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[2017] ACTSC 299
Supreme Court of the ACT
2017-10-09
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 - damaging property - possession of stolen property - assault - failing to appear in accordance with a bail undertaking - subjective circumstances - prior deferred Sentence Order to attend residential drug rehabilitation - periods of imprisonment interstate - offender responsible for much of the delay - totality of sentence - stale offences - childhood disadvantage - remorse - general deterrence - specific deterrence - sentenced to a period of imprisonment
STATUTES - LAW REFORM - Transfer of charges - charges bearing a relevant connection - breach of bail - jurisdiction of the Court to deal with an accused who fails to accord to their bail undertaking - s 90B of the Magistrates Court Act 1930 (ACT)
Crimes (Sentencing) Act 2005 (ACT), ss 33, 71, 118
Criminal Procedure Act 2009 (Vic), s 243
Magistrates Court Act 1930 (ACT), ss 90A(10), 90A(11), 90B
Aitchison v DPP (ACT) (1996) 135 FLR 217
Bell v DPP [1985] AC 937
Bugmy v The Queen [2013] HCA 37; 249 CLR 571
DJL v The Central Authority [2000] HCA 17; 201 CLR 226
Hazeldell Ltd v The Commonwealth [1924] HCA 36; (1924) 34 CLR 442
Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23
Jovanovic v The Queen [1999] FCA 1008; 92 FCR 580
McCurley v Naspe [2013] ACTSC 256
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Nahlous v The Queen [2010] NSWCCA 58; 77 NSWLR 463
Nguyen v The Queen [2012] VSCA 297; 272 FLR 58
Parkinson v Alexander (No 2) [2017] ACTSC 290
R v Forrest (No 3) [2017] ACTSC 168
R v Harrison (1990) 48 A Crim R 197
R v Hoar (1981) 148 CLR 32
R v JM [2014] ACTSC 380
R v Klobucar (No 4) [2016] ACTSC 348; 316 FLR 1
R v Loulanting [2015] ACTSC 172
R v McMahon [2014] ACTSC 280
R v McMahon [2015] ACTSC 14
R v Scott [1993] FCA 398; (1993) 42 FCR 1
R v Trewin [2015] ACTSC 157
Saga v Reid [2010] ACTSC 59
Short v The Queen [2016] VSCA 210
Simonds v The Queen [2013] ACTCA 13
Ursino v Read [2005] ACTSC 106
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice Report (2017) vol 2
Jeffery L Harrison, "Spite: Legal and Social Implications"
1. Jason Andrew McMahon appears before me to be sentenced for 12 offences, the first of which was committed on 14 May 1997, now over 20 years ago.
2. Mr McMahon committed nine property offences in May 1997. He was, thereafter, bailed from time-to-time to attend residential and drug rehabilitation facilities on five occasions. On each occasion, he failed to complete the designated program and failed to return to Court in accordance with the bail undertaking into which he entered on each occasion.
3. Since then, as well as committing offences of failing to appear on 10 June 1998 in accordance with his bail undertaking, he committed an offence of assault and an offence of damaging property on 1 January 2008.
4. He also committed various offences in New South Wales and Victoria for which he was sentenced to terms of imprisonment. Those terms of imprisonment delayed the further sentencing of him for the offences in this Territory.
5. On 24 July 2014, I made a Deferred Sentence Order so that Mr McMahon could enter the residential drug rehabilitation agency, Bennelong's Haven, in New South Wales. See R v McMahon [2014] ACTSC 280 (R v McMahon (2014)).
6. He was, however, arrested in New South Wales before he could enter Bennelong's Haven and sentenced to a further term of imprisonment. He was extradited to face the charges here further and I agreed to extend the Deferred Sentence Order to allow him to complete the program at Bennelong's Haven. See R v McMahon [2015] ACTSC 14 (R v McMahon (2015)). He was bailed to appear in Court again on 11 March 2015.
