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[2016] ACTSC 285
Supreme Court of the ACT
2016-09-08
Refshauge J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - burglary - theft - guilty plea - breach of Good Behaviour Obligations - actions following the breach - specific deterrence - illicit drug use connected with offending - residential rehabilitation a relevant consideration in the sentencing process - re-sentence - concurrency and totality of sentence - suspended sentence
Crimes (Sentencing) Act 2005 (ACT) ss 7, 12, 27, 33
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 98(2), 98(3)
Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506
R v Elphick (No 2) [2015] ACTSC 23
R v JM [2014] ACTSC 380
R v Kekalainen (No 2) [2015] ACTSC 369
R v Kristiansen [2015] ACTSC 159
R v Matthew Peter White [2015] ACTSC 254
R v McMahon [2014] ACTSC 280
R v McGrail [2016] ACTSC 142
R v Verdins [2007] VSCA 201
R v White [2014] ACTSC 158
Saga v Reid [2010] ACTSC 59
Legal Aid ACT (Defendant)
1. It is important in a civilised society that people can feel safe and their property is secure. Hence, conduct that puts that safety and security at risk is made a crime and the courts are required to do what they can to prevent crime. Courts do this by sentencing offenders who commit such crimes. This includes punishing those who commit crimes to show that such behaviour is unacceptable to try and stop others from committing those crimes, or the offender from repeating them, and helping to restore confidence by vindicating the damage and unease felt by the victims of crime. An important and enduring way to protect society is to rehabilitate those who have, by committing crimes, shown a propensity to break the protective laws of the community. See Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 at 537; [32].
2. Now appearing before me is Matthew Peter White, who committed the offences of burglary and theft on 21 May 2013. I originally sentenced Mr White for those offences on 5 June 2014. See R v White [2014] ACTSC 158.
3. In doing so, I balanced the various purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) by imposing a term of imprisonment, but after taking into account pre-sentence custody, suspending that term, and making a Good Behaviour Order, as required by s 12 of the Crimes (Sentencing) Act.
4. The purpose of such an Order is to permit an offender to serve the sentence of imprisonment in the community, principally to allow him or her to participate in rehabilitation which can, in this Territory, also be done in some respects in custody, for example, through, the Solaris Therapeutic Community Program (described in R v JM [2014] ACTSC 380 at [26]). If it can be achieved, rehabilitation is often better done in the community, in a less structured setting, with its temptations and risks, and where an offender will usually have ultimately to live.
5. Conditions of a Good Behaviour Order include statutory conditions and specific
court-ordered conditions. Under s 86 of the Crimes (Sentence Administration) Act 2005 (ACT), one of the statutory conditions is that an offender subject to such an Order must not commit any further offences punishable by imprisonment.
6. Unfortunately, on 4 November 2014, Mr White committed the offences of minor theft of which he was convicted in the Magistrates Court on 5 March 2015. This constituted a breach of the Good Behaviour Order that I had made. I re-sentenced Mr White on 18 August 2015: R v Matthew Peter White [2015] ACTSC 254. For reasons there explained, including the relatively minor nature of the offence then committed, I re-sentenced him to 15 months imprisonment to commence on 15 June 2014, to take into account pre-sentence custody, but again suspended it with a Good Behaviour Order for two years from the date of sentence.
7. It was clear to me, and I noted in the 2014 decision at [44]:
It is clear that Mr White was affected by alcohol or drugs when the original offences were committed but clearly it was in part to fund his drug habit from the proceeds.
8. The circumstances of his offending that breached the second Good Behaviour Order that I made were also part of this continuing drug abuse. As a result, I was prepared to suspend the sentence of imprisonment again because he had been accepted into the residential drug rehabilitation program conducted by the well-known and respected Canberra drug agency, Karralika. I have described that program in R v Kristiansen [2015] ACTSC 159 at [12]- [14].
