray is to report to the Symonston Periodic Detention Centre, Mugga Lane, Red Hill, ACT.

6. The sentence be suspended on 12 April 2015 for twelve months.

7. Timothy Glen Gray be required to sign an undertaking to comply with the offenders good behaviour obligations, under the Crimes (Sentence Administration) Act 2005 (ACT), for a period of two years from 17 November 2014, with a probation condition that he be subject to the supervision of the Director-General, or her delegate, for a period of two years or such lesser period as the person supervising him considers appropriate, and obey all reasonable directions of the person supervising him as to alcohol and drug treatment and counselling, grief and loss counselling and mental health treatment and counselling.

CRIMINAL LAW - Judgment and Punishment - Sentencing - Re-sentencing following breach of good behaviour order - Breach constituted by conviction for fresh offence

Crimes (Sentence Administration) Act 2005 (ACT), ss 75, 108(2)(b), 110,

Crimes (Sentencing) Act 2005 (ACT), ss 7, 62, 63, 80, Pt 5.3

Guy v Anderson [2013] ACTSC 5, Pt 5.3

Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571

Jacka v The Australian Capital Territory [2014] ACTSC 49

Marston v The Queen (1993) 60 SASR 320

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

R v Gray (Unreported, ACTSC, Refshauge J, 23 February 2011)

R v Gray (Unreported, ACTSC, Refshauge J, 13 February 2013)

Saga v Reid [2010] ACTSC 59

8. The experience of the courts is that offenders who wish to reform often have to overcome significant personal obstacles which cause backsliding, or prevent progress. Mental health impairment and drug addiction are two common challenges that can become a blockage to the working out in the community of a desire and intent to reform expressed to a court.

9. A sentencing court is required to take the personal circumstances of an offender into account when deciding on the appropriate sentence to impose and, no doubt, will give due allowance to human frailty and the challenges faced by an offender.

10. At the same time, a sentencing court must recognise that, where opportunities are given to an offender to reform but which the offender does not take up that must not be ignored and there must be an appropriate response, whether by punishment or otherwise. Not to do so may bring the process of sentencing into disrepute. See Saga v Reid [2010] ACTSC 59.

11. The success of initiatives, such as drug courts, show that realistic recognition, that failure does not always mean that reform has not genuinely been tried or that there is no scope for perseverance in court approved attempts at further or continuing reform, is to be accepted.

12. As I also noted in Saga v Reid (at [89]), "it can be accepted that drug addiction is such that it can take a number of failed attempts before it is successful". This may be applicable to Timothy Glen Gray, who appears for sentencing today, having admitted to breaching a good behaviour order made by me on 13 February 2013 and by which he was bound.

13. On 4 May 2011, Mr Gray, with three other young men committed the offence of aggravated burglary on a residence at Monash and also the offence of theft of property from those premises.

14. He was arrested and appeared in the Magistrates Court on 6 May 2011 and, on 24 June 2011, he entered a plea of guilty and was committed for sentence to this court.

15. On 23 September 2011, I sentenced him for a total sentence of fifteen months' imprisonment but suspended it that day and, as required, made a good behaviour order for two years with a probation condition that he attend the Effective Weed Control Program and a community service work condition to perform forty hours of community service work.

16. At the time, he was already subject to a good behaviour order made by the Magistrates Court for offences of obtaining property by deception and theft. I cancelled those orders and made a further good behaviour order in similar terms.

17. Mr Gray completed the community service work required under the community service work condition and has not been subsequently convicted on any offences of dishonesty, with one exception, to which I will later refer.

18. Unfortunately, he committed three traffic offences on 9 April 2012 and four further traffic offences on 25 April 2012. These included two serious offences of driving whilst disqualified from holding or obtaining a driver licence. They also include an offence of driving a motor vehicle with registration plates calculated to deceive.

19. The latter offence involves an element of dishonesty, but there was no evidence to suggest that Mr Gray actually deceived anyone by his actions. It is perhaps relevant that, on both occasions when he was stopped by police, he was breath tested by a roadside alcohol screening test which was negative.

20. He was sentenced for these offences on 25 September 2013. The sentence included a period of three months' imprisonment to be served by periodic detention, which he completed and a good behaviour order with a community service work condition that he complete ninety hours of community service work, which he certainly commenced and, as far as I can ascertain, completed.

21. Mr Gray admitted the breaches of the good behaviour order that I made and I re-sentenced him on 13 February 2013, recognising that these were offences of a different kind to those previously committed and the absence of any continuing element of "a settled resolve to behave dishonestly" (Marston v The Queen (1993) 60 SASR 320 at 322).

22. Accordingly, I did not impose the sentence that had been suspended. Instead, I cancelled the good behaviour order, as required under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT).

23. On the breach of the good behaviour order made in the Magistrates Court on 21 January 2011, I gave him a warning about compliance with his obligations (s 108(2)(b) of the Crimes (Sentence Administration)).

24. In respect of the offence of aggravated burglary and theft, I imposed the same terms of imprisonment but suspended them and, as required, made a good behaviour order for a further two years with a probation condition and a community service work condition to perform one hundred and fifty hours of community service work and I also imposed a fine of $1,250.

25. In the absence of any evidence, either in the Pre-Sentence Report or from the prosecutor, I assume he has completed those obligations.

26. On 14 April 2014, however, Mr Gray was riding a trail bike on parkland in Holt, ACT. The trail bike was unregistered and, it appears, unregistrable. He was charged with, being a repeat offender, driving whilst disqualified and driving an unregistrable vehicle.

27. He appeared in the Magistrates Court on 2 May 2014. He pleaded guilty on 23 May 2014, when he was unrepresented. There was, it appears, some delay in obtaining Legal Aid but, ultimately, he was represented and later sentenced on 25 August 2014 to four months' imprisonment, of which three months were directed to be served by periodic detention.

28. The charge of driving an unregistrable vehicle was withdrawn. He has served five periods of the periodic detention. He has not served three others but his counsel informed me that he was medically unfit to serve those periods and is to appear before the Sentence Administration Board to seek permission, under s 75(1)(d) of the Crimes (Sentence Administration) Act not to perform those periods. Under s 75(3) he is required to serve an additional period of detention for each period for which he is excused, thus his periodic detention will end sometime after 9 January 2015, which is the commencement of his last period of periodic detention.

29. I detailed the background and circumstances of Mr Gray and the reasons I earlier gave (R v Gray (Unreported, ACTSC, Refshauge J, 23 February 2011) and R v Gray (Unreported, ACTSC, Refshauge J, 13 February 2013)). I do not need to repeat what I said but I take what I did say there into account.

30. In summary, Mr Gray is now twenty-four years old. He suffered the trauma of his father's death by his own hand, for which he blames himself to some extent. He later was to discover a friend's body when that friend also took his own life. This seems to have been the precipitation for his criminal behaviour.

31. He left home at age sixteen and spent some time couch surfing but, by 2013, had his own flat, which he shared with a colleague and was in full-time employment. Although the author of the summary Pre-Sentence Report tendered to me in these proceedings did contact his employer, there is no reference to what was then learned, so I assume that there is nothing remarkable to report.

32. I did note that his employer did refuse him permission to attend on his parole officer because of work demands, which suggest that he is regarded as at least a useful employee. In fact, I had a letter of support from his employer who described him as "a fantastic worker ... polite, courteous and well-mannered when dealing with our customers". He referred to "great feedback" about his work ethics. He also described Mr Gray as trustworthy and honest and that he "plays a big part in the day to day running of the business."

33. He has been promoted to the position of Assistant Manager. A significant matter is that his employer was prepared to hold that job for him during his incarceration at the Alexander Maconachie Centre. Indeed, he visited him twice when he was there. Further, he has invited Mr Gray to spend weekends at his home and his children, he says, "love it" when Mr Gray does attend.

34. Mr Gray is a long-term user of cannabis, having started using it when he was eleven years old. At the peak he was smoking sixteen to twenty cones a day. He has reduced that use and continues to do so. He has completed the Controlling Your Cannabis Information Group of the ACT Health Directorate and has attended at the well-regarded drug rehabilitation agency, Directions ACT, where he has participated in three sessions, including in relapse prevention.

35. He is reported to be well-engaged. He has also to attend the agency's general practitioner and psychologist. This latter attendance may be valuable to help deal with the grief and loss experienced which have contributed to his offending behaviour.

36. He has also been assessed by Headspace, Canberra, a part of the National Youth Mental Health Foundation, based at the University of Canberra. It supports young people from the age of twelve to twenty-five when experiencing mild to moderate mental health concerns or substance abuse issues. The agency employs social workers, psychologists and youth mental health workers and it works with alcohol and drug workers from Directions ACT and the Ted Noffs Foundation and family counsellors from Relationships Australia.

37. Mr Gray's criminal history started in 2009. He has now been convicted of twenty-two offences in six court appearances. Of these, fifteen are traffic offences. These are, of course, criminal offences and failure to comply with the regulation of the movement of motor vehicles can compromise the safety of the public. Nevertheless, judged by the maximum penalty provided for many of them, an important yardstick to indicate the relative seriousness of the offence (Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at 133; [31]), they are not to be regarded as very serious offences.