7. Despite my assessment of his more determined commitment to his drug rehabilitation and willingness to finalise these matters, he did not return to Court on 11 March 2015, or at all on his own volition.
8. He was arrested on 18 August 2017 and has remained in custody since then. Now he is to be sentenced for 14 offences, which included the former offences, but also for two further offences of failing to appear in accordance with his bail undertaking, however the latter offences raise a complication.
9. In addition to the offences of burglary, theft, damaging property, possession of stolen property and assault, Mr McMahon has been charged with various bail offences. The only offence under the Bail Act 1992 (ACT) is created by s 49 which provides for a maximum penalty of 200 penalty units and imprisonment for two years for the offence of giving an undertaking to appear before a court and failing to carry out that undertaking.
10. On 27 February 2008, Mr McMahon was committed to this Court for sentence on his pleas of guilty to various charges. Those charges included the following offences against s 49 of the Bail Act: one committed on 10 June 1998, of which I convicted him on 24 July 2014 and for which I must now sentence him; one committed on 17 December 2007, a plea to which Mr McMahon did not adhere and of which he was, therefore, not convicted; and a further offence which is said to have also been committed on 10 June 1998.
11. As to the latter, it is difficult to conceive of two offences of failing to appear in accordance with a bail undertaking committed on the same day, but it may be that two bail undertakings were entered; one for each of two offences. If that were so, then, especially if each undertaking required him to appear at the same time, there would be no requirement for two sentences, for the culpability would be identical. Indeed, it may be that the laying of both charges would be an abuse of process of the kind referred to in Nahlous v The Queen [2010] NSWCCA 58; 77 NSWLR 463. Certainly, for the reasons explained in the R v Hoar (1981) 148 CLR 32 at 38, it would be quite wrong to impose two sentences. In any event, Mr McMahon did not adhere to his plea for that offence either.
12. The record is unclear in respect of the two offences to which he did not adhere to his plea. Ordinarily, when a person does not adhere to his or her plea of guilty, the Court, under s 90A(10) of the Magistrates Court Act 1930 (ACT), will remit the charges to the Magistrates Court to be dealt with further. The records of this Court do not show that this was done. The charges may remain in limbo and I have raised with the Crown prosecutor in this case, who has agreed to investigate the matter. It seems to me, given the staleness of the offences and the circumstances in which at least one of them was laid, that these matters should be terminated.
13. Mr McMahon was committed to this Court for sentence in relation to the three bail offences because, at that time, they were indictable offences within the jurisdiction of this Court, though triable summarily under s 375 of the Crimes Act 1900 (ACT). That changed when the definition of "indictable offence" in s 190 of the Legislation Act 2001 (ACT) was amended as from 9 September 2008 to make an indictable offence one punishable by imprisonment for more than two years. Thus, an offence against s 49 of the Bail Act ceased to be an indictable offence and became a wholly summary offence.
14. Since then, Mr McMahon has been charged with two further offences under s 49 of the Bail Act of breaching bail undertakings into which he entered - on 20 May 2015 and one on 7 August 2015. Both have been transferred under s 90B of the Magistrates Court Act to be dealt with by this Court under Pt 8 of the Supreme Court Act 1933 (ACT).
15. While these breaches were committed in relation to bail undertakings given in respect of the hearing of the offences in this Court, indeed, the ones for which I must now sentence him, I do not consider that I have jurisdiction to deal with them.
16. Section 90B of the Magistrates Court Act permits the Magistrates Court to transfer summary charges or indictable charges triable summarily to this Court when committing a person to this Court on an indictable offence to which the summary or indictable offence to which the summary or indictable charges triable summarily bear a relevant connection. The policy, which is good one, is that the one process, whether determining guilt or sentencing, should apply to the one incident or series of incidents that give rise to the charges. Without this provision, this Court has no jurisdiction to deal with summary offences other than on appeal or under any other supervisory jurisdiction of the Court.
