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Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Reparation Order – dishonestly driving a motor vehicle without the owner’s consent – aggravated dangerous driving as a repeat offender – theft (jointly committed) – driving whilst disqualified as a repeat offender – refusing to provide an oral fluid sample – dishonestly riding a motor vehicle without the owner’s consent – Drug and Alcohol Treatment Order – Suitable Accommodation

Legislation Cited: Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10(2), 12A, 12A(1)(c), 12A(2)(a)(iii), 33(1), 33(1)(a), 33(1)(za), 46J, 63, 80O, 80Y, 80ZA; Table 46K Crimes (Sentence Administration) Act 2005 (ACT) ss 86(1)(a)(i), 108 Criminal Code 2002 (ACT) ss s 45A, 308, 318(2) Road Transport (Driver Licensing) Act 2005 (ACT) ss 32(1), 32(5) Road Transport (General) Act 1999 (ACT) ss 63(3), 69 Road Transport (Safety and Traffic Management) Act 1999 (ACT) ss 7A, 7A(1) Cases Cited: Baumer v The Queen (1988) 166 CLR 51 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 DPP v Vucko [2008] VSCA 270 Fusimalohi v The Queen [2012] ACTCA 49 Hili v The Queen [2010] HCA 45; 242 CLR 520 In the Matter of a Bail Application by Rebecca Massey [2008] ACTSC 145 Kelly v Ashby [2015] ACTSC 346; 73 MVR 360 Markarian v The Queen [2005] HCA 25; 228 CLR 357 RK v Mirik (2009) 21 VR 623 R v Blackburn (No 1) [2020] ACTSC 373 R v Collins [2019] ACTSC 302 R v Crawford (No 1) [2020] ACTSC 245 R v Di Bitonto [2016] ACTSC 280 R v Eichmann [2019] ACTSC 212 R v Hawkins [2015] ACTSC 333 R v Hayes [1984] 1 NSWLR 740 R v JM [2014] ACTSC 380 R v Lyons (No 1) [2020] ACTSC 358 R v Massey (No 1) [2020] ACTSC 256 R v Massey (No 2) [2020] ACTSC 257 R v Mathews [2020] ACTSC 364 R v McCusker [2015] QCA 179 R v McHughes [2021] ACTSC 92 R v Ngerengere (No 3) [2016] ACTSC 299 R v Pham [2015] HCA 39; 256 CLR 550 R v Seymour [2021] ACTSC 152 R v Slattery [2021] ACTSC 154 R v Steen [2015] ACTSC 259 R v Taylor [2015] ACTSC 122 R v Tonna (No 1) [2020] ACTSC 360 R v Tonna (No 2) [2020] ACTSC 362 R v Whyte [2002] NSWCCA 343 R v Williams [2017] ACTSC 298 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Weininger v The Queen [2003] HCA 14; 212 CLR 629 Wong v The Queen [2001] HCA 64; 207 CLR 584 Texts Cited: Anna Aizer and Joseph Doyle, ‘Juvenile Incarceration, Human Capital, and Future Crime: Evidence from Randomly Assigned Judges’ (2015) 130(2) The Quarterly Journal of Economics 759 Parties: The Queen (Crown) Jordan Matthew Henry Massey (Offender) Representation: Counsel C Muthurajah; K Sharafeldin (Crown) B Morrisroe; E Bayliss (Offender) Solicitors ACT Director of Public Prosecutions (Crown) Boxall Legal (Offender) File Numbers: SCC 133 of 2020 SCC 134 of 2020 SCC 202 of 2020 SCC 88 of 2021 SCC 89 of 2021

REFSHAUGE AJ:

Introduction

1. A consequence of young people using drugs is that dependency often follows, and that has other consequences. One of those consequences is frequently that the young person commits crimes, especially as the use of drugs, being an illegal activity, leads to interaction and relations with antisocial associates. This in turn leads to such young people ending up in the juvenile justice system, and often in juvenile detention.

2. The evidence suggests that juvenile offenders who are incarcerated are significantly more likely to end up in adult prison compared to juvenile offenders who are not incarcerated, and, of all juvenile offenders incarcerated, nearly half end up in prison by the age of 25: Anna Aizer and Joseph Doyle, ‘Juvenile Incarceration, Human Capital, and Future Crime: Evidence from Randomly Assigned Judges’ (2015) 130(2) The Quarterly Journal of Economics 759. This suggests that efforts to use other methods than incarceration for young offenders may be productive, though periods of juvenile detention may make that task harder.

3. In this context, it is necessary to sentence Jordan Matthew Henry Massey, who has pleaded guilty to offences of theft (jointly committed with a co-offender), dishonestly driving a motor vehicle without the owner's consent, aggravated dangerous driving as a repeat offender, and driving whilst disqualified as a repeat offender.

4. At the sentencing hearing, the Crown tendered the Crown Tender Bundle, which include the formal committal and transfer documents, an Agreed Statement of Facts, Mr Massey's Criminal History, an ACT Government Analytical Laboratory Certificate, and a Compensation Schedule.

5. In addition, it included a Drug and Alcohol Treatment Assessment dated 26 May 2021, of ACT Corrective, and a Drug and Alcohol Sentencing List Suitability Assessment dated 27 May 2021, of ACT Alcohol and Drug Services. These two reports are the Drug and Alcohol Treatment Assessments (the Suitability Assessments), under s 46J of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). No objection was raised to the admission of any of these documents and I admitted them. No challenge was made to any of their contents.

6. Convictions for the offences with which Mr Massey has been charged were a breach of a Good Behaviour Order made on 4 September 2020. As Mr Massey has pleaded guilty, it is almost inevitable that he will be convicted of these offences and so, also included in the Crown Tender Bundle, are the relevant documentation to address that breach. In addition, I had detailed and well thought out submissions filed by the Crown and on behalf of Mr Massey. From these materials, I make the following findings.

The Facts

7. On 8 February 2021, Mr Massey and two other persons, a male and a female, entered the Westfield Shopping Centre in Woden. Mr Massey and the male then entered the David Jones store and went to the menswear section. They stopped at the rack of Armani brand clothes and took a number of clothes off the rack. These were six Armani jumpers, three Armani shirts, and four Armani short-sleeve shirts, of a total value of $2,390. Mr Massey and his co-offender were approached by a sales assistant but walked quickly in the direction of the exit. They stopped in the womenswear section near the exit, where the co-offender handed the clothes to Mr Massey, who, with the co-offender, left the store without paying for the items.

8. The theft was reported to police, who attended and viewed CCTV footage of the incident, including the footage of the arrival of them with an unknown female in a Subaru at the shopping centre carpark, and Mr Massey was identified by police. Mr Massey was later arrested in connection with another matter and was wearing an Armani branded shirt, Armani branded shorts, and an Armani branded jumper. Also located by police were a jumper, sunglasses, and shoes, seen on the CCTV footage as having been worn in the David Jones store by Mr Massey and the other unknown male, the co-offender. These facts constituted the offence of theft which was jointly alleged to have been committed by Mr Massey and his male companion.