9. Thus, I made conditions for the Good Behaviour Order requiring him to undertake preliminary steps preparatory to entering the Karralika Program and then to enter and complete the Program. I also required him, if he left or was discharged from the program, to return to Court within 24 hours.
10. Mr White did complete the preliminary steps and did enter the Program. He entered with his partner, also a drug user.
11. Unfortunately, his partner's flat was subject to damage and he felt that he needed to attend to that and its consequences, so he and his partner left the Karralika Program on 19 November 2015. That breached the conditions of the Good Behaviour Order.
12. In compliance with the conditions of the Good Behaviour Order, however, Mr White did present himself to Court for re-consideration of the terms of the Good Behaviour Order.
13. Under s 112 of the Crimes (Sentence Administration) Act, the terms of a Good Behaviour Order may be varied on application by, amongst others, the offender.
14. Under s 110 of that Act, however, a Court must cancel a Good Behaviour Order if satisfied that the offender has breached the Order.
15. It is a matter of concern to me that there is no ameliorating provision for that cancellation requirement, such as appears in s 98(2) and (3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which would permit me to take no action on the breach, thus permitting the variation of the Good Behaviour Order. This would be a desirable inclusion and a welcome reform in this jurisdiction.
16. Thus, if Mr White had approached the Court with a request that the conditions of the Good Behaviour Order be varied before he left Karralika, he could, were such variation to have been made, left Karralika without a breach. I would, of course, have had to be satisfied that there were other conditions that could be imposed to continue the mandated rehabilitation, and which I would be satisfied protected the community adequately.
17. Nevertheless, that option was not available to me.
18. Mr White admitted the breach. As noted above, s 110 of the Crimes (Sentence Administration) Act requires me to cancel the Good Behaviour Order and to impose the sentence that was suspended or to re-sentence Mr White.
19. The Crown understandably and quite properly urged me to impose the sentence I had suspended. It was submitted that the offences were serious, as indeed they were, and the justification for Mr White not serving the penalty of imprisonment in full-time custody was that he complete a residential drug rehabilitation program, clearly a more restrictive process with, by virtue of its residential nature, less risk for the community than Mr White simply being in the community.
20. Mr White was fortunate that in November 2015, I was on sick leave and not due to return to Court work until February 2016. As a result, Mr White came before another judicial officer upon his presentation to Court, as required under the Good Behaviour Order, and was not remanded in custody, but was granted conditional bail.
21. Thus, he had been in the community for over two months when he appeared before me on 2 February 2016. I had, at that stage, a Pre-Sentence Report and a Report from the Court Alcohol and Drug Assessment Service (CADAS).
22. The Pre-Sentence Report was guarded but showed distinctly positive aspects of Mr White's conduct since leaving Karralika. It did recommend that a Deferred Sentence Order under s 27 of the Crimes (Sentencing) Act might be a beneficial disposition. The CADAS Report was more positive. It noted that a report from Karralika showed that, while there, Mr White had "engaged well" and that he was welcome to re-apply for admission. He had remained in contact with CADAS, was participating in a methadone program, where he had been consistent with treatment, and had been honest in his discussions with CADAS, including an admission of consumption of heroin since leaving Karralika. He expressed a determination to work towards abstinence, motivated by his desire to have contact with a daughter who is under the care of Care and Protection Services. This had been partially achieved with supervised contact visits now permitted.
23. I also had a report from the Canberra Alliance for Harm Minimisation and Advocacy (CAHMA) where Mr White was a regular client. He had undertaken two education sessions and other activities. He attended an eight-week course on "Bringing Up Great Children". His demeanour and health were said to have shown "marked improvement".
24. As a result, I continued Mr White's bail but imposed strict conditions including as to residence, supervision, participation in the SMART Recovery Program (which I have described in R v McGrail [2016] ACTSC 142 at [78]- [80]), continuance of his participation in the methadone program, a prohibition from consuming illicit drugs, and ongoing monitoring the CADAS. I also sought, as recommended by the Pre-Sentence Report author, a Forensic Mental Health Assessment.