17. Thus, the issue is one of jurisdiction and courts should be vigilant to ensure that they have the jurisdiction that they seek to exercise. As Isaacs J explained in Hazeldell Ltd v The Commonwealth [1924] HCA 36; (1924) 34 CLR 442 at 446, "[t]he very first duty of any Court, in approaching a cause before it, is to consider its jurisdiction".
18. The only offences that may be transferred to this Court under s 90B of the Magistrates Court Act are "back-up" or "related" offences. It is not necessary in this context to consider "back-up" offences further. In s 68CA of the Supreme Court Act, a related offence is defined as follows:
Related offence, in relation to an indictable offence (the first indictable offence), means an offence, other than a back-up offence -
(a) that is -
- (i) a summary offence; or
- (ii) an indictable offence that is capable of being dealt with summarily by the Magistrates Court under the Magistrates Court Act 1930, part 3.6 (Proceedings for offences punishable summarily); and
(b) that arises from substantially the same circumstances as those from which the first indictable offence has arisen.
19. Thus, in order for the Magistrates Court to decide whether an offence can be transferred to the Supreme Court when committing a defendant to this Court for trial or sentence for an indictable offence, it is necessary to decide whether it is a related offence, which requires a decision as to whether the offence is:
(a) summary or indictable but triable summarily; and
(b) arises from "substantially the same circumstances" out of which the indictable offence arose.
20. As Penfold J pointed out in R v Klobucar (No 4) [2016] ACTSC 348; 316 FLR 1 at 13; [58]:
Section 90B does not in my view permit the transfer to the Supreme Court, when an accused is committed for trial on an indictable offence, of all other outstanding charges which the accused happens to be facing, merely because they are summary or capable of being dealt with summarily and irrespective of their connection or lack of connection with the indictable offence committed at trial.
21. I have previously addressed that issue in R v Loulanting [2015] ACTSC 172 at [22], where I held that, in somewhat similar circumstances to those pertaining here, a failure to appear in accordance with a bail undertaking made in connection with a Deferred Sentence Order was not a related offence to the indictable offence for which the Deferred Sentence Order was made.
22. Whatever the expedience or efficiency of having the one court deal with offences that have a connection with each other, that does not give the court jurisdiction; only the statute does that.
23. It is regrettable that, where the Supreme Court grants bail, it cannot deal with the offence committed by the accused who fails to return to the Supreme Court in accordance with his or her bail undertaking. After all, the Supreme Court will have a full understanding of the circumstances under which the bail was granted and the culpability of the failure to comply. Nevertheless, that is the law.
24. Further, this omission in the law cannot be remedied by the procedure under s 90B of the Magistrates Court Act, for the breach of the bail undertaking is highly unlikely ever to be a back-up or a related charge to an indictable offence for which a defendant is committed to this Court. That is a matter that may deserve reform and I commend consideration of the issue to the relevant authorities. A provision such as s 243 of the Criminal Procedure Act 2009 (Vic) would solve the present difficulty.
25. In the present circumstances, however, I had no alternative but to remit the two most recent charges under s 49 of the Bail Act back to the Magistrates Court under s 68F of the Supreme Court Act: R v Trewin [2015] ACTSC 157. I have done that.
26. Sentencing for those offences will, of course, be a matter for the Magistrate who deals with the matters. This makes it difficult for the question of totality becomes quite problematic when different judicial officers are involved in the sentencing of the one offender at roughly the same time. I have referred to that problem in Parkinson v Alexander (No 2) [2017] ACTSC 290.
27. It may, therefore, be helpful for me to express some considerations that may be relevant and that I would have taken into account in sentencing for the bail offences. I accept that the failure to answer bail in accordance with a bail undertaking is a serious matter. Ordinarily it will result in a sentence of imprisonment: Ursino v Read [2005] ACTSC 106 at [12]. How that sentence is to be served is, of course, a matter depending on circumstances. It can be served concurrently with other sentences as in McCurley v Naspe [2013] ACTSC 256. It can, of course, be suspended.
28. