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Legislation Cited: Bail Act 1992 (ACT), s 17 Crimes (Sentencing) Act 2005 (ACT), Parts 4.2B and 5.4A, ss 7, 12A(1)(a) and (b), 12A(3), 12A(2), 12A(4), 12A(9), 33(1)(za), 46J, 80U Crimes Act 1900 (ACT), s 375 Criminal Code 2002 (ACT), s 318(2) Legislation Act 2001 (ACT), ss 145, 145(b) Magistrates Court Act 1930 (ACT) ss 88A, 90A Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 22A(2)(a), 34(2) Road Transport (Driver Licensing) Act 1999 (ACT), ss 32(1)(a), 32(5) Supreme Court Act 1993 (ACT), s 68CA, Part 8

Cases Cited: Ashdown v The Queen [2011] VSCA 408; 37 VR 341 Beckwith v R (1976) 135 CLR 569 Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 International Litigation Partners Pte Ltd v Chameleon Mining NL (Receivers and Managers Appointed) [2012] HCA 45, 246 CLR 455 IW v The City of Perth (1997) 191 CLR 1 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Biddle [2018] ACTSC 247 R v Forrest (No 2) [2017] ACTSC 83 R v LF [2018] ACTSC 42 R v Massey; R v Ontong; R v Ceissman [2018] ACTSC 352 R v NN [2018] ACTSC 43 R v Norton [2019] ACTSC 111 R v Roux (No 2) [2015] ACTSC 361 R v Taylor [2015] ACTSC 122 Victims Compensation Fund Corporation v Brown [2003] HCA 54; 77 ALJR 1797

Texts Cited: Explanatory Statement to the Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2019 (ACT) (ACT Parliamentary Counsel 2019) Supplementary Explanatory Statement to the Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2019 (ACT) (ACT Parliamentary Counsel 2019)

Parties: The Queen (Crown) Jordan Matthew Henry Massey (Offender)

Representation: Counsel K Reardon (Crown) B Morrisroe (Offender)

Solicitors ACT Director of Public Prosecutions (Crown) Boxall Legal (Offender)

File Number(s): SCC 133 of 2020; SCC 134 of 2020

REFSHAUGE AJ:

1. The sentencing of young people with depressingly long criminal histories is always difficult, especially when occurring at a point where realistic prospects of rehabilitation are evident. It requires a careful and thoughtful approach which continues to protect the community, as far as sentencing can, but promotes that rehabilitation, while not minimising the harm to the community or to victims that have suffered from the crime for which sentence must be imposed.

2. These are purposes for which the Legislature has established for sentencing under s 7 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), though a court is not required to give effect to each of these purposes and may give different weight to each.

3. I bear all this in mind when sentencing Jordan Matthew Henry Massey for: (1) dishonestly driving a motor vehicle without the owner's consent, the primary and most serious offence; (2) driving that motor vehicle whilst disqualified; and (3) refusing to provide an oral fluid sample when so directed. All the offences were committed on the same day, 18 March 2020, in the same course of conduct, save for the refusal to provide the oral fluid sample.

Facts

4. On sentencing, a Statement of Facts was tendered by the Crown, without objection, and was expressly accepted by Mr Massey. I accept those facts as constituting the offences with which Mr Massey has been charged. On 10 December 2019, Mr Massey was disqualified from holding or obtaining an ACT Driver Licence for two years from that date when he was convicted, and sentenced for an offence of driving on 11 March 2019 whilst disqualified.

5. Despite this, Mr Massey then drove a red Holden Colorado utility vehicle to the Wanniassa shops at about 2:00 pm on 18 March 2020. He parked the vehicle there. That vehicle had been reported stolen at about 7:00 am that morning. No evidence disclosed that Mr Massey had taken the vehicle, or what had happened to it in the intervening nine hours. This explains the nature of the primary offence.

6. Mr Massey and his female passenger, described as approximately 19-years-old, alighted from the vehicle and walked to the shops. At the Wanniassa Shopping Centre some members of the public recognised the vehicle as the stolen utility and blocked it from driving away by parking a truck behind it. They then contacted the police.

7. When Mr Massey and his companion returned from the shops, the members of the public demanded the keys to the vehicle from Mr Massey, which he gave to them, though they let him get some personal property from it. Mr Massey then tried to leave the carpark, but was directed by the members of the public to stay there, which he did.

8. Police arrived shortly after and arrested Mr Massey for driving the stolen vehicle and directed him to undergo a drug screening test. He refused to do so. He was taken to City Police Station where he was again directed to provide a sample of oral fluid for analysis, but again refused. Despite being informed that such a refusal constitutes an offence, he maintained his refusal.

9. Mr Massey declined to participate in an interview with police. The owner of the motor vehicle told police that he did not give Mr Massey permission to drive the vehicle. I was not informed of where the owner lived, nor where the vehicle was parked when it was stolen. Given this evidence, it is clearly not possible to find that Mr Massey was the thief of the motor vehicle, nor how far or how long it had been driven. I may have suspicions, but they must pay no part in the sentencing.

The Proceedings

10. After his arrest, Mr Massey was refused bail by police, and on 19 March 2020, the next day, appeared before a Magistrate. He was, of course, required to be taken there ‘as soon as practicable’: Bail Act 1992 (ACT) s 17. I assume, as often happens, that the process of taking Mr Massey to the ACT Watch-House and then processing him, would have taken until after the Court had risen for the day on 18 March 2020.

11. Mr Massey was charged with these offences when appearing before the Magistrate. Bail was refused and he was remanded in custody. After a further adjournment, Mr Massey appeared in Court on 28 May 2020 and entered pleas of guilty to each offence. On 22 June 2020, he was committed with his consent to this Court under s 90A of the Magistrates Court Act 1930 (ACT) (the Magistrates Court Act) on the indictable charge of dishonestly driving a motor vehicle without the owner's consent.

12. It was suggested that the Court relied on s 88A of the Magistrates Court Act to proceed as it did. The Court also noted on the Bench Sheet that the committal was, 'solely for the purpose of [the] D&A list [Drug and Alcohol Sentencing List].' I am not sure under what provision such a limitation, if such it was, could be made or what effect it could have. I have not been able to find any basis for making it. It seems to me that a committal, once made, is made in the ordinary way, and clearly this Court can proceed as it would with any other committal of an indictable offence, subject, of course, to other provisions of the Act.

13. In fairness, it may well be that the intention was merely to indicate that the purpose of the parties and the Court, was to invite the Court to proceed under Parts 4.2B and 5.4A of the Sentencing Act and, in particular, to make a Drug and Alcohol Treatment Order (a treatment order) under s 12A. But for this intention, the committal may otherwise not have been made.

14. That is relevant because, although the offence of dishonestly driving a motor vehicle without consent is an indictable offence, it can, if Mr Massey consents, be dealt with summarily under s 375 of the Crimes Act 1900 (ACT). The records available to me do not show whether that was, in fact, the case, and that his consent was declined, but the notation that the committal was 'on the defendant's application and with the prosecutor's consent' suggests that he did not consent. This has consequences if I find that Mr Massey is not eligible or not suitable for a treatment order: see Sentencing Act s 80U.

15. The other charges, being related offences (s 68CA of the Supreme Court Act 1933 (ACT) (the Supreme Court Act)), were referred to this Court also to be dealt with under Part 8 of the Supreme Court Act.

16. When Mr Massey appeared in this Court on 26 June 2020, the Court ordered a Drug and Alcohol Treatment Assessment under s 46J of the Sentencing Act. A Forensic Mental Health Assessment was undertaken, and a report dated 21 July 2020 was submitted to the Court.

17. Canberra Health Services assessed Mr Massey on 3, 8 and 22 July 2020 and, as a result, prepared a Drug and Alcohol Sentencing List Suitability Assessment Report dated 28 July 2020, which was also submitted to the Court. ACT Corrective Services interviewed Mr Massey on two occasions, 6 and 13 July 2020, and prepared a report as a result of those interviews. The report is dated 6 August 2020.

18. All three reports detailed various aspects of Mr Massey's personal history, the examinations undertaken, and the resulting findings that the reporter made. Each recommended that Mr Massey was suitable for a treatment order.

19. No objection was taken to the admission of these reports, nor was any challenge made to their contents. I have read them carefully and considered their contents. They are comprehensive and helpful reports, and I will rely on them. The Issue

20. Clearly, the question before the Court is whether I should make a treatment order. In order to do that, I must first be satisfied that Mr Massey is eligible and suitable for such an order to be made. In this case, the issue of whether he is eligible has been expressly raised by the Crown.

Eligibility

21. Section 12A of the Sentencing Act empowers this Court to make a treatment order. The section only applies, however, if three conditions are met. They are set out in s 12A(1) of the Act as follows:

12A Drug and alcohol treatment orders (1) This section applies if — (a) an offender pleads guilty to an eligible offence; and Note A reference to an offender in this section does not include a young offender (see s 8 (1)(b)). (b) the Supreme Court convicts the offender of the offence and imposes a sentence of imprisonment of at least 1 year but not more than 4 years; and (c) the offender is not subject to a sentencing order for another offence.

22. The conditions in paragraph (a) and (c) have been met. Mr Massey has pleaded guilty to the committed offence and, incidentally, to the related offences. At issue, however, is the condition in paragraph (b). The Crown says that Mr Massey will not be sentenced to a term of imprisonment of at least one year but will be sentenced to a lesser term, while Mr Massey says he will be sentenced to a term of imprisonment for one year or more.