9. On 10 February 2021, police received a report of the theft of a BMW X3 motor vehicle owned by a diplomat. The vehicle was fitted with a tracking system and the owner had located it at Chisholm, ACT. He went there and saw a ‘skinny Caucasian male’ wearing a black cap, who got into the driver’s seat and then drove off. Throughout the morning, police sighted the vehicle on multiple occasions and observed it driving through several red traffic lights. Due to Mr Massey’s manner of driving and because there was a heavy volume of traffic at the time, the circumstances were not appropriate for police to pursue the vehicle and intercept it.

10. Police, however, tried, though unsuccessfully, to deploy tyre deflation devices and Mr Massey drove directly at them. Police monitored the vehicle throughout the morning and finally were able successfully to deploy a tyre deflation device in Drakeford Drive, Greenway. Mr Massey, however, continued to drive the vehicle despite the two deflated right-hand side tyres of the vehicle. Police activated their emergency lights, signalling Mr Massey to stop the vehicle, but he did not do so.

11. As the vehicle entered the intersection of Athllon Drive and Drakeford Drive, Kambah, it collided with another motor vehicle, but Mr Massey did not stop to offer assistance to the person in the other vehicle or provide prescribed details to the other driver and continued on driving into Summerland Circuit, Kambah, driving at not less than 90 kilometres per hour in a zone limited by the posted speed limit to 60 kilometres per hour. It then entered the intersection of Sumerland Circuit and Drakeford Drive, against a red traffic light. Mr Massey then continued along O’Halloran Circuit, through the intersection of O’Halloran Circuit and Drakeford Drive, again against a red traffic light, into Summerland Circuit, narrowly avoiding a collision with oncoming traffic.

12. Because of the damage to the tyres, Mr Massey was unable to maintain control of the vehicle and hit a kerb, deflating a third tyre, and the vehicle started to slow. A male passenger opened the passenger side door and left the vehicle. He ran from the area. Mr Massey continued to drive the vehicle along Summerland Circuit before coming to a complete stop. He opened the driver's side door and left the vehicle, running from it. Police who saw him run recognised him. They gave chase and directed him to stop, a direction he ignored, but he was arrested shortly afterwards ‘after a short foot chase’, and identified himself to police.

13. Mr Massey was required to undergo an alcohol screening test which returned a negative result, and a drug screening test which returned a positive result for a prescribed drug. He was then taken into custody and transported to City Police Station, where he was subject to an oral fluid analysis test. He provided a sufficient sample of oral fluid and the test showed the presence of a prescribed drug. He was arrested and charged with the offences of aggravated dangerous driving, dishonestly driving a motor vehicle without the owner's consent, and driving whilst disqualified as a repeat offender. Mr Massey made admissions that he had recently consumed ‘ice’, namely, methamphetamine.

14. On 10 December 2019, Mr Massey had been disqualified from holding or obtaining a driver licence for two years. He had been further convicted on 4 September 2020 for refusing to provide a sample of oral fluid on request, as a repeat offender, and was disqualified from holding or obtaining a driver licence for 12 months from the same day. These two disqualifications were made cumulative: s 69 of the Road Transport (General) Act 1999 (ACT). He had also been convicted on 17 August 2020 for driving whilst disqualified and had been subjected to an automatic two-year licence disqualification.

15. On 4 September 2020, in addition to the conviction for refusing to provide a sample of oral fluid on request, mentioned above (at [14]), Mr Massey had been convicted of an offence of riding a motor vehicle without the owner's consent and of dishonestly driving a motor vehicle without the owner's consent. For those three offences, he was sentenced to a total period of 19 months imprisonment, which was suspended on 16 January 2021 by a Good Behaviour Order of 18 months, the breach of which has been referred to above (at [6]).

The Proceedings

16. After his arrest, Mr Massey appeared in the Magistrates Court the next day charged with aggravated dangerous driving as a repeat offender, with a prescribed drug in his oral fluid or blood at the time of the offence (though this was amended in the Magistrates Court to ‘a first offender’ on 8 April 2021, which was further amended to revert to ‘a repeat offender’ by this Court on 4 June 2021), dishonestly driving a motor vehicle without the owner's consent, and driving whilst disqualified as a repeat offender. He was remanded in custody and the proceedings were adjourned to 4 March 2021. On the adjourned date, he was further charged with joint commission theft and the proceedings were further adjourned. He remained in custody. After two more adjournments, but prior to the provision by the prosecution of the brief of evidence, he entered pleas of guilty, on 8 April 2021, to each of the charges preferred against him. He was then committed to this Court for sentence and the offence of driving whilst disqualified as a repeat offender was transferred to this court as a related offence.

17. Mr Massey appeared in this Court on 9 April 2021 and, after the Eligibility Assessment was ordered and conducted (see R v McHughes [2021] ACTSC 92 at [7]), Suitability Assessments were ordered and the proceedings were listed for sentence.

18. He has been custody since he was arrested on 10 February 2021, save for one day's bail granted to attend a funeral on 19 May 2021. Up until 7 June 2021, this is a total of 118 days.

19. Mr Massey has appeared in this Court before: see R v Massey (No 1) [2020] ACTSC 256 and R v Massey (No 2) [2020] ACTSC 257.

The Offences

20. The function of a court sentencing an offender for the crimes that he or she has committed is to impose a just and adequate sentence, but such a sentence is, the High Court has made clear, the product of an ‘instinctive synthesis’, in which the court takes into account the relevant factors that are required to be considered, even though, ‘there are many conflicting and contradictory elements which bear upon [the] sentencing of [an] offender’: Wong v The Queen [2001] HCA 64; 207 CLR 584 at 611; [75].

21. In this jurisdiction, the courts are fortunate that the legislature has set out, in s 33(1) of the Sentencing Act, a list, but not an exhaustive list, of relevant factors that must be taken into account. Section 33(1)(a) requires consideration of ‘the nature and circumstances of the offences’. Some of this encompasses the facts as set out above (at [7]-[15]), but it also encompasses the harm, which the court is directed to alleviate, the way in which the offence should be viewed by the courts and an evaluation of how serious a version of the crime it is. This is helped too by what is required under s 33(1)(za), namely, ‘current sentencing practice’, which assists courts to identify the relevant characteristics of an offence, that is, characteristics which determine its seriousness, as well as the particular aspects of specific offending behaviour that assists the court to assess the seriousness of the offence and identify an appropriate sentence.

22. Not mentioned in this section, but a primary consideration, is the maximum penalty specified for the crime. The High Court, in Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 372; [30]-[31], has explained why this is important; namely at [31], where Gleeson CJ, Gummow, Hayne and Callinan JJ said:

first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all the other relevant factors, a yardstick.

23. In light of these matters, I then turned to the particular offences to which Mr Massey has pleaded guilty. Theft is an offence contrary to s 308 of the Criminal Code 2002 (ACT), which specifies a maximum penalty of 10 years imprisonment or a fine of $160,000, or both. In this case, another offender engaged with Mr Massey jointly in the commission of the crime. Under s 45A of the Criminal Code, persons who enter into an agreement, as Mr Massey and his co-offender obviously did, and commit the offence in accordance with the agreement, are both liable for the commission of the offence and punishable in the same way as if he or she had committed the offences alone.

24. Theft, like most dishonesty offences, involve the dispossession of property from others. This is a breach of the standards of behaviour expected of people in the community and troubles its members. Often, people have worked hard to obtain the items which have been taken. In addition, they are often insured, and this not only creates inconvenience while making a claim, but also has an effect on insurance premiums, which affect many members of the community. Hence the seriousness shown by the maximum penalty as set out above (at [23]).

25. The offence of theft has, of course, been subject to much consideration by the courts, such as in R v Hayes [1984] 1 NSWLR 740 at 742 and R v Hawkins [2015] ACTSC 333 at [48]-[50]. The courts have identified that the most important consideration is the value of the property stolen, as it is the major factor in arriving at an assessment of the seriousness of a particular version of this quite serious offence. This is principally the monetary value, but consideration should also be given to non-monetary value such as sentimental and personal value. In addition, the inconvenience in the loss of some items is also relevant.

26. Here, the property was worth $2,390. This is not an inconsiderable value; it is quite significant and renders the offence a somewhat more serious offence. It would, of course, have had consequences on the store owner, which, even if insured against such theft, would have suffered financially, because it needed either to cover the losses or to meet increased insurance premiums. These impacts would have also had a wider effect in the community than just on the store owner and its shareholders. None of the more personal circumstances of value, including sentimental value, apply here.

27. Dishonestly driving a motor vehicle without the owner’s consent is an offence prohibited by s 318(2) of the Criminal Code and which attracts a maximum penalty of five years imprisonment or a fine of $80,000, or both. This offence is, of course, an offence of dishonesty. While Mr Massey is not charged with, and is therefore not criminally liable for, the initial theft of the vehicle, he is responsible, at the very least, for the owner being deprived of its use.

28. This is a serious matter, particularly given that a motor vehicle may well be the most valuable purchase made by the owner, at least after a house, if the owner has bought one. It also creates much inconvenience, especially in a city such as Canberra. The courts have, of course, considered this crime many times, as well as, indeed, have I had occasion to do so. See, for example, R v Crawford (No 1) [2020] ACTSC 245, R v Slattery [2021] ACTSC 154 and Kelly v Ashby [2015] ACTSC 346; 73 MVR 360 at 370-1; [80]-[83].

29. Considering these cases, it is important to consider the period of driving and the length of distance driven, whether the vehicle was used in the commission of another offence, whether the offender was the driver and not only a passenger, the manner of the driving – though I must make allowance depending on whether, as here, the manner of driving is subject to a separate charge, which may be dealt with by the concurrency or partial concurrency of any sentences – whether the vehicle was damaged and whether it was returned to the owner, which may be related to the issue of whether the offender is likely to have continued to drive the vehicle for some further time had he or she not been intercepted by police.

30. In this case, it was, as is often the case, difficult to be sure for how long Mr Massey had the vehicle and how far he had driven it. It appears that he may have driven it soon after it was stolen, which was at 10:20 am on 10 February 2021. There was another male in the vehicle and it may be that they took turns in driving it. Riding in the vehicle would, of course, have been another offence, though it was not charged here against Mr Massey. The Statement of Facts, which was agreed, stated that Mr Massey was driving when the police first attempted to deploy the tyre deflation devices. Thus, at least from that time, he was driving.

31. The police’s deployment of tyre deflation devices appears to have been relatively soon after they were notified of the theft and it is said that, after that time, the Police ‘monitored the movements of the vehicle throughout the morning’. Mr Massey was arrested at 12 noon. So it would appear likely that he was driving for at least an hour. The distance is not entirely clear, but it was around at least a good part of Kambah and surrounding areas. There was no evidence that Mr Massey used the vehicle to commit another crime. While he did engage in aggravated dangerous driving, and this was a significant part of his poor driving, including his driving through a number of red lights, which aggravated this offence, it is an offence that is separately charged, and it is important not to engage in double punishment. Thus, a significant concurrency of sentences would be required.

32. The vehicle was clearly recovered and there must have been some damage caused in the collision, though there is no evidence about that. There was, no doubt, also damage caused by driving on the deflated tyres, but again, there was no specific evidence of that. The fact of recovery means it is not as serious an offence as it could have been, though the nature of the damage makes it somewhat more serious.

33. Aggravated dangerous driving is made an offence by s 7A(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT), rendering Mr Massey liable to a maximum penalty of five years imprisonment or a fine of $80,000. The offence of dangerous driving is an aggravated offence and so subjects Mr Massey to the more serious penalties if certain circumstances exist, as set out in s 7A(1) of the Road Transport (Safety and Traffic Management) Act.

34. In this case, the identified circumstances of aggravation were that he was driving with a prescribed drug in his oral fluid and he failed, without reasonable excuse, to comply with a police request to stop the vehicle. The dangerous driving was related to his manner of driving, which, of course, included driving at considerable speed and going through traffic lights, both of which put other traffic users at risk.

35. Under s 63(3) of the Road Transport (General) Act, conviction for this aggravated offence of driving results in an automatic disqualification from holding or obtaining a driver licence for 12 months or, if the court orders, a longer period. Such a disqualification is, under s 69 of that Act, cumulative unless the court orders otherwise. Indeed, an offence which regulates the misuse of motor vehicles is a serious offence because of the risk that such irresponsible driving poses not only to other road users, whether they be drivers, motorcyclists, bicycle riders, or pedestrians, but also to those near the road working, living, or visiting, especially where the road on which the offender is driving is in a built-up area, such as a residential or commercial retail area, or most seriously, a school area.

36. The courts, in considering the offence, have pointed to factors that are relevant. See R v Blackburn (No 1) [2020] ACTSC 373 and the factors there approved as set out in R v Whyte [2002] NSWCCA 343. See also R v Seymour [2021] ACTSC 152, R v Williams [2017] ACTSC 298 at [67], and Kelly v Ashby. Thus, it is relevant to consider where the driving was and evaluate the risk it caused to others. It is important to have information about the state of the traffic in the area of where the driving occurred and the identities of the other parties that were present, such as whether it was near a school area and whether there were pedestrians or drivers nearby: R v Eichmann [2019] ACTSC 212 at [24].

37. The period of the actual dangerous driving is important, as are, of course, the particular factors which make the driving dangerous: excessive speed, impaired driving, poor driving such as driving on the incorrect side of the road or on a footpath, driving through red traffic lights, erratic driving, and being involved in a police dispute, including failing to stop as required and any actual collisions with other vehicles, roadworks or structures.

38. In this case, there was little direct evidence of the period of the actual dangerous driving, though it would appear not to have been a very long time. I could, however, estimate that the distance travelled would not have been far, around 8 to 10 kilometres. The speeds at which Mr Massey travelled were often high, especially for a built-up area, such as that which exists through Summerland Circuit and O'Halloran Circuit. Further, Mr Massey drove through a red light, collided with a car and kept driving with deflated tyres. He failed to stop and was engaged in a police pursuit. He was driving with a drug in his oral fluid and admitted that it was methamphetamine, which would have likely impaired his driving. There was also a high volume of traffic on all roads at the time. All of these matters make it a more serious version of the offence, though by no means the most serious version of the offence that has regrettably been seen in these courts.

39. The final offence is the offence of driving whilst disqualified as a repeat offender, made an offence by s 32(1) of the Road Transport (Driver Licensing) Act 2005 (ACT) (the Driver Licensing Act) and which has set a maximum penalty of one years imprisonment or a fine of $16,000, or both. It also attracts an automatic disqualification of the offender's holding or obtaining a driver licence: s 32(5) of the Driver Licensing Act. This offence is an important support for the regulation of driving, so that people who abuse the opportunity to drive can be prevented from doing so by the loss of their driver licence and, thus, aims to ensure the safety and proper use of the roads.

40. The main issue here that a court needs to consider is the way in which the offender has failed to comply with the loss of the licence. Mr Massey was convicted of driving whilst he was disqualified from holding or obtaining a driver licence on 17 August 2020. That conviction, which makes him a repeat offender, also resulted in an automatic licence disqualification period of 12 months, or such longer period as the court may order: s 32(5) of the Driver Licensing Act. Thus, although Mr Massey was driving less than six months after the disqualification, and so was not really driving recently after the disqualification, it was nonetheless done in defiance of a court order. There was no significant reason for him to drive; he said he was relocating his property to his family home, but no family or friends could help him, but he gave no reason why he could not hire a taxi van or the like. Driving in defiance of the court’s order appears to make such driving, in these circumstances, contumacious: Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 at 306-308; [33]-[38], R v Tonna (No 1) [2020] ACTSC 360 at [30]. The manner of driving is relevant, though double punishment must be avoided, given the fact that this is relevant to all the other offences, except for the offence of theft. In my view, it was a relatively serious version of the offence.

Subjective Circumstances

41. I sentenced Mr Massey for a number of offences on 7 September 2020: see R v Massey (No 2). I had, however, heard sentencing submissions before and had delivered an assessment of Mr Massey's personal circumstances at that stage in the decision of R v Massey (No 1) at [63]-[71]. It is not necessary to repeat all of what I there said, and I rely on it.

42. The following matters are important. Mr Massey is still a relatively young man at 21 years of age (see the discussion of the significance of youth in sentencing in R v Tonna (No 2) [2020] ACTSC 362 at [44]-[47]). He had an unstable and disadvantaged childhood, especially while his mother was sentenced to a significant period of imprisonment when he was eight years old: see In the Matter of a Bail Application by Rebecca Massey [2008] ACTSC 145 at [9]-[15]. As noted there, at [15], his mother had, before then, been before the courts for offending on no less than 14 occasions. He has had little contact with his father who was also, for much of his childhood, in prison. His disadvantage included some unsatisfactory living arrangements and instability, as well as physical abuse.

43. He left school at Year 9, having struggled while there. Since leaving school, he has had little employment.

44. He started drinking alcohol and using drugs when he was 13 years old, though he reduced his alcohol consumption by the time he was 18. His use of drugs has been significant and involves cannabis and methylamphetamine, both of which he has used regularly, as well as other drugs from time to time.

45. He has had limited alcohol, tobacco or other drug treatment, though he did enter the Solaris Therapeutic Community in the Alexander Maconochie Centre (as to which facility, see: R v JM [2014] ACTSC 380 at [26]), from which ‘[h]e self-discharged after three weeks due to difficulties experienced with opening up and being vulnerable while in the correctional setting.’

46. I accept that this shows both some willingness on his part now to address his drug dependency and a reasonable explanation for not continuing, especially for detainees of his age, and as such, he should not be barred from further attempts at rehabilitation. Mr Massey has what is accurately described in R v Massey (No 1) at [69] as ‘a depressing criminal history for one so young’. I do not need to repeat what is there said, save to note that he has a number of prior convictions for each of the offences for which he must now be sentenced. I rely on what I there described.

47. The use to be made of prior offending has to be approached with care. The High Court has accepted in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477, that prior offences may properly be used to show whether the instant offending is uncharacteristic, as they are clearly not here, and when retribution, deterrence and protection of the society may indicate a more severe penalty. Nevertheless, the prior offending does not increase the objective seriousness of the offence (Baumer v The Queen (1988) 166 CLR 51 at 57) and therefore cannot result in Mr Massey receiving a penalty which punishes him again for the previous offences of which he has already been convicted and for which he has already been sentenced: Weininger v The Queen [2003] HCA 14; 212 CLR 629 at 640; [32].

48. Nevertheless, the earlier sentences obviously deny an offender the leniency that is available for a first offender (DPP v Vucko [2008] VSCA 270 at [18]). The overall principle, however, is that the sentence must not be disproportionate to the objective seriousness of the offence: R v McCusker [2015] QCA 179 at [50]. It seems to me that Mr Massey's already disadvantaged childhood also requires consideration of the principles articulated by the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571, namely that the moral culpability of an offender may be substantially reduced by his or her childhood disadvantage, which effect neither diminishes over time nor diminishes because the offender has a criminal record: see R v Massey (No 2) at [32].

49. While Mr Massey says he has no physical or mental health concerns, he has, perhaps unsurprisingly, been prescribed some antidepressant medication when entering custody on the last occasion. He has stated a concern that when he was younger, he might have had Attention Deficit Hyperactivity Disorder, but he has not had a formal diagnosis because he was unable to undertake further testing in Sydney due to family circumstances, nor any treatment because of the difficulty of obtaining treatment in Canberra. Mr Massey has experienced remorse for his further offending and has been affected by hearing of the death of a 19-year-old who recently died when speeding.

50. He explained the reason for his offending as having been because, ‘I was on drugs’, confirmed by the drug testing to which he was subject and the positive result, which was one of the aggravating features of the aggravated dangerous driving offence. It was noted in R v Massey (No 1) at [67] that, ‘[h]e is assessed as likely to have a severe substance use disorder.’

Conditional Liberty

51. On 4 September 2020, Mr Massey was convicted of an offence of dishonestly driving a motor vehicle without the owner's consent, an offence of refusing to supply a sample of oral fluid for analysis and an offence of dishonestly riding in a motor vehicle without the owner's consent. He was sentenced to a term of 19 months imprisonment to commence on 17 August 2020, to be suspended, after 5 months, on 16 January 2021 for a period of 14 months and 1 day. A Good Behaviour Order was then made for 18 months, to commence on the day of suspension, namely on 16 January 2021.

52. These offences, if proved, constitute a breach of the condition of the Good Behaviour Order not to commit any further offences during its currency: s 86(1)(a)(i) of the Crimes (Sentence Administration) Act 2005 (ACT) (the Sentence Administration Act). On his plea of guilty to these offences, I am satisfied that he has breached that Order.

53. There are two consequences of this. The first is that the commission of offences, while subject to a Good Behaviour Order, is a matter of aggravation that I must take into account when sentencing him: R v Mathews [2020] ACTSC 364 at [37]-[38]. This does not affect the objective seriousness of the offence but requires consideration in determining the severity of the sentence that is to be imposed. The breaches amount to a breach of the trust that the Good Behaviour Order gave him to be in the community and not in custody. They are also relevant to an assessment of his prospects of rehabilitation; indeed, the contribution of drug taking to his offending, in the context of no sustained efforts at rehabilitation, is very relevant to that assessment.

54. Secondly, however, I must also deal with the breach. That is appropriate too, since I imposed the Order.

55. Accordingly, I am well aware of the circumstances of the earlier offending and sentencing. I have reminded myself of these matters by rereading the materials provided to me at the time of sentencing, and also the decisions I then made by rereading R v Massey (No 1) and R v Massey (No 2).

56. I have, under s 108 of the Sentence Administration Act, a range of options following my finding the breaches as I have. Most of those options are inappropriate in this case, given the number and seriousness of the further offences, the relative proximity of the further offending to his release from custody and his continuing drug dependency and use without any opportunity for significant rehabilitation.

57. Accordingly, I will cancel the Good Behaviour Order. I therefore must proceed to resentence Mr Massey for the offences, which I will do.

Sentencing Practice

58. Noted above (at [21]) is the requirement, under s 33(1)(za) of the Sentencing Act, to have regard to current sentencing practice. Part of that has been addressed above (at [20]-[40]), in the consideration of how the seriousness of an offence is considered, and the courts have identified the factors that require consideration when determining whether a more severe penalty is required. The other part of the consideration is an awareness of the kind of sentences that are currently being imposed, so that the court can be informed of the received wisdom of sentencing judges and appeal courts.

59. There have been two ways that this has been done, namely through considering both statistical information now available in the ACT Sentencing Database and comparable cases. Both have their limitations and neither provide required boundaries for the imposition of any sentence. Thus, bare sentencing statistics provide limited assistance, though they do have a role to play: R v Pham [2015] HCA 39; 256 CLR 550 at 565-6; [49]. One of the limitations of statistics is, of course, that they rarely show why a particular sentence was imposed, and in particular, they do not identify all the relevant factors that lead to the instinctive synthesis which will result in the sentence that is to be imposed. Nevertheless, even more importantly, they do not give a picture of the principles articulated by the courts as to why a particular sentence is appropriate, which is important: Hili v The Queen [2010] HCA 45; 242 CLR 520 at 532-3; [36]-[38]. Of course, there is ‘no single, correct sentence’: Fusimalohi v The Queen [2012] ACTCA 49 at [15], per Burns and Lander JJ.

60. The principles can be established sometimes by considering comparable cases: Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at 454; [83]. There are no identical other cases, though, sometimes differences can be considered to be immaterial. In this case, despite the helpful and written and oral submissions of both counsel, limited comparable cases were provided to me. Of course, the range of offences is rarely replicated in other cases, and so while the individual offences may be helpful, the process of determining the total sentence will not often be assisted by comparable cases.

61. Perhaps of some relevance was a sentence of 15 months imprisonment imposed for what was described as ‘a typical offence of its nature’, namely of dishonestly taking a motor vehicle without the owner's consent in R v Taylor [2015] ACTSC 122 at [26].

62. In relation to aggravated dangerous driving, there were not many decisions recorded in the ACT Sentencing Database. I did identify, however, one case where the sentence was for 15 months imprisonment, two for 14 months imprisonment and another for 9 months imprisonment (see, respectively, R v Collins [2019] ACTSC 302, R v Seymour, R v Pelecky (No 2) [2020] ACTSC 370 and R v Eichmann). There were, of course, a number of cases where the sentences were much less. An inspection of the sentences, other than those which I had imposed, do not show very clearly why the sentences were imposed for the periods that they were.

63. The Crown did refer to recent decisions, suggesting that they were comparable. The first was the earlier conviction of Mr Massey (see R v Massey (No 1)), where I proposed that the events of dishonestly driving a motor vehicle without the owner's consent attracted a sentence of 12 months imprisonment (see [94], [96]).

64. The second was R v Blackburn (No 1), when Mr Blackburn was sentenced to three months imprisonment, but that was for the less serious version of the offence. For the offence of aggravated dangerous driving, he was sentenced to six months imprisonment for a not entirely dissimilar offence. There were some less serious aspects and Mr Blackburn was not, as was Mr Massey, a repeat offender.

65. The third was R v Lyons (No 1) [2020] ACTSC 358, where Mr Lyons was sentenced to eight months imprisonment for an offence of dangerous driving. He also was a first offender, but it was a quite serious offence.

Reparation Order

66. The Crown has submitted a claim on behalf of David Jones Pty Ltd, the owners of the store from which Mr Massey and his co-offender stole the clothing. Under ordinary principles of sentencing, Mr Massey is liable for one half of that amount, namely $1,195. I have addressed the issue of Reparation Orders in R v Steen [2015] ACTSC 259 at [51]-[52], summarising, at [51], the thorough analysis of the issues by Bell J in RK v Mirik (2009) 21 VR 623.

67. Ordinarily, there is much benefit for requiring an offender to make compensation. At this stage, however, I consider Mr Massey will have no capacity to do so in the short term, probably for at least 12 months. His immediate prospect is either incarceration or a Treatment Order, neither of which will allow for much opportunity for him to make any reasonable payment.

68. I consider, however, that the position could be revisited if a Treatment Order is made, and during its term he gets assistance to obtain employment, including relevant training, and is thereafter in a position to make some reparation.

69. Accordingly, I decline at this stage to make a Reparation Order.

Consideration

70. A just and adequate sentence must be imposed, and in order to do so, it is important to fashion it with regard to the objects and purposes of sentencing. These are, in this jurisdiction, set out in ss 6 and 7 of the Sentencing Act. I have regard to them.

71. Thus, the seriousness of the offences, as I have described them, and the damage that they do to the community, requires that punishment for the breach of society’s norms must play a part, and further, in order to protect the community, the sentence must not only reinforce the standards established by the criminal law, which can be done by punishment, but must also be one that denounces the conduct and deters others from committing similar offences in the future. The sentence must, in this case, include elements of these purposes.

72. Given the continued offending of Mr Massey for the same and similar offences, there must also be an element of specific deterrence in the sentence and a sentence that encourages him to recognise the harm done to the victims of his offending, as well as demonstrating that the court also recognises that harm. Nevertheless, the community is also protected by Mr Massey’s rehabilitation and the sentence must leave room to promote that outcome. So far as the harm to the victims is concerned, I did not have any Victim Impact Statements, but I can understand, in general terms, the harm that had been done. As I have explained above (at [24]), theft not only impacts on the store and its owner, but also affects the community more widely. The owner of the stolen motor vehicle has also been impacted in ways that can readily be accepted. The risk of dangerous driving to other road users is also something that is commonly understood and recognised.

