R v Hart [2016] ACTSC 16

1. The conviction for aggravated robbery, committed on 10 August 2010 be confirmed.

2. It be confirmed that Justin Hart has been referred to this Court because you were unable to complete the periodic detention ordered in the sentence on 7 December 2012.

4. Justin Hart be sentenced to three years and seven months imprisonment to commence on 23 April 2015, to take in to account pre-sentence custody, including the periods of periodic detention that completed.

5. That sentence be suspended today, 2 February 2016, for a period of two years.

6. Justin Hart be required to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT), to be of good behaviour for a period of two years with the following conditions:

(a) A probation condition that he be under the supervision of the Director-General or her delegate for two years or such lesser period as the person supervising him deems appropriate;

(b) A community service condition that he complete 350 hours of community service work within 24 months from today, 2 February 2016.

CRIMINAL LAW - Jurisdiction, practice and procedure - judgment and punishment - sentencing - re-sentencing - aggravated robbery - remitted from the Sentence Administration Board - unable to complete periodic detention - physical injury - delay - delay caused by offender - offender absconded - surrendered to police - no further offending - rehabilitation during intervening period - pro-social life

Crimes (Sentence Administration) Act 2005 (ACT), ss 75(5), 75(1)(f), 82A

Crimes (Sentencing) Act 2005 (ACT), ss 7, 33, Pt 4.2

Alt [2013] QCA 343; (2013) 236 A Crim R 486

Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303

Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506

R v Hart (Unreported, Australian Capital Territory Supreme Court, Refshauge J, SCC 84 of 2011, 7 December 2012)

R v Hart (Unreported, Australian Capital Territory Supreme Court, Refshauge J, SCC 84 of 2011, 17 December 2012)

R v McMahon [2014] ACTSC 280

R v Whyte [2004] VSCA 5

Shore (1992) 66 A Crim R 37

Thompson (1987) 37 A Crim R 97

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

1. The sentencing of offenders for very serious offences can be a difficult exercise, for it requires a court to have regard to the need for deterrent sentences, so as to protect the community by punishing those who commit such crimes, as a clear mark of society's disapproval of such conduct, and to vindicate the victims who have suffered great harm and invasion of their rights.

2. At the same time, however, the sentence must recognise and give effect to the factors personal to the offender and these often point in an opposite direction, especially where there are good prospects of rehabilitation.

3. While French CJ pointed out in Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 at 537, [32] "Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest," a sentencer, however, cannot ignore the other interests I have mentioned, which are required by the legislature to be considered as the purposes of sentencing by virtue of s 7 of the Crimes (Sentencing) Act 2005 (ACT).

4. Such challenges are not infrequent in sentencing and in achieving the instinctive synthesis of such considerations, as pointed out by the High Court in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 611; [75]. It is important to ensure that fair weight is given to all relevant purposes of the sentence.

5. In this context, I am now required to consider the re-sentencing of Justin Lee Hart who, at 8:00 pm on 10 August 2010, entered a liquor shop in Chisholm with a stocking pulled over his head and pointed a black handgun at the sole staff member on duty.

6. He then left the store with $1,514.70 in cash and approximately 25 packets of cigarettes. He left the scene in a car driven by his co-offender. The gun was, in fact, a replica handgun which could not actually place the store attendant at risk, though the attendant, of course, did not know that.

7. As a result of the exercise of civic responsibility by two persons in a passing car, the registration details of the car in which Mr Hart and his co-offender left the scene of the crime were passed to police, who shortly after arrested Mr Hart and his co-offender.

8. He was charged with aggravated robbery, a serious offence against s 310 of the Criminal Code 2002 (ACT), for which the maximum penalty was 2,000 penalty units (at the time, a fine of $275,000) and imprisonment for 25 years.

9. I have set out the details of the offence in my sentencing remarks R v Hart (Unreported, Australian Capital Territory Supreme Court, Refshauge J, SCC 84 of 2011, 7 December 2012) (Hart (No 1)) and I do not need to repeat them. They need to be read with these reasons.

10. Mr Hart initially pleaded not guilty, however, because of the then delays in the courts of this territory, a trial was not listed to commence until 20 August 2012, over two years after the commission of the offence. In the event, Mr Hart pleaded guilty to the offence of aggravated robbery on 17 August 2012. He was sentenced on 7 December 2012, though the sentence had to be varied on 17 December 2012 to comply with sentencing law.

11. The sentence was a term of imprisonment of three years and seven months to commence on 26 November 2012, reduced from four years and six months for the plea of guilty. A sentence was to be served from 7 December 2012 to 6 December 2014 by periodic detention and then suspended for two years. A Good Behaviour Order was made with a probation condition for 12 months and a community service condition to perform 350 hours of community service work within two years. See the Hart (No 1) and the R v Hart (Unreported, Australian Capital Territory Supreme Court, Refshauge J, SCC 84 of 2011, 17 December 2012) (R v Hart (No 2)).

12. Mr Hart commenced serving his imprisonment by periodic detention but a pre-existing back injury became problematic. Although he provided a medical certificate on one occasion when he presented for periodic detention, he was directed to perform work which seriously exacerbated his back problem so that he became unfit for work or periodic detention, experiencing severe back pain which radiated down his left leg. He became virtually bedridden and sought medical assistance.

13. At first he was referred to the Sentence Administration Board which noted the medical disability but directed him to attend, noting that the Director-General had to consider whether he was fit when he attended and that he was not required to undertake physical labour, for which his medical condition made him unfit.

14. Mr Hart then did attend for two further occasions. He basically stayed in his cell for those occasions. He then appeared again before the Board as directed. He had, at that time, a letter from Dr John Broderick which gave a history of a large left-sided posterior disc herniation at L5/S1 which caused lower back pain, radiating down his left leg, supported by a radiological report.

15. Dr Broderick opined that Mr Hart was unable to undertake any physical labour involving bending or lifting more than five kilograms. Mr Hart had been referred to a specialist and it appeared that he was likely to require an operation on his back. This would require three months of post-operative care, incompatible with periodic detention.

16. The Board again adjourned and Mr Hart again attended for two further periods of periodic detention. At that stage, he had performed 24 of the 104 required periods of detention.

17. On the next occasion, 20 August 2013, the Board found that there were exceptional circumstances under s 75(5) of the Crimes (Sentence Administration) Act 2005 (ACT), that prevented Mr Hart completing his periodic detention and, under s 75(1)(f) of that Act, referred the matter to me for re-sentencing.

18. Under s 82A of the Crimes (Sentence Administration) Act, I can re-sentence an offender where such a referral is made by the Board. The section is in the following terms:

82A Re-sentencing offender etc - referral to court

(1) This section applies if the board refers an offender to the sentencing court under section 75 (Board powers - management of periodic detention).

(2) The court may -

(a) if satisfied that the offender should serve the remainder of the offender's sentence in accordance with section 79 (4) (Periodic detention - effect of suspension or cancellation etc) - cancel the offender's periodic detention; or

(b) in any other case - re-sentence the offender for the offence (the relevant offence) for which the offender was ordered to serve periodic detention.

(3) The Crimes (Sentencing) Act 2005 applies to the re-sentencing in the same way that it applies to the sentencing of an offender on a conviction for the relevant offence.

19. The reference from the Board came before me on 26 September 2013. Mr Hart was not present but was represented and the hearing was adjourned to 4 October 2013. I then listed the matter, on that day, for hearing on 15 November 2013 and ordered an updated Pre-Sentence Report under Pt 4.2 of the Crimes (Sentencing) Act. Mr Hart did not appear on that day. He told me in his evidence, that he had mistaken the day, believing that the hearing was the next day. I adjourned to 20 December 2013. Mr Hart also told me that he telephoned his lawyer, Ms H Corey, in the afternoon of 15 November 2013 and she had informed him of the new date. He did not appear on that new date, however, and I issued a warrant for his arrest.

20. It appears that Mr Hart underwent a washout and debridement of a right forearm wound and an ulna nerve repair of 4 October 2013, while awaiting the foreshadowed left sided L4/S1 microdiscectomy which had been recommended to address his back pain. The cause of the former injury was said to be when he had punched a glass window. I have no more details about that.