23. This is a curious position, where the Crown is urging a more lenient sentence than the prisoner is urging, and the prisoner urges a more severe sentence. In order, therefore, to determine this issue I must proceed to determine the sentence that, absent a treatment order, I should impose. To do so, I must determine the nature and seriousness of the offence, and the circumstances of Mr Massey that are relevant to this sentence.

24. There are two issues to be considered: (1) which of the sentences for the three offences are to be considered; and (2) what sentence to impose. Because of the course of the proceedings, a critical issue is whether I should make a treatment order in sentencing Mr Massey. In order to do that, I must be satisfied that Mr Massey is both eligible and suitable, and that such an order should be made.

25. Ordinarily, that requires me to proceed to sentence Mr Massey and then determine that issue. In this case, however, it is appropriate that I first consider the question of Mr Massey's eligibility for such an order.

26. In order to understand the issue, it is necessary to have regard to the terms of certain subsections to s 12A of the Sentencing Act. I have set out the terms of sub-s (1) above at [21]. Sub-ss (3), (4) and (9), also relevant, are in the following terms: 12A Drug and alcohol treatment orders ... (3) If the court makes a treatment order for an offence (the primary offence), the court may extend the order to an associated offence, but only if the total period of imprisonment liable to be served under any consecutive sentences imposed for all offences to which the order relates, is not more than 4 years. (4) To remove any doubt –– (a) if the court extends a treatment order to an associated offence, the offender must not be subject to more than 1 treatment order for all offences at any particular time; and (b) an associated offence to which the court extends a treatment order may be an offence for which the court imposes a sentence of imprisonment of less than 1 year; and (c) sentences for multiple offences may be served concurrently or consecutively (or partly concurrently and partly consecutively), subject to sub-s (3). ... (9) In this section: associated offence, for an extended treatment order, means an eligible offence— (a) to which the offender pleads guilty; and (b) for which the offender is sentenced to imprisonment; and (c) dealt with in the same sentencing proceeding as the primary offence. eligible offence means an offence that is not— (a) a serious violence offence; or (b) a sexual offence. sentencing order means any of the following: (a) an order for imprisonment by full-time detention; (b) a suspended sentence order; (c) an intensive correction order; (d) a deferred sentence order; (e) a parole order; (f) an order under a law in force in Australia that corresponds to an order mentioned in paragraphs (a) to (e). serious violence offence means an offence against any of the following provisions of the Crimes Act 1900: (a) section 12 (Murder); (b) section 15 (Manslaughter); (c) section 19 (Intentionally inflicting grievous bodily harm); (d) section 20 (Recklessly inflicting grievous bodily harm). sexual offence means an offence against the Crimes Act 1900, part 3.

27. In this case, Mr Massey meets the criteria sets out in s 12A(1)(a), that is, he has pleaded guilty to the offence, indeed all the offences, and he is not subject to a sentencing order for another offence. The criterion in s 12A(1)(b), however, is very much in issue.

28. While not conceding that I would not sentence Mr Massey to a term of imprisonment for one year on the charge of dishonestly driving a motor vehicle without consent, Ms B. Morrisroe, who appeared helpfully for Mr Massey, submits that the one year period referred to in s12A(1)(b) refers to the total sentence for all offences. That is to say, even were I to sentence Mr Massey to a period of less than 12 months for the primary offence, I would, having regard to the principles of cumulation and concurrency, impose a sentence the total imprisonment for which would exceed one year.

29. Ms K. Reardon, who ably appeared for the Crown, challenged that construction and in helpful submissions said that at least one offence, which would be the primary offence, had to meet the ss 12A(1)(a) and (1)(b) criterion.

30. Ms Morrisroe's submission has resonance to the comment of McHugh, Hayne and Callinan JJ in Pearce v The Queen [1998] HCA 57; 194 CLR 610, where their Honours said, at [45]:

To an offender, the only relevant question may be “how long”, and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender.

31. That is, with respect, a perceptive comment about the views of an offender. Their Honours, however, then pointed out that to such judges, that view was wrong. In short, a proper sentence had to be imposed for each offence, and then questions of cumulation and concurrency had to be properly considered, as well as, of course, totality.

32. That decision, however, does not decide the issue, which is essentially a matter of statutory construction. Does the statute refer to the sentence for one offence, or for all offences? The arguments in favour of reference to sentence for all the offences seems to be as follows.

33. In the first place, s 145(b) of the Legislation Act 2001 (ACT) (the Legislation Act) provides that in an Act, ‘words in the singular number include the plural’. Thus, 'offence' in s 12A(1)(a) and (b) of the Sentencing Act should be interpreted as including 'offences'. Further, any ambiguity in this legislation should be approached with a recognition that this is a beneficial or remedial statute. Thus, the Explanatory Statement to the Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2019 (ACT), which introduced s 12A and the other provisions relating to treatment orders into the Sentencing Act, explains:

The development of a DAC [Drug and Alcohol Court, the name then used for these provisions] aligns with a number of other government policies and commitments that focus on reducing recidivism and addressing rates of incarceration. Drug and Alcohol Courts have been operating in other Australian and international jurisdictions with clear benefits to offenders, their families, and the wider community.

34. Ten important such benefits were then listed. The legislation is clearly remedial or beneficial. Thus, as Brennan CJ and McHugh J said in IW v The City of Perth (1997) 191 CLR 1 at 12: [B]eneficial and remedial legislation … is to be given a liberal construction. It is to be given “a fair, large and liberal” interpretation rather than one which is “literal or technical”. (footnotes omitted)

35. Their Honours, however, continued:

Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.

36. Similarly, Gummow J said in the same case at 39:

There is ample authority that remedial legislation … is to be accorded “a fair, large and liberal” interpretation rather than one which is “literal or technical”.

37. Nevertheless, the legislation must be read as a whole and such a term must be construed in the context in which it appears. Thus, this construction is subservient to the primary duty of a court on construing a statute, namely, to give their words the proper meaning.

38. As McHugh ACJ, Gummow, Kirby and Hayne JJ said in Victims Compensation Fund Corporation v Brown [2003] HCA 54; 77 ALJR 1797 at [33]:

To begin consideration of issues of construction by positing that a “liberal”, “broad”, or “narrow” construction will be given tends to obscure the essential question, that of determining the meaning the relevant words used require. (footnote omitted)

39. Similarly, in International Litigation Partners Pte Ltd v Chameleon Mining NL (Receivers and Managers Appointed) [2012] HCA 45, 246 CLR 455, the Court held that the statutory framework is not enlarged merely because remedial legislation authorises a particular approach to determining the means of a provision.

40. Finally, I note, as was pointed out in Beckwith v R (1976) 135 CLR 569, a penal statute should ordinarily be construed in favour of the accused, though such a rule of construction is a rule of last resort and it is necessary to apply the ordinary rules, but if a provision is still ambiguous then it may be resolved in favour of the accused.

41. It must further be noted that the rule of construction set out in s 145 of the Legislation Act is a non-determinative provision. That is to say, under s 155 of that Act, it may be displaced either expressly or by a contrary intention. This is in contrast to a determinative provision which may only be displaced expressly or by a manifest contrary intention. Accordingly, it is necessary to consider the actual terms of the legislation carefully and construe the Act as a whole, its context, and the relevant rules of construction.

42. So far as ss 12A(1)(a) and (b) of the Sentencing Act is concerned, it is clear from the use of 'the offence' in paragraph (b) that it is the same offence referred to in both paragraphs. Nevertheless, applying s 145 of the Legislation Act, this could still apply to multiple offences. I note, however, that the reference in paragraph (b) is 'imposes a sentence of imprisonment' without specifying 'for the offence', though ordinarily that would be implied. Certainly implying the requirements of Pearce v The Queen would make that implication all the more stronger.

43. I turn then to ss 12A(3) and (4) of the Sentencing Act. These seem to reinforce that implication. If 'sentence' in s 12A(1)(b) encompasses the total sentence for multiple offences, then sub-s (3) seems unnecessary, since that would already be covered. Subsection (4) strengthens that conclusion. The only approach that could undermine this conclusion is if multiple offences could all be classed as 'primary offence[s]'. That sits uneasily with sub-s (4), for it seems clear that paragraph (b) of sub-s (4) implies that an offence for which a sentence of less than a year's imprisonment is imposed cannot, absent this provision, be subject to a treatment order.

44. It would not be sensible, then, to construe s 12A(1)(b) as permitting two or more sentences which were cumulated to make a sentence of more than one year's imprisonment to support a treatment order since that provision would only be necessary if the aggregate sentences to achieve the one year's imprisonment were made up of primary offences only.

45. That would seem even more odd since it fails to provide any clear understanding of what is a primary offence and what is an associated offence. The definition of 'associated offence' in s 12A(9) does not assist this interpretation. Indeed, it provides, on that interpretation, namely that the word 'sentence' in s 12A(1)(b) is the total aggregated sentence for multiple offences, and provides no means of distinguishing the primary offence from the associated offence or offences.

46. The natural interpretation is that there is one primary offence that must attract a sentence of between one and four years. Other offences can be the subject of a sentence at the same time. These may attract individually a sentence of less than one year's imprisonment, but when cumulated with the sentence for the primary offence, must not result in a sentence of more than four years' imprisonment.

47. This is reinforced by the Supplementary Explanatory Statement to the Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2019 (ACT) which related to amendments to that Bill moved by the Attorney-General, and which inserted ss 12A(3) and (4) in their present form. The statement says:

This amendment, together with amendment 6 [which amends the definition of 'associated offence'], clarifies the operation of the provisions to allow a DATO [that is, a treatment order] to apply in respect of multiple offences. In particular, it clarifies that a DATO can apply in respect of a primary offence, which must be an offence for which the sentence of imprisonment imposed was between one and four years, and other eligible offences dealt with in the same sentencing proceeding. While the eligible offences to which a single DATO applies can be ones for which sentences are to be served consecutively or concurrently, the total period of imprisonment liable to be served for all sentences cannot be more than four years. This amendment also clarifies that so long as one eligible offence carries an imprisonment period of between one and four years, the DATO for that offence can extend to an eligible offence for which the penalty of imprisonment is less than one year.

48. In my view, having regard to all the relevant issues raised as to the construction of the legislation, when an accused is facing multiple sentences for which he or she has pleaded guilty, a treatment order can only be made if a sentence of imprisonment of one year or longer, but not more than four years, is imposed for at least one of those offences for which the accused is to be sentenced.

49. The other offences can be subject to the order, even if they are sentences of less than one year's imprisonment, so long as the aggregate term of imprisonment for all offences does not exceed four years. Sentencing

50. I turn then to the sentence that should be imposed. Mr Massey faces three offences. The first, dishonestly driving a motor vehicle belonging to another without their consent, is an offence against s 318(2) of the Criminal Code 2002 (ACT) and attracts a maximum penalty of 5 years' imprisonment, or a fine of $80,000, or both. I shall refer to this as the primary offence.

51. The second offence is refusing to provide an oral fluid sample for analysis as a repeat offender, an offence contrary to s 22A(2)(a) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) and attracts a maximum penalty of 12 months' imprisonment, or a fine of $4,800, or both. This offence carries with it a default disqualification period of 5 years or a shorter period of at least 12 months: s 34(2) of that Act.

52. Third and finally, Mr Massey is charged with driving whilst disqualified as a repeat offender, an offence contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT), for which the maximum penalty is 12 months' imprisonment, or a fine of $16,000, or both. As a first offender, this offence carries a minimum disqualification period of 24 months: s 32(5) of that Act.

53. As the High Court has made clear in Markarian v The Queen [2005] HCA 25; 228 CLR 357, it is important to have regard to the maximum penalties as they provide a yardstick against which to measure the seriousness of the offence. By this measure the primary offence is a relatively serious offence.

54. As I pointed out before, a motor vehicle is, after a home, often the most expensive purchase of a family, and in Canberra many people are dependent on it as their appropriate transport: see R v Forrest (No 2) [2017] ACTSC 83 at [75] and R v Roux (No 2) [2015] ACTSC 361 at [78]. This may, at least in part, explain the serious view taken of the offence by the legislature.

55. There were, in this case, few of the often seen aggravating features such as the loss of or damage to the vehicle, its use at the time for other offending, such as burglary, or specific inconvenience or loss caused by the taking of the motor vehicle from the owner, which seems to be an aggravating feature.

56. There are some differences of opinion amongst judges as to whether the taking of the motor vehicle is more serious than merely driving it. R v Biddle [2018] ACTSC 247 suggests that it is, while R v Massey; R v Ontong; R v Ceissman [2018] ACTSC 352 suggests that it is not. I have not heard argument or researched the issue in detail, but am inclined to think that there is little, perhaps only a little, difference in culpability between the two versions of the offence. Nevertheless, Mr Massey was the driver, rather than a mere passenger, which does appear to be an aggravating feature: R v NN [2018] ACTSC 43.

57. The evidence was unclear about how long Mr Massey had been driving the vehicle. It could neither be proved that he took the vehicle in the first place, hence the nature of the charge, or how long he was in possession of it in the nine hours since it had been taken, nor was it possible to say how long he had actually driven it. In the circumstances of the detection of the offence and the use of the vehicle, it may be assumed to the requisite degree that he would have continued to use the vehicle indefinitely or, as happened, until he was detected: see R v LF [2018] ACTSC 42.

58. It is noteworthy too that the offence seems to have been relatively prevalent for some time. The ACT Sentencing Database, which may be a fairly blunt instrument for showing this, indicates that except for a high of 26 such offences committed in 2014 and dealt with by this Court, the number of offences committed to this Court for sentence between 2013 and 2018 were between 11 and 13 each year, though it increased from 6 in 2012.

59. A similar pattern was disclosed in the database's records for the Magistrates Court, with 13 and 21 offenders dealt with by that Court between 2012 and 2013 respectively, and 73 and 49 in 2017 and 2018 respectively.