73. Mr Massey has, however, pleaded guilty. He did so at a relatively early stage in the Magistrates Court prior to the provision by the prosecution of its brief of evidence. This entitles Mr Massey to a substantial discount in the sentence that is to be imposed. Having said that, the evidence against Mr Massey is very strong and the fixing of a discount must take that also into account and not be unreasonably lenient for him.

74. I take into account also the nature and circumstances of the offending, including that Mr Massey was subject to a Good Behaviour Order at the time. This is set out in my findings of fact and assessment of the seriousness of the offences above (at [7]-[15], [20]-[40]). I take into account Mr Massey's personal circumstances as I have described them, which include his character, antecedents, age, and health. I take into account the loss and harm done by his offending, as well as the effects on the victim. Mr Massey was, of course, responsible for the offending, though he was affected by the drugs he was taking.

75. I take into account his plea of guilty which is an expression of remorse which he has further articulated, but also his desire for rehabilitation, as well as current sentencing practice. In all the circumstances, however, no other sentence than a sentence of imprisonment is appropriate: see s 10(2) of the Sentencing Act.

76. There are multiple offences for which I must sentence Mr Massey. This requires me to consider carefully the length of each sentence to ensure that it is just and adequate, but also to ensure that Mr Massey is not punished twice for the same criminality.

77. I must also consider whether the sentences should be partly or wholly concurrent because, for example, the offences are part of the same course of conduct or contain common elements. This is so here, for all of the driving offences contain common elements and are part of the same course of conduct. These factors justify a measure of concurrency in the sentences: R v Di Bitonto [2016] ACTSC 280 at [93].

78. I have then considered the length of the total term of imprisonment imposed by the sentences to ensure that the principle of totality is respected and that the total sentence, moderated by his childhood disadvantage, adequately reflects the total criminality and culpability of Mr Massey, but no more than that, and that it is not an excessive sentence but will leave open the realistic prospect of Mr Massey's reform and maintain his hope that he can live an effective part in the community when he is released.

79. While this may result in what some may see as a lenient sentence, I must respect and recognise the total criminality, and his growing insight into the way that he must address his rehabilitation, which is important, as well as his childhood disadvantage and his early introduction to drugs. This requires a sentence proportionate to his culpability for the crimes, and the assessed effect they have had on the community, but also his personal circumstances and the inherent value of his reform to both the community and himself.

80. In imposing the sentence, I will also take into account the time that he has already spent in custody prior to his sentence today, and I will do so under s 63 of the Sentencing Act by backdating the sentence for that purpose. As to the resentencing consequent upon the breach of the Good Behaviour Order, I do not consider that anything requires a different sentence to be imposed than a sentence of imprisonment, but, of course, I will also take the time spent in custody for the offences that gave rise to that Good Behaviour Order into account, also by backdating the part of it that he has already spent in custody, both prior to and following his sentence to that Good Behaviour Order.

81. I note that Mr Massey has been on bail for one day to attend a funeral and I will reduce the period of backdating by that one day, even though I appreciate that, for part of that time, he was in custody, though he spent a substantial part of that day in the community attending the funeral.

Sentence

His Honour then spoke directly to the accused:

82. Mr Massey, please stand.

83. I convict you of dishonestly driving a motor vehicle without the owner's consent and sentence you to 14 months imprisonment, to commence from 11 February 2021 and end on 10 April 2022.

84. I convict you of aggravated dangerous driving as a repeat offender and I sentence you to nine months imprisonment, commencing on 11 November 2021 and expiring on 10 August 2022. I disqualify you from holding or obtaining a driver licence for 12 months from today, which effectively is a partial concurrency with disqualifications that you have already received.

85. I convict you of theft (jointly committed) and I sentence you to nine months imprisonment, commencing on 11 August 2022 and expiring on 10 May 2023.

86. I convict you of driving whilst disqualified as a repeat offender and I sentence you to five months imprisonment, commencing on 11 February 2023 and expiring on 10 July 2023. I further disqualify you from obtaining or holding a driver licence for 24 months, which period of disqualification is to be concurrent with the disqualification on the charge of aggravated dangerous driving as a repeat offender.

87. I cancel the Good Behaviour Order made on 4 September 2020.

88. I confirm the conviction for dishonestly driving a motor vehicle without the owner's consent and sentence you to 12 months imprisonment, commencing on 11 February 2023 and ending on 10 February 2024.

89. I confirm the conviction for refusing to provide an oral fluid sample and I sentence you to three months imprisonment, commencing on 11 December 2023 and expiring on 10 March 2024.

90. I convict you of dishonestly riding a motor vehicle without the owner's consent and I sentence you to 14 months imprisonment, commencing on 11 August 2023 and expiring on 10 October 2024.

91. As to the conviction for dishonestly driving a motor vehicle without the owner's consent, had you not pleaded guilty, I would have sentenced you to 18 months imprisonment instead of 14 months imprisonment.

92. As to the sentence for aggravated dangerous driving as a repeat offender, I would have sentenced you, had you not pleaded guilty, to 12 months imprisonment instead of 9 months imprisonment.

93. And as for the offence of theft, had you not pleaded guilty, I would have sentenced you to 12 months imprisonment instead of 9 months imprisonment.

94. As to the offence of driving whilst disqualified from obtaining or holding a driver licence as a repeat offender, had you not pleaded guilty, I would have sentenced you to seven months imprisonment instead of five months imprisonment.

95. Mr Massey, you may be seated.

96. This is an overall sentence of three years and eight months imprisonment. Mr Massey has again asked that I make a Treatment Order, and having now imposed the sentence, I will consider doing so.

97. I must first consider the eligibility of Mr Massey under s 12A of the Sentencing Act. The offence of dishonestly driving a motor vehicle without the owner's consent is an eligible offence and I have imposed for it a sentence of 14 months imprisonment, which is greater than the minimum of 12 months imprisonment for eligibility, and the total sentence is less than the maximum eligible period of four years imprisonment. Mr Massey is not subject to any other ‘sentencing order’ within the meaning of that section: s 12A(1)(c) of the Sentencing Act.

98. In addition, I am satisfied that Mr Massey is dependent on a controlled drug, namely both cannabis and methamphetamine. I am also satisfied that this dependency substantially contributed to the commission of all the offences. No concern has been expressed by any victim that they may have concerns about their safety or welfare. I have also considered the objects of Treatment Orders, as set out in s 80O of the Sentencing Act.

99. An issue has arisen about Mr Massey's residence in the ACT for the term of the sentence which has yet to be served, namely for a period of three years and just under four months. As to this specific eligibility requirement, the provision is simply set out in s 12A(2)(a)(iii) of the Sentencing Act, namely that the court must be satisfied, on the balance of probabilities, that ‘the offender will live in the ACT for the term of the sentence except as directed by the court’. In particular, there is no mention of the quality or desirability of such residential arrangements.