21. He underwent the back operation on 15 October 2013. It was day surgery and he was discharged on the same day. He told me in his evidence that by November 2013 he was still in pain.

22. He was living in a house with people addicted to drugs. He was fearful that he would be sent to prison on the re-sentencing, so he left and went to live with a friend in Melbourne. He did not have work, remaining at home, acting, as he described it, as a "housewife".

23. The pain improved, however, and while he still had some back pain, he could manage that without prescription medication, using painkillers that could be purchased "over the counter".

24. He met a woman over the internet and they formed a relationship. After about four months, he moved into her house in southeast Melbourne. His partner, with whom he remains in a relationship, has five children from two earlier relationships. The father of one of the children has regular access to his child and, indeed, provided a reference for Mr Hart. The father of the other children has no contact with his children and Mr Hart has become somewhat a surrogate father figure to them.

25. He has found employment with a roofing contractor who also provided a reference. Because of these uncompleted proceedings, he has been unable to obtain a licence for his work but he is working for the contractor in what is quaintly described as a "subcontractor employee". I was told, without challenge, that in such a position he is not required to have a licence. This explains what otherwise would be a concern in the Pre-Sentence Report, which suggested that he had been working "without a roofing qualification as required by Victorian law". His employer described him as "punctual, reliable and a highly skilled tradesman". He is said to have "excellent interpersonal skills and is widely respected amongst other tradesman in the industry". His employer said he is "a very honest and reliable worker" with "a great work ethic, a dedicated and driven employee who focuses on high quality skills and excellent customer service".

26. Mr Hart says that he does not carry out the full work of a roofer but limits his work to what he can manage, namely guttering, because of the lesser loads required and lower heights, protecting him from the risk of falling injury if his back becomes unstable.

27. I have set out Mr Hart's personal circumstances in Hart (No 1) and I do not need to repeat them. They need to be read in conjunction with these reasons. He has, according to the Pre-Sentence Report I received on sentencing, given up the use of drugs and only uses alcohol socially. The Report also states that he showed insight into his actions and the effect that his offending had on the victim. He is assessed in the as at medium-low risk of re-offending. I think that is possibly too high an assessment.

28. It is clear to me that Mr Hart has lived a pro-social and reformed life since he has been in Melbourne. He asserted, without contradiction, that he had committed no offences since this offence over five years ago. That was accepted by the Crown and consistent with the criminal history that was tendered on re-sentencing. Indeed, he said that he had not even incurred a traffic infringement in that time. No doubt, as I then observed, that was in part because of the risk of arrest and extradition by the commission of any offences.

29. He has entered into what he describes as "the most stable relationship [he has] experienced" with his partner, as I have referred to above, at [23]. His partner is sufficiently devoted to him to have travelled to Canberra to visit him in the Alexander Maconochie Centre, which must have been a logistical feat with her five children. She provided a reference and, despite her obvious interest in the matter, I accept that it confirms the nature of the relationship and their commitment to each other. She also confirmed his support for her children. She confirmed too, his evidence of the involvement he has had in the children's extra-curricular activities, including umpiring and scoring for sporting events in which they are involved.

30. His employment, mentioned above at [25]-[26], is also an important factor. He has the support of his parents, who were in court in the re-sentencing, who hosted his partner when she came to visit him and who would allow him to stay with them to complete his sentence.

31. I had a number of character references including, as noted above at [25], from one of his partner's children's father. They described him in uniformly positive terms. He is written of, by them, as "pleasant and friendly", "socially responsible", "a great role model" for his partner's children, "hard working", "caring for others", a person of "good moral character" and "kind hearted, generous and extremely family oriented". Though these descriptions are somewhat at odds with the very serious offence he committed and his decamping to Melbourne, I can see the way in which those events unfolded and they are to be treated seriously but out of character to his real nature, as described by his referees.