60. As to the offence of driving whilst disqualified, this too is a serious offence. Indeed, it has been said that the punishment should be imprisonment: see the summary of such judicial statements in Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 at [36]. In that case, at [37] to [42], I considered the nature and circumstances of the offence and matters of aggravation. Thus, in this case it could well be said that Mr Massey's driving was contumacious; that is, clearly in defiance of the court order. He had been disqualified from obtaining or holding a licence just over three months previously. Also supporting this inference is the fact that the vehicle was being driven by Mr Massey without the owner's consent; a fact he clearly knew.

61. The fact that there seems to be no evidence about how far Mr Massey had driven the vehicle means that this would not be an aggravating factor. Although used in conjunction with him driving a vehicle dishonestly without consent makes it somewhat more serious, it is not aggravating as if it had been used for the common commission of burglary or aggravated burglary.

62. Finally, the offence of refusing to provide a sample of oral fluid for analysis seems to me a relatively typical version of the offence, notwithstanding that Mr Massey was a repeat offender. That he was expressly advised of the criminal consequences of refusal seems to suggest a defiant refusal, but I am not able to say that this was not the usual procedure followed by the police, something that I would expect and applaud.

Subjective Circumstances

63. As noted above, I had helpful and comprehensive reports which set out Mr Massey's personal circumstances. Mr Massey was born in Canberra twenty years ago, the only child of his parents' union, though he had three stepsiblings. His childhood was marked by instability, as his parents both spent significant periods of time in custody. He was largely brought up by his extended family. He has had little contact with his father, but has continued contact with his mother.

64. He had some private counselling for about two years when he was eight years old, which may have been associated with his difficulties at school, though he had no formal diagnosis of any disorder. He struggled at school, especially with difficulty in paying attention. He left school at the end of Year 9 and appears to have had no further education.

65. He went to Perth when he was 13 to live with his uncle, but soon left as a result of physical abuse and 'lived with his mates' but later relocated with his uncle to Queensland. He returned to Canberra when he was about 17 and has remained here ever since. He initially lived with his maternal grandfather, but he was later asked to leave and moved in with a stepsister, though the number of children there caused some challenges. Since he has been released on bail on 24 July 2020, he has been residing at the Justice Housing Project.

66. Mr Massey worked for a few months with a renovation business of his maternal grandparents, but has otherwise had no employment.

67. Mr Massey started drinking alcohol and using illicit drugs when he was 13. He predominantly used cannabis, which he consumes regularly, and methamphetamine (ice). He has used other substances, but not significantly other than amphetamines, which he smoked everywhere, using 1 or 2 grams a day. He acknowledges that this use is problematic. He is assessed as likely to have a severe substance use disorder.

68. Although drinking alcohol since age 13, he reduced his consumption when he was about 18 and does not seem to have ongoing issues with alcohol. Mr Massey once attempted suicide when in police custody, apparently because of being arrested on his birthday, but denies any current suicidal ideation, and has been assessed as having no current mental illness symptoms. His mental health will not currently impact to a significant degree on his ability to comply with a treatment order. He has expressed a wish to participate in drug rehabilitation and has consented to being subject to a treatment order.

69. Mr Massey has a depressing criminal history for one so young. [Redacted for legal reasons]. Since he has turned 18 years old, he has been convicted or found guilty of 15 offences, many more serious offences suggesting an escalation in his criminality.

70. [Redacted for legal reasons], there were a number of dishonesty offences, but also many traffic offences, a number of which involved an element of dishonesty, one offence of violence, and two offences directly drug-related, though many of the dishonesty offences were no doubt associated with his drug addiction.

71. Significantly for this sentencing exercise, he has twice been convicted of dishonestly riding in or driving a motor vehicle without consent of the owner, for which he was sentenced to six and nine months’ imprisonment respectively. He has also been convicted of driving whilst disqualified, for which he was sentenced to two months' imprisonment, and of driving with prescribed drug in his oral fluid or blood, for which he was fined.

Sentencing Practice

72. Section 33(1)(za) of the Sentencing Act requires a sentencing court to have regard to ‘current sentencing practice’. This was discussed in Ashdown v The Queen [2011] VSCA 408; 37 VR 341, at 395; [151], wherein Ashley JA explained that it provided a ‘window on the accumulated experience of sentencing judges’.

73. It thus provides an opportunity for there to be consistency in sentencing; an important value to be respected. We are fortunate in this Territory to have the ACT Sentencing Database which provides statistics on the sentencing of offences. Of course, there are limits on the value of statistics, which are a very broad analysis of sentences, though the database also collects some information on some of the characteristics of the offence and the offender.