100. Mr Massey has generally lived in the ACT, although he did spend some periods with extended family members, especially in Queensland and in Perth. The circumstances of his departure from Perth, as set out in R v Massey (No 1) at [65], suggests that it is unlikely he will wish to return there. He did move to Queensland, but returned to Canberra when he was around 17 years old. He seems to have had some problems in Queensland too, with an uncle, which also suggests that it is not likely either as a further destination.

101. He has expressed a preference to live with his mother who, due to her incarceration, has been absent for a significant period of his life, but did, however, spend the longest period of time raising him, and that although the option to live with her is available, it is not clear that it would be in his best interests to live there when engaged in rehabilitation. I am nevertheless satisfied that he is likely to remain in the ACT for the next three or four years, or even longer, which is the criterion involved, even if this may involve his mother's place, which may not be the most desirable residence for him.

102. I am also satisfied that Mr Massey has had the Treatment Order explained to him in sufficient detail for him to be able to make a balanced judgment about whether to consent to the making of such an Order, and that he has had an opportunity to ask any questions he has about it and has had such questions answered.

103. Accordingly, I am satisfied that he is eligible to be subject to a Treatment Order.

104. I have read the Suitability Assessments as noted above (at [5]) and have taken the opportunity to read them carefully. They have been thoughtfully and expertly prepared and are of great assistance in deciding how to proceed.

105. The Suitability Assessment of the Alcohol and Drug Services of Canberra Health Services assessed that Mr Massey is suitable for a Treatment Order. It recommended, in the carefully prepared attached Case Plan, that he initially complete the six month long residential rehabilitation program at Canberra Recovery Services in Fyshwick, which program has been described in R v Ngerengere (No 3) [2016] ACTSC 299 at [68].

106. On the other hand, the revised Suitability Assessment of ACT Corrective Services, which originally recommended Mr Massey as suitable for a Treatment Order, re-assessed him as not suitable for one. This is based on the lack of suitable accommodation while he is undergoing rehabilitation, and his failures in the past to comply with community-based orders, including, of course, most recently, the Good Behaviour Order from earlier this year, which he breached in less than a month, and also his history of reoffending during supervision periods or shortly after being released from custody. The Crown further submitted that, on the last occasion a Treatment Order was considered, he had reoffended while the process was being completed, even while he was in custody. ACT Corrective Services further suggest that he attempt to complete the 20-week Solaris Therapeutic Community program, prior to his release from custody, ‘to demonstrate his motivation to complete a similar program in the community.’

107. These are important issues and must be carefully considered. So far as the issue of his residence is concerned, the position is not entirely simple. The issue of unsuitability is an important marker which assesses the capacity Mr Massey may have to complete a Treatment Order without relapse. Thus, to live with anti-social associates would clearly risk his success. To live with other users of illicit drugs would at least initially put a pressure on him to relapse, though, over time, it is hoped that he would be able to resist those influences, and preferably not be tempted by them.

108. ACT Policing has concerns that Mr Massey's mother's residence and its occupants are linked to criminal activity. This clearly makes it an undesirable residence for an offender subject to a Treatment Order. Mr Massey has identified another residence, at an address of a friend of his mothers who is willing to accommodate him, but it has not yet been assessed. If he were to enter Canberra Recovery Services, however, it should be noted that they have increased their work in ensuring that participants in their program are able to transition to suitable accommodation, and indeed appear to have already increased their options in this regard. Indeed, the agency is reported to be ensuring that participants are, unless discharged, not exiting into homelessness.

109. Thus, if Mr Massey is admitted to the Canberra Recovery Services program, he will have suitable accommodation for the period of the program and there will be a high likelihood that there will be suitable accommodation available to him at the end of that time. While Mr Massey does not have, at this stage, such suitable accommodation, as yet identified, it will be a condition of any Treatment Order that this be identified before he completes the residential drug rehabilitation program.

110. I note that an assessment of whether a person has suitable accommodation is only a matter relating to the statutory suitability for a Treatment Order under s 12A of the Sentencing Act if the offender will not live in the ACT, or if a member of the household where the offender proposes to live does not consent to him or her being there.

111. This is a more general consideration and thus, a potential impracticability of compliance with a Treatment Order. I note too that Mr Massey has had accommodation with the Justice Housing Program, though he preferred to live with his mother at that time. While his arrangements following the residential program are clearly an issue, I am not satisfied that they will not be resolved during the course of the Treatment Order. The failure by Mr Massey to comply with previous community orders is, of course, a matter of concern also.

112. It is clear, however, that he has been significantly dependent on illicit drugs. While under that influence, it is unsurprising that this alone, without being addressed, will make it difficult to comply with court orders. This, of course, does not excuse such non-compliance, but it does identify a cause which, if addressed, is more likely to resolve the difficulty he experiences. The question, however, is whether he is ready for and committed to rehabilitation. There are some indications of this.

113. While Mr Massey demolished his opportunity to engage in rehabilitation by engaging in drug use, despite a bail condition to the contrary, by further offending and by being dishonest (as to which, see R v Massey (No 2) at [6]-[17]), the current situation is more hopeful. He has shown some limited commitment to attempting to engage in the Solaris Therapeutic Community. This shows a recognition that he must engage in more serious forms of rehabilitation and this requires residential drug rehabilitation. That he did not continue was described as follows: He self-discharged after three weeks due to the difficulties he experienced with opening up and being vulnerable in a correctional setting, as mentioned above (at [45]).

114. While pointing at possible problems with his resilience when in the community, it is nevertheless an understandable fear that he experiences given the nature of correctional settings and his age, which I have already noted above (at [46]). His failure to follow up the invitation that the making of a Good Behaviour Order gave him to engage in rehabilitation is also of concern. Perhaps it would have been preferable to have it supervised in a parole context, but he was, in any event, subject to a probation condition which could have been used to require rehabilitation. There is no evidence it was so used.

115. Further, there has been no evidence of misbehaviour by Mr Massey whilst in custody since the current offending led to his arrest. Of course, there was significant misbehaviour soon after he was released from imprisonment for the last occasion of offending, both in drug use and in crime. Mr Massey has shown some insight into accepting that his current dependency does require a residential drug rehabilitation program, something that he has previously been reluctant to embrace: see R v Massey (No 2) at [17].

116. As Mr Massey moves into adulthood, it would be, at least, unfortunate if there were signs of improvement that were not encouraged and it would be, at least, useful to provide a more intensive supervision regime, as would be provided by a Treatment Order, that may build on these hopeful signs and enable him to move beyond the lifestyle he would have inevitably been destined to live out if he were to be without any appropriate intervention. To suggest that he complete the Solaris Therapeutic Community program when he has identified barriers to his participation has an initial attraction, but on further consideration, it does not seem likely to provide a good measure of whether he can participate in what is proposed. I have not identified any indications of unsuitability for a Treatment Order under Table 46K of the Sentencing Act.

117. Accordingly, despite the recommendation of ACT Corrective Services as to his unsuitability, I consider that he is suitable and that it is appropriate to make a Treatment Order with a component of residential drug rehabilitation. There can, of course, be no guarantees of success, but that applies with every offender who seeks a Treatment Order.