25. Mr White then appeared before me a number of times as he was, in effect, judicially monitored while on bail, rather similar (though with substantial differences) to a Drug Court process. During this time, I had a number of Pre-Sentence Reports and Reports from CADAS. It is not necessary to recite all that material. As I pointed out in Saga v Reid [2010] ACTSC 59 at [89], it can take a number of attempts to rehabilitate a drug offender from the pernicious habit and often judicial supervision and encouragement can be important to make a difference.
26. He maintained throughout this period his participation in the methadone program; he conducted himself adequately enough to be permitted to collect his doses from a community pharmacy, where he was generally dosing reliably, was described as "stable", and where staff reported no concerns about his behaviour.
27. He continued to be subject to urinalysis, which initially showed positive results for cannabis, though that was shown to be decreasing over the period. Worryingly however, later urinalysis showed, after initial abstinence, presence of methylamphetamine and amphetamine, but more recently these again have been absent.
28. Mr White's engagement with ACT Corrective Services has been poor and minimal.
29. Mr White initially failed to engage with CADAS but later improved his engagement with that agency and more recent reports have been positive. Some of the earlier problems were said to be the result of him making honest mistakes about appointment dates. Given the likely chaotic life Mr White lives, that was likely to be correct.
30. On 24 June 2016, I directed that he attend the SMART Recovery Program and he did so. He continued to attend and, indeed, attended four sessions in August 2016. He was described as "demonstrating a willingness to pro-actively engage in therapeutic support around his substance use".
31. On 19 February 2016, he was convicted by the Magistrates Curt of an offence of minor theft. That, however, was committed on 24 May 2015. I had no information as to why it had taken so long to be prosecuted. He has not been prosecuted for any offences committed since that date and the Crown did not suggest any further offences alleged to have been committed by him were under investigation.
32. The Forensic Mental Health Report that I ordered and which I admitted into evidence, showed no diagnosable mental illness. He was, however, diagnosed with an amphetamine, methamphetamine, and cannabis use disorder, and anti-social personality disorder and dysthymia. He was not showing any signs of post-traumatic stress disorder nor bipolar disorder, the latter diagnosis of which was said to have been in error. There was said to have been no connection between Mr White's mental health and his offending.
33. I note that clearly the use of illicit drugs was connected with his offending and insofar as he has been diagnosed with an amphetamine, methamphetamine, and cannabis use disorder, that was relevant to his offending, but I understand the context of the mental health report comment was in terms of R v Verdins [[2007] VSCA 201], which in my view, is not particularly relevant in this case.
34. I also note that Mr White is now eligible to have his driver licence restored as he has completed the periods of disqualification that have been imposed. That will give him a better opportunity to obtain employment. It will also allow him, if he wishes, to leave Canberra.
35. In determining how to proceed, I must apply the ordinary principles and requirements of sentencing under the Crimes (Sentencing) Act: s 110(4) and the Crimes (Sentence Administration) Act. That requires an appreciation of the seriousness and circumstances of the offences, the personal circumstances of Mr White, and general sentencing principles.
36. Much of this has been dealt with in the earlier sentencing decisions and I do not need to repeat the details here. I take into account what I have earlier said and so far as it is appropriate, incorporate that into these reasons.
37. The offences of burglary and theft are serious offences attracting significant maximum penalties, including lengthy terms of imprisonment. On the other hand, the offences committed by Mr White did not have many aggravating features which would require very severe penalties. I noted, for example, that the burglary was of commercial premises rather than residential premises. It was an unsophisticated offence, though there was some significant damage caused on entry.
38. As to personal circumstances, Mr White is now 36 years old. He had a good family environment as a child but experienced significant trauma which has obviously left emotional and mental scars.