32. Mr Hart was not arrested and extradited from Melbourne, even though he was, for a time, receiving Centrelink benefits and so his whereabouts may well have been ascertainable. He returned to Canberra of his own volition and surrendered to police. He explained that he was tired of looking over his shoulder and he also knew that he could not be a role model for the children of his partner while he had unfinished business of the sentencing to be resolved. That in itself is an indication of his character, as I have suggested, and is to his credit. While surrendering to the Court, he applied for bail. I refused bail and he was remanded in custody from 27 October 2015 to today. That is agreed between counsel to have been for 106 days. I note, too, that he spent 11 days on remand before he was originally sentenced.

33. It is, as I have noted above at [27], over five years since the offence for which Mr Hart must now be sentenced was committed. He has committed no further offences in that time of any kind, that have been brought to the attention of the court. Delay is a matter that can properly be taken into account in sentencing but it does depend on the circumstances.

34. I explained in the R v McMahon [2014] ACTSC 280 at [98]- [107] how such delay can be taken into account. The reasons for taking such a matter into account are summarised by the New South Wales Court of Criminal Appeal in Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303 at 306; [16] as follows:

The reason why delay is to be taken into account when sentencing an offender relates first to the fact of the uncertain suspense in which a person may be left; secondly to any demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, to the fact that a sentence for a stale crime does call for a measure of understanding and flexibility of approach: See, in addition to Todd and Mill, the decisions in Harrison (1990) 48 A Crim R 197 at 198-199 and King (Court of Criminal Appeal NSW, 24 February 1998).

35. That, however, has to be moderated when the delay has been caused by the offender. As explained in Thompson (1987) 37 A Crim R 97 at 100:

[The offence] was conduct which the criminal law regards as gravely serious and which the community at large expects to result in a significant measure of criminal judgment.

The balance against those considerations is undoubtedly the circumstance that the respondent has now made an effort to rehabilitate himself, an effort that has been attended by some success. He cannot, however, claim the full benefit of this inasmuch as the freedom he used in order to rehabilitate himself was freedom that flowed from his having absconded from bail. It would be an undesirable precedent to encourage persons to abscond from bail and rehabilitate themselves and then come forward and seek to have that taken into account significantly when they stand for sentence. Rehabilitation already accomplished will, of course, always be taken into account however it may have arisen but, when it has arisen through self taken liberty by a bail absconder, it will be given less significance than if it has taken place simply in the ordinary passage of time.

36. The courts have also cautioned that too great a discount where the offender is the author of the delay has the capacity to encourage absconding. As the New South Wales Court of Criminal Appeal said in the Shore (1992) 66 A Crim R 37 at 47:

there is a clear distinction on the one hand between cases such as Todd where delay occurs because of circumstances entirely outside the offender's control, (which may well include cases where there is a very real issue about guilt and the decision of the accused to plead not guilty, being a decision well justified in the circumstances, is the cause of delay having regard to the burdens upon the court system) and on the other hand, cases such as the present where the only cause of delay was the applicant's flight to avoid the consequence of his admitted criminality. To allow leniency because of delay alone would be, as the learned sentencing judge pointed out, to place a premium on absconding and would be entirely contrary to the public interest. The proper course is that adopted by the sentencing judge in Kukunoski and approved in this court which allows the sentencing judge to recognize the unhappy condition of an accused person living as a fugitive with always the fear that his crime might be brought against him but not to encourage absconding by affording any additional leniency in relation to it.

37. That approach was supported by the Court of Appeal in Victoria in the R v Whyte [2004] VSCA 5.

38. On the other hand, it is clear that, even in those circumstances, rehabilitation remains a factor in mitigation, even if the delay during which it was achieved was caused by the offender. See the Alt [2013] QCA 343; (2013) 236 A Crim R 486 at 497; [56], where it is acknowledged that it is not irrelevant but must be discounted.

39. In this case, I can require Mr Hart to serve the balance of the term of periodic detention that is not served as full-time custody or I can re-sentence him. While the delay has been caused by his absconding, he has, to his credit, achieved the rehabilitation to which I have already referred and, in fact, he voluntarily surrendered himself. It is also relevant that he did not complete the periodic detention through reasons of health and not through failures attributable to his own fault. In my view, I may properly re-sentence him and the Crown did not challenge that decision.