118. I note that, finally, Mr Massey has served some of the sentence already in pre-sentence custody so that the sentence I have made will not be wholly suspended, but will be, instead, partially suspended. It will, however, be wholly suspended from today, the date of the imposition of the sentence. That does not prevent me from making a Treatment Order for the reasons set out in R v Crawford (No 1) at [91]- [111].

Drug and Alcohol Treatment Order

His Honour then spoke directly to the accused again:

119. Mr Massey, please stand.

120. I make a Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) for you for two years from today, commencing on 15 June 2021 and ending on 14 June 2023, in respect of the primary offence of dishonestly driving a motor vehicle without the owner's consent, of which you have been convicted and for which you have been sentenced to 14 months imprisonment.

121. That Order is extended to the offences of dishonestly driving a motor vehicle without the owner's consent, aggravated dangerous driving as a repeat offender, theft (jointly committed), driving whilst disqualified as a repeat offender, refusing to provide an oral fluid sample, and dishonestly riding a motor vehicle without the owner's consent, of which you have been convicted and for which you have been sentenced and which are the associated offences of the primary offence.

122. I note that the convictions for the primary offence and the associated offences have been recorded and that sentences have been imposed for each of them, which convictions and sentences are hereby incorporated into the Drug and Alcohol Treatment Order as the custodial part of the Order.

123. The custodial period of the Drug and Alcohol Treatment Order for the primary and associated offences are hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 15 June 2021, until 10 October 2024.

124. Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), I require you to sign an undertaking to comply with the offender's Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT), from the day after the end of the Drug and Alcohol Treatment Order, that is, 15 June 2023, until the end of the total sentence, 10 October 2024, with a probation condition that you accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising you considers appropriate, and obey all reasonable directions of the person supervising you, including as to urinalysis, counselling, and treatment.

125. For the treatment and supervision part of the Drug and Alcohol Treatment Order:

(a) the core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed;

(b) I direct that you travel directly from this Court today to Canberra Recovery Services, Fyshwick, by means provided by the Alcohol and Drug Services and not with your mother, and admit yourself to the residential drug rehabilitation program there by 1:00 pm today;

(c) I direct that you to complete the residential drug rehabilitation program at Canberra Recovery Services, to not leave the facility until you have completed it, and to comply with all the directions of the person in charge of the program, and all the rules of the program and the facility;

(d) Should you leave or be discharged from the program before completing it, you report to ACT Corrective Services by 4:00 pm on the next business day with a view to having the Drug and Alcohol Treatment Order reviewed;

(e) You undertake any program or counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of the Team about where you reside, with whom you associate and your attendance from time to time;

(f) You comply with any directions of the Court from time to time about attendance at Court, in person or by electronic means.

126. I direct you to appear by electronic means in this Court on Friday 25 June 2021 at 12:30 pm.

127. I direct you to attend the Court Registry before you leave the Court precincts today to sign a sealed copy of this Order and an undertaking to comply the Order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period this Order is in force.

128. Mr Massey, that is a lot of words. You probably understand quite a lot of it because you have been around the courts for a while, but I am obliged to explain to you what this means. Basically, what it means is that the fresh offending, in the circumstances in which you committed it, together with the offences that were subject to the Good Behaviour Order, justify a total sentence of imprisonment of three years and eight months. I do not expect you now to serve any of the remainder of that sentence, some of which you have already served in custody, if you take the opportunity which you say you want, to rehabilitate and put your dependency on illicit drugs and your life of crime behind you, so that you can get on with the business of life and making something of yourself, developing your potential, which I am sure you have, and integrating into the community sensibly.

129. If you wish to do that, if you are genuine about that and do not play stupid games, thinking that you are smarter than you are and trying to do silly things along the way, then this Court will help you. There will be people here who will support you and help you through the tough times that will inevitably happen, as well as the times that are going to be a bit easier for you. They will help to direct you in the way that you will need to go in order to put this negative cycle of offending and re-offending behind you. You are young enough now to be able to do that, and you are young enough to be able to have a life in front of you which you can enjoy and not have to live a life in and out of prison, which is not a life for anyone. Your parents would have, given their experiences, told you that. You know that that is what you do not want to have to happen to you, but it will be tough.

130. It is not going to be easy all the time. There will be difficulties. If you are prepared to address those, confront them, work them through, then you will become stronger and you will succeed.

131. The most important thing, and it is difficult, is to be honest with yourself and with your counsellors. It is probably more difficult to be honest with yourself than with your counsellors, but it is really important that you do that. Think about where you have been, where you want to go and how you can address that.

132. In addition, it is important that you stick at this. Show that you have got a bit of stamina. Show that you have got a bit of resilience. Show that you have got a bit of persistence, because there will be times that are hard, but there will also be people who can help you through those difficulties. You will see a lot of me, I am afraid, in the next month or so because you will be required to come back every week, after an initial period in Canberra Recovery Services, and check in with the Court about your progress. If you have been good, we will support you and encourage you. If you have been bad, you will have to be sanctioned, and at the end of the day, that can include cancelling the Treatment Order and sending you back to serve all or part of the three years and eight months imprisonment. That is hanging over your head. I do not want you to be frightened by that possibility because you can avoid that by the efforts you make, if you are really committed to it. But that may happen.

133. The worst thing you can do is to think, this is all too tough, and run away. If it is tough, come and talk to me about it. You can do that confidentially, although not entirely, there will be people in the Court, but, if there is someone in the Canberra Recovery Services who is causing you difficulties, whether it is another participant or a staff member, and it is obviously a bit difficult to talk about that in the presence of such a person, then talk to your lawyer and you can then come to Court and we will make arrangements for you to discuss that confidentially.

134. So you do not have to say, ‘this is too hard, I am going to take off’. That would be fatal. You would inevitably end up serving the entire sentence, or the large part of that sentence. Do not think that you will escape detection. There is no one who has run away from this Program who has not been arrested. Sometimes it takes a long time, but that only makes it harder when you have got to go back to prison after being out for some time. So, do not run away. Raise your problems with me and we will try and solve it. Judges do have quite a lot of power. I do not have all power. I cannot solve everything. But often, I can point you in the right directions or link you up with people who can help you solve those problems.

135. If it is getting really hard, then raise it. If, stupidly, you do run away, come back. Go to see ACT Corrective Services by 4:00 pm the next day. Come back to this Court and we can possibly consider something. I do not guarantee it, and it may be that your actions justify cancelling the Treatment Order. But nevertheless, it can be done. If you just run away and do not come back, there is no hope.

136. I hope this works for you. I wish you luck. But you will need your own strength too; your capacity, your own willingness to do this and we will get through it. I do not want you to be under any misapprehension that it is not going to be tough. You have spent a long time living this lifestyle, and it is hard to change habits and behaviours, but you have come to the right place to do it, if you are committed, and I hope you are.

137. You may be seated.

I certify that the preceding 137 [one hundred and thirty-seven] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge.

Associate: Samuel Xiang

Date: 28 July 2021