39. He completed Year 12 at school, but was an average student. He gained employment of an unskilled kind, but, when he lost his licence due to drug driving, he was unable to maintain continuous employment, though he did have some employment.
40. He has had a long drug and alcohol habit since age 15. He has had some rehabilitation, including in 2005 in Wollongong, in Brewarrina, and in Canberra. While it has taken some time, he appears to have learned from these experiences and has begun to be able to manage abstinence. This is somewhat recent and is no doubt still fragile.
41. On the other hand, he wishes to make a new start and there is much to commend that he be out of Canberra where peers and associates are involved in the drug culture. Association with them will put his rehabilitation at risk.
42. Mr White has a long history of offending. He has, including these offences, 58 offences on his criminal record. He has spent periods in prison. Many of the offences are dishonesty offences, but apart from some burglary offences many years ago, most of these are minor theft offences, not trivial or inconsequential, but less serious than, for example, burglary and theft offences.
43. Mr White has had a significant period in custody. He was in custody from 21 May 2013 to 3 March 2014, on these offences, a total of 286 days. That is close to the non-parole period that might have been set for the original offences under the original sentence.
44. Indeed, in addition, he has spent significant time in residential drug rehabilitation facilities. He spent 90 days in the Orana Haven facility, 87 days in preparatory detoxification, and then in Karralika. This total of 177 days is relevant and can be considered in the sentencing process for the restrictions of movement and reduced liberty it provides. See R v Elphick (No 2) [2015] ACTSC 23 at [86]- [90].
45. It is significant that Mr White has been charged with no further offences since 24 May 2015. In addition, he appears now to be abstinent from drugs, although the absence of recent urinalysis makes that a little uncertain. I hope this is not evidence of me being over optimistic.
46. I have regard to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act. In this case, there is a need for punishment and general deterrence. There is a need for specific deterrence also as I assess Mr White's rehabilitation as fragile and needing considerable encouragement which potential sanction may support.
47. His rehabilitation, however, needs to be recognised and further facilitated.
48. I take into account the seriousness of the offences which I have described earlier (at [37]) and in the earlier sentencing remarks. They do not, however, require in all the present circumstance further periods of full-time custody.
49. I take into account Mr White's plea of guilty. It was entered in the Magistrates Court and so is deserving of a significant sentencing discount, although it was not entered at the very earliest opportunity.
50. I have regard to the matters set out in s 33 of the Crimes (Sentencing) Act. So far as I know them, they are set out in these reasons and in R v White and R v Matthew Peter White, which I consider to be incorporated in these reasons.
51. I am conscious of the principles surrounding the sentencing of offenders following a breach of a Good Behaviour Order. I specifically refer to what I said in R v Matthew Peter White at paragraphs [25]-[27] and apply that approach.
52. The breach here is a significant one, but much moderated by two matters. In the first place, Mr White complied with the obligation that he had to return to Court after leaving Karralika and secondly, he has persevered, not without some failures, with his rehabilitation.
53. In my view, it is not necessary to impose the sentences of imprisonment that were suspended but to re-sentence him.
54. Nevertheless, the seriousness of the offences and the limited leniency that his prior record permits means that a sentence of imprisonment is the only sentence. I can also take into account and, I do, the time that he has been on the Good Behaviour Order and the efforts that he has made, particularly in Orana Haven and in Karralika towards rehabilitation. I take those matters into account as indicated in R v Kekalainen (No 2) [2015] ACTSC 369.
55. As there are two offences, I must consider issues of concurrency and totality. As before, I see no reason not to make the sentences for both offences concurrent. See R v McMahon [2014] ACTSC 280 at [94].
56. I propose to suspend the sentence of imprisonment. That requires, under s 12 of the Crimes (Sentencing) Act, that I make a Good Behaviour Order.