38. Certainly, apart from the element of dishonesty involved in the offence of driving a motor vehicle with registration plates calculated to deceive, he has not committed any offences of dishonesty and, in particular, seems to have recognised that the offence of aggravated burglary risked leading him into serious criminal activity.

39. I had references from Mr Gray's mother and sister. His sister painted a graphic picture of the traumatic experiences that Mr Gray had suffered. These included the two suicides, but also domestic violence, both witnessed and experienced, and the rejection by his father who he had said made it plain that he did not "want him".

40. She did describe him, however, as having made a significant change in his behaviour. This was, in part, motivated by his unpleasant experience of custody in the Alexander Maconachie Centre. It also underlined his motivation to seek support for his drug use and mental health issues.

41. His mother referred to the difficulties he suffered at school from teasing and his academic challenges and the traumatic family background. She also described the effect of the gaoling imposed by the Magistrates Court has had on him.

42. I had a letter from Mr Gray, in which he acknowledged taking "the wrong turn in life" following the death of his father. It led him to associate him with people engaged in anti-social activities and escalated his drug use. He expressed disappointment in himself for committing the aggravated robbery but pointed out that he has, since then, got a good job which he has now held for about three years and that, in completing his community service work and periodic detention he, has paid his debt to society.

43. With the supports he is accessing, he says he is "geting (sic) my life on track" though he is not there yet.

44. While the early trauma of his life is a matter properly to be taken into account and while it does not necessarily diminish over time (see Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 at 594-5; [43]- [44]), the capacity for it to mitigate the sentences to be imposed for further offending diminishes as he asks for, but does not take advantage of, assistance for these problems.

45. Nevertheless, the change that I perceived he was making does actually seem to be being made. Information from Directions ACT shows more than just intention but actual participation and it is assessed as genuine engagement.

46. The change can also be noted from the differences in assessment by the authors of the two Pre-Sentence Reports that I had. The first Report of 21 July 2014 expressed a guarded and perhaps pessimistic opinion. The author said

Mr Gray is a 24 year old man who has a history of driving-related offences and previous drug use which are reflected of antisocial tendencies and a disregard for previous and current orders as well as the safety of the wider community. It will require further commitment from the offender to engage in targeted interventions to address his medium risk of reoffending.

47. The second Report, however, included the author's opinion in the following terms:

Mr Gray is a 24 year old man with a history of driving unlicensed in unregistered and uninsured vehicles. During the current bail period he has undertaken activities which begin to address mood disturbances and relapse prevention for problematic cannabis use. He is assessed as being at low to moderate risk of reoffending. In order to further reduce this risk, interventions with this service will monitor his engagement and participation in the aforementioned activities and employment.

48. I take into account the purposes of sentencing, set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). In my view, there must be an element of punishment for the failure to take account of the conditional liberty on which I release Mr Gray and which he breached by committing further offences. But, in the circumstances, I am satisfied that rehabilitation is a more important purpose, given what seems to be his readiness to engage with support services now, that will help him to achieve a pro-social lifestyle.

49. I take into account his plea of guilty and his ready admission of the breach of the good behaviour order. I take into account the nature of the offending behaviour and, following what I said in Guy v Anderson [2013] ACTSC 5 at [88]- [91], consider that even though it is the third occasion on which he has committed an offence, while on conditional liberty, the precise circumstances of the commission on this occasion do not require the imposition of the full-time custodial sentence that I suspended.

50. Mr Gray's personal circumstances have been set out in previous sentencing remarks and brought up to date in these reasons. I take them into account.

51. Mr Gray has been found suitable to serve a term of imprisonment by periodic detention and to perform community service work.

52. The good behaviours order made by the Magistrates Court on 21 January 2011 has now expired. I did not cancel them on 13 February 2013 and so did not re-sentence Mr Gray for the offences of theft and obtaining property by deception. Those orders then expired on 20 January 2013, well before the offences which breached the current good behaviour order were committed.

53. I consider that no other sentence than a period of imprisonment is appropriate, but that it should be served by periodic detention. I have given some thought about how to structure the sentence. It is, for example, not appropriate for the period to be concurrent with the current sentence of imprisonment being served by periodic detention.

54. I was initially concerned that this could be complicated because of his current three periods of non-performance. The legislation also has some constraints. Under ss 62 and 63 of the Crimes (Sentencing) Act, a sentence of imprisonment must commence on the day it is imposed or, if there has been a period of pre-sentence custody, at such earlier date as is appropriate to take into account of that period.

55. Under Pt 5.3 of the Crimes (Sentencing) Act, however, I can make a sentence that I impose cumulative upon a sentence that is, when I impose it, already being served by Mr Gray. That is, I can make the sentence consecutive or partly consecutive and partly concurrent on that earlier sentence. This permits me to impose a sentence that starts at a future date and, under s 80, that applies also to periodic detention.