74. In addition, where made available, it also links electronically to the Sentencing Remarks of Supreme Court decisions. Unfortunately, for reasons I do not understand, quite a number of those remarks are not available on the database. The analysis can, of course, be complicated by the relevant factors, so it is desirable to have regard to the sentencing remarks themselves.

75. While the range of objective seriousness is perhaps in a more limited range, the subjective factors, especially prior criminal record, can have a significant influence on the nature of the sentence or the length of any period of imprisonment.

76. In relation to the offence of dishonestly taking, driving or riding in a motor vehicle without the owner's consent, the statistics show that as at February 2019 – unfortunately the statistics do not include any later results – 91.5 per cent of offenders were sentenced to imprisonment in the Supreme Court, of which 74.5 per cent were required to spend at least some of that in actual custody. Of these latter, 46.5 per cent were sentenced to up to six months' imprisonment and 32.5 per cent were sentenced to seven to 12 months' imprisonment. The maximum sentence was of two years and eight months' imprisonment.

77. There seems to have been a reduction in the length of sentences more recently. Thus, in R v Taylor [2015] ACTSC 122 at [26], the offence was described as:

… a typical offence of its nature and, in itself, is of no great objective seriousness, particularly as the vehicle was recovered undamaged shortly afterwards. Mr Taylor, however, was sentenced to 15 months' imprisonment, reduced from 18 months for his plea of guilty.

78. More recently, however, the general approach seems to have been to impose a sentence of six months' imprisonment. The analysis is complicated because many of the sentences are associated with much more serious offences, such as aggravated robbery, or burglary, or aggravated burglary.

79. In the suggested comparable sentence, to which I was referred, R v Norton [2019] ACTSC 111, however, the only offences for which Mr Norton was to be sentenced were those of dishonestly driving a motor vehicle without consent and driving whilst unlicensed, for the former of which he was sentenced to six months' imprisonment, reduced from eight months for his plea of guilty. He had a prior criminal record, including many traffic offences which were described at [6] as 'technical driving offences'. To fully understand the term, I sought a copy of Mr Norton's criminal history, and neither party objected to me receiving it. A perusal of that shows that the offences which were, with respect, properly so described, being offences such as using an unregistered vehicle, using an uninsured vehicle, being an unlicensed driver, driving an unsafely maintained vehicle, and the like.

80. As to the offence of driving while disqualified from holding or obtaining a license, an offence much more commonly dealt with in the Magistrates Court where the database does not unfortunately link to any sentencing remarks, I only have the raw statistics. These show that approximately a quarter of offenders are sentenced each to a fine, to a partially or wholly suspended term of imprisonment, to a term of imprisonment to be fully served by custody or to a good behaviour order. The majority of terms of imprisonment are for 3 months, ranging up to two sentences of 11 months.

81. Finally, there are no useful statistics on the offence of refusing to provide an oral fluid sample when so directed. No sentencing remarks were produced to me.

Consideration

82. It is important to have regard to the objects of the Crimes (Sentencing) Act as set out in s 6 of that Act, as well as the purposes for which a sentence may be imposed as set out in s 7. It is also important to be mindful of s 10, which tells the court that an offender should not be sentenced to a term of imprisonment unless no other penalty is appropriate.

83. Punishment is always a relevant consideration and is important in the light of the nature of offences, especially the primary offence. In this case, given the prevalence of that offence, general deterrence is appropriate, as is the associated function of denunciation. Mr Massey's criminal record requires personal deterrence to be a significant purpose. In view of Mr Massey's age and his stated desire to address his drug addiction, rehabilitation does loom large.

84. His personal history and circumstances are also relevant and must be taken into account in recognising that his long drug history does mean that offences that are affected by drug addiction must be dealt with in a particularly creative way.

85. In my view, no sentence but one of imprisonment is appropriate. As is clear from earlier comments in these reasons, the length of the sentences, particularly for the primary offence, is important. I have particular regard to the fact that Mr Massey has committed the offence twice before, and to the sentences then imposed which have clearly not deterred him. The deprivation to the owner of his motor vehicle makes it important to recognise the harm done to the victim. Though breaches of the law are always of concern to the community, the direct harm done in this case is not such that it is prominent in the sentencing outcome.

86. That there are multiple offences also requires careful consideration. In particular, the appropriate sentence for each offence is important. I have carefully reviewed the sentences to ensure that where there are overlapping common elements between any of the offences the offender is not punished twice. I have also considered whether the sentences should be partly or wholly concurrent because, for example, they are part of the same enterprise or otherwise.

87. In this case, the fact that the primary offence and the offence of driving whilst disqualified were part of the same enterprise and have overlapping elements means that some degree of concurrency is appropriate. The same is not so relevant in relation to the refusal to provide a sample of oral fluid for analysis, though it was not entirely unrelated.

88. I have then reviewed the length of the term of imprisonment to ensure the principle of totality is respected, that the total sentence is adequate to reflect the criminality of the offences committed, but not more than that, that the total sentence is not crushing and leaves open the realistic prospect of reform and the hope for the achievement of the offender's goals when he returns to the community.

89. This is to be effected by making appropriate concurrency and cumulation between sentences. It is necessary, however, to ensure that offenders are not mistaken into believing that they can commit additional offences with impunity. Mr Massey is also entitled to a discount for pleading guilty, the plea of which was entered in the Magistrates Court and at a relatively early stage. Nevertheless, the prosecution case against him was overwhelming, and while he nevertheless is entitled to the discount, this must be somewhat moderated.

90. Because of the structure of the sentences I propose, I do not need to address the issue of whether a sentence of imprisonment that is backdated to take into account pre-sentence custody meets the criterion of s 12A(2) of the Crimes (Sentencing) Act, namely that such a sentence then is ‘fully suspend[ed]’. Nevertheless, I do need to take into account the period of 128 days that Mr Massey has already been in custody when bail was originally refused.

91. I have decided, however, that for the primary offence Mr Massey should be sentenced to 12 months' imprisonment. He is therefore eligible to be subject to a treatment order.

92. Mr Massey, please stand.

93. I convict you of driving whilst disqualified on 18 March 2020. I sentence you to four months and six days' imprisonment to commence on 19 April 2020 (to take into account pre-sentence custody) and end on 24 August 2020, to take into account pre-sentence custody. Had you not pleaded guilty, I would have sentenced you to six months' imprisonment.

94. I convict you of dishonestly driving a motor vehicle on 18 March 2020 without the owner's consent.

95. I convict you of refusing to provide a sample of oral fluid, as directed, on 18 March 2020.

96. I will not sentence you at this time for these two offences, but I indicated that I propose to sentence you to 12 months' imprisonment for the first of these offences and 2 months for the second, with some concurrency.

His Honour then spoke to Mr Massey:

97. Mr Massey, that is the sentence that, in effect, I propose to order, subject to two matters. The first is whether I should make a treatment order, and the second is, if not a treatment order, whether I should suspend any part of that sentence, or indeed the whole of the sentence, to give you an opportunity for rehabilitation.

98. Those are matters that I need to give further consideration about because of your behaviour on bail. There are three breaches of bail. I do not know at this stage whether you admit those breaches, and I do not ask you to do that just at the moment, but given the concern I have, I am not prepared to consider making a treatment order today.

99. However, I have ascertained that if I adjourn for a short period of time and you are able to get your act together and actually show that what you say about being interested in rehabilitation is true, then I will certainly consider very seriously a treatment order and if, for some reason, I decide not to do that, although at the moment if you do what I ask you to do, that is unlikely, then I would consider a full suspension with rehabilitation or a partial suspension.

100. You have a bad history. Drugs are clearly part of that. Now is an opportunity for you to put it behind you, to live a more useful life to yourself and one where you can enjoy being in the community and not in and out of prison. You know from your parents' situation what that is all about, and I hope you genuinely believe that that is not the life for you.

101. If that is where you want to go, then this is the exact court which will help you to do that, but you are part of that also. You must come to the party and you must do that. If you are genuine, I will support you.

102. So far, you have given some indications of not being serious. You are still using cannabis. Well, you were. You were found to have cannabis in your system. If you have stopped, that is fantastic. You did not seem to be able to obey orders to stay at home when you were told to with your curfew, and so on.

103. I am going to give you a further opportunity. I am going to remand you in custody. That is the end of the first sentence. We are going to deal with you again.

104. What you have got to do, however – I am not making Orders, because that just confuses things, but I am telling you what you have got to do. If you are serious, you have got to stop using drugs, no drugs in AMC. You would be blind if you did not know that there were drugs there, and there is temptation. Show that for a week you can resist that temptation.

105. Secondly, you have got to contact Leba from CRS. I am going to write his number out now and give it to you.

106. Do that. Work that out with him. Come back to me, no drugs, and we will see what we can do. You may be seated.

His Honour then spoke to Counsel for Mr Massey:

107. Being on a treatment order is a privilege. It is a privilege to which he is entitled if he steps up to the mark. This is a big opportunity.

108. It is not his last opportunity. There are never last opportunities, but it is getting close to that, and if Mr Massey takes it and does the right thing, then I think, subject to any submissions that the Crown would make to the contrary, the chance that he is likely to get a treatment order on Friday. But I cannot do anything other than encourage Mr Massey to do the best he can and we will see if we can help him through this difficult process and see if he can, in the end, do better than his parents, to put it crudely.

I certify that the preceding one hundred and eight [108] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge.

Associate: Samuel Xiang

Date: 22 October 2020