57. A common condition is a probation condition, especially when rehabilitation is not secure, as in this situation. On the other hand, Mr White has had a problematic relationship with supervision, though his relationship with the staff of CADAS shows that he is not merely anti-authoritarian or defiant as to supervision obligations. It would be a pity if a condition set him up to fail because of difficulties in complying with it of which I am already aware.
58. Further, Mr White tells me that he feels he cannot move out of Canberra while he is under supervision, however he has no clear destination yet.
59. I have given the matter anxious thought and in all the circumstances consider that he should be given the chance to show that he has really turned a corner and can start afresh.
1. I cancel the Good Behaviour Order made on 13 August 2015.
2. I confirm the conviction for burglary at Braddon on 21 May 2013.
3. I sentence you to 15 months imprisonment to commence on 31 August 2015 to take into account pre-sentence custody and the periods spent in residential drug rehabilitation. Had you not pleaded guilty, I would have sentenced you to 20 months imprisonment.
4. I suspend that sentence today for a period of 12 months.
5. I require you to sign an undertaking to comply with the offender's Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months from today.
6. I confirm the conviction for theft of electronic equipment on 21 May 2013.
7. I sentence you to nine months imprisonment to commence on 31 August 2015 to be wholly concurrent on the sentence for burglary. Had you not pleaded guilty, I would have sentenced you to 12 months imprisonment. I note that this sentence has now been fully served.
61. Mr White, you have been around long enough to probably know what I have just done but I am required to explain it to you and I want to make some further remarks directly to you as well. I have re-imposed the imprisonment for the two offences but I have backdated it, partly because you have already spent a long time in prison on these offences, but also you have spent considerable time in drug rehabilitation in residential facilities, and I have given approximately half of that period of time towards that. That means that you have now spent the theft sentence in custody and that is now out of the picture, but the 15 months imprisonment has not finished and I have suspended that for 12 months, so for the next 12 months you are still at risk of coming back and being sent to gaol if you commit further offences. That is the only test at the moment, committing further offences, because I have not made a probation condition for supervision.
62. You are now on your own in that sense. That is a big risk for you and I am concerned about that, but I think you are old enough now to hopefully have grown out of the drug culture that you have been immersed in for well over half your life. You have the skills from Karralika and from Orana to know how to stay out of trouble. I suspect if you get out of Canberra you would be better off. But I cannot guarantee that. There are drug addicts and drug pushers everywhere and you do not have a great record in keeping out of trouble, although in the last 15 months or so, you have not committed any further offences other than being in possession of and using drugs, which are offences in themselves, but which have not been prosecuted.
63. If you want to move out of Canberra, that may be a good thing, but you have to do that carefully and sensibly. You have to make sure that you maintain your Centrelink because we do not want you finding yourself without funds and therefore stealing other people's possessions, and thus being back in custody. If you are genuinely committed to a lifestyle where you can have a family, where you can have some employment, where you can be a useful member of the community, then I am giving you this opportunity now; but you have to take it, and you do not have a lot of formal structure around you to protect you. That is a risk I am prepared to take and I hope you will not disappoint me.
64. If problems arise, and they will, life is not easy and drug addiction is pernicious and has a very strong hold on people, then you know where you can go. CAHMA is a good start. A men's centre, such as EveryMan, is another place that you can go. Karralika, of which you are an alumnus, have said that they would talk to you and have you back. You have had good experiences with Directions. These are some of the places you should go if the urge takes you. You should seek help and I strongly encourage you to do that because you now have an opportunity to start afresh, to draw a line under things. I am impressed by the efforts you are making but it is only recently that you are abstinent. Your urinalysis in July illustrated drug use and that is not a long time abstinent. But ultimately the Court cannot sit on your shoulder, no one can; you have to do it on your own and I think you are ready for that. I hope that, as I say, you will not misuse this opportunity I have given you, you will not put the community at risk, and you will not fall back into drug use. I genuinely wish you good luck.
I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.
R
Matthew Peter White
(2011) 243 CLR 506