56. It seems to me, however, that the use of the word "consecutively" in Pt 5.3, means that it cannot start later than the last day on which the current sentence ends. That gave me some concern because of the imminent appearances of Mr Gray before the Sentence Administration Board.

57. On further consideration, however, that does not seem to me to create an actual problem. Even if the Board excuses Mr Gray, because of his mental condition, from the performance of the three periods of periodic detention he has not served, he will have to serve additional periods of detention at the end of the otherwise completion of that period.

58. If the Board does not excuse him then the three breaches means that he will have to serve the balance of the period in full-time custody and the Board will validly (see Jacka v The Australian Capital Territory [2014] ACTSC 49) be required to cancel the periodic detention order. That sentence will be served in full-time custody but will end on the same day as the periodic detention would otherwise end.

59. Presently, Mr Gray's last period of periodic detention starts on 9 January 2015, thus he will be detained until 11 January 2015. I consider that I can start the period of imprisonment, therefore, on 12 January 2015.

1. I find that you breached the good behaviour order I made on 13 February 2013.

3. On the charge of aggravated burglary committed on 4 May 2011, I sentence you to fifteen months' imprisonment to commence on 12 January 2015. That is to be to that extent consecutive on the sentence of imprisonment you are currently serving. Had you not pleaded guilty, I would have sentenced you to twenty months' imprisonment.

4. On the charge of theft committed on 4 May 2011, I sentence you to twelve months' imprisonment, also to commence on 12 January 2015. That is to be wholly concurrent on the sentence for the offence of aggravated burglary.

5. I direct that for three months, that is, from 12 January 2015 to 11 April 2015, that sentence is to be served by periodic detention. The first period of detention to commence at 7:00 pm on 16 January 2015 when you are to report to the Symonston Periodic Detention Centre, Mugga Lane, Red Hill, ACT.

6. The sentence is to be suspended on 12 April 2015 for twelve months.

7. I require you to sign an undertaking to comply with the offenders 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 subject to the supervision of the Director-General, or her delegate, for a period of two years or such lesser period as the person supervising you considers appropriate, and obey all reasonable directions of the person supervising you as to alcohol and drug treatment and counselling, grief and loss counselling and mental health treatment and counselling.

62. Mr Gray, that is the formal order that I have pronounced and I am obliged now to explain it to you. What I have done is I have cancelled the good behaviour order which I made in February last year and I have reimposed the same sentence, which is fifteen months' imprisonment, but I do not require you to spend any time in full-time custody. I have set a period of three months that follows on from the current periodic detention you are serving, to serve it by periodic detention. I have then suspended the sentence for a period of twelve months but made a good behaviour order for two years, but that is from today.

63. That good behaviour order - you have been under now three of them, so you know what that means, but I do remind you - means that if you commit any further offences punishable by imprisonment for twelve months, then you can be brought back before me and I can re-sentence you or I can send you to gaol for the twelve months that is currently left over after you serve your periodic detention.

64. I have also given power to the person supervising you, under that good behaviour order, to give you directions about drug treatment and counselling, grief and loss counselling and mental health treatment and counselling. If you stick with Headspace and with Directions ACT, then there should be no reason for that to be activated but if you breach any of those directions you can also be brought back before me and I can cancel the good behaviour order, and either send you to gaol for twelve months or re-sentence you.

65. You are running out of options now. You really have to get your life in order. You are doing so well at work. It is strange that you are not doing so well in the other areas of your life and, therefore, you really do need to engage with Headspace and Directions ACT, because you can be a useful member of the community. There are a lot of people out there who support you and who think that you have the capacity to live a good and useful life and that includes the kids of your employer. You owe it to them, and to your mother and to your sister and to the others who are supporting you, to really work this time at it, because the chances of you not spending time in custody, if you breach this good behaviour order, are pretty slim. I do not make any guarantees but you never know what life produces.

66. I remind you also that, in relation to your periodic detention, if you miss two periods of periodic detention then the Sentence Administration Board have no alternative but to cancel that and send you to full-time custody. If, as you have said to me, through your letter and through telling your sister and your mother, you really do not want to go back to gaol then it is in your own hands. It is up to you now. No driving at all, no robberies, no thefts, no anti-social behaviour.

67. You can do it. You need some assistance. There are good agencies out there and which you have accessed at the moment but you really need to work hard at engaging with them and ensuring that you do not appear in the criminal courts again. This is your chance. It is probably your final chance. You should treat it as your final chance if you do not want to go to gaol again.

I certify that the preceding sixty seven [67] numbered paragraphs are a true copy of the Judgment of his Honour Justice Refshauge.