40. I take into account the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act. Deterrence is important, as is punishment and vindication of the victim in this case. I refer in particular, as I have done before, to the victim impact statement which is summarised in Hart (No 1). I also take into account the matters set out in s 33 of the Crimes (Sentencing) Act. As far as I know them, they are set out in these reasons earlier and in Hart (No 1).

41. I note that Mr Hart has been in custody as a consequence of his surrendering to the court and for a significant period of time. I note that he has been assessed as not suitable for a community service condition to a Good Behaviour Order or for periodic detention. I do not consider that periodic detention is appropriate at this time as it will not be able to be imposed for a period of more than five months and that is no longer appropriate. The reason that he was found not suitable for a community service work condition was that he lives in Melbourne. He has indicated to me, however, that he is prepared to remain in Canberra to complete the community service condition if I retain that requirement in the sentence on re-sentencing. The Crown did not demur from that approach.

42. I note that Mr Hart has completed 24 periods of periodic detention. While that is a lenient form of imprisonment, it is imprisonment and I consider that, in re-sentencing, I should give it full value, as it is done in the legislation itself. It seems to me that he would benefit from a slightly longer period of supervision to ensure that the reform is durable.

43. I confirm the conviction for aggravated robbery, committed on 10 August 2010.

44. I confirm that you have been referred to this Court because you were unable to complete the periodic detention ordered in the sentence on 7 December 2012.

46. I sentence you to three years and seven months imprisonment to commence on 23 April 2015, to take in to account pre-sentence custody, including the periods of periodic detention that you completed. Had you not pleaded guilty, I would have sentenced you to four years and six months imprisonment.

47. I suspend that sentence today for a period of two years.

48. I require you to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act, to be of good behaviour for a period of two years with the following conditions:

(a) A probation condition that you be under the supervision of the Director-General or her delegate for two years or such lesser period as the person supervising you deems appropriate;

(b) A community service condition that you complete 350 hours of community service work within 24 months from today.

49. Mr Hart, that is the formal sentencing and although I am sure it is pretty clear to you what that all means, I am obliged to explain that to you. What it means is that I have taken into account all the custody you have already served and backdated the three years and seven months, but I suspend it today.

50. I have made a Good Behaviour Order which requires you to do really three things, one is not to commit any further offences, particularly offences attracting a sentence of imprisonment and that can include traffic offences. If you commit any such offences, you can be brought back before the court and you can be re-sentenced. In these circumstances, that will probably include some form of custody. I have been lenient but leniency ends at some stage.

51. The second condition is a probation condition which requires you to be under supervision. There are two reasons for that, one is a degree of control. It is the punitive element of the sentence but it is also an opportunity for you to have someone independent, and I assume supervision will be transferred to Melbourne, so that, if things are looking dark, there is someone that you can talk to and, in particular, there is someone that has knowledge of services that may be available to you to try to resolve any problems. Life can be difficult with five kids, I was one of five kids, it is very difficult but I expect that, with the past that you have shown, things ought to be able to be resolved and I have every expectation that the criminal courts will not see you again, as, apart from this matter, they have not since 2010.

52. The third condition is the one we talked about yesterday: 350 hours of community service work. I cannot tell Corrective Services how to deal with that. Obviously the sooner you can get to Melbourne and back to your partner, the better for the community and for yourself and the kids, but it is a matter for you. You will have to discuss with Corrective Services how you deal with that, whether you work eight hours a day for seven days a week or not.

53. The only thing that I would re-emphasise, as I indicated yesterday, is that if things get tough and it looks as though it is going downhill, you come back to court. There is always the capacity for Mr Davies to re-list the matter and we can try to sort it out. If you abscond as you did before, you saw what happened, you were in custody for 106 days. And although that was pretty tough, it was appropriate in all the circumstances. If you come back to court, I cannot guarantee that that will not happen, that depends on what has occurred and how it has occurred, but certainly there is every opportunity for you to benefit from your good character and your hard work, your good relationships, the family support that you have, and as I say, I expect that we will not see you again in the criminal courts.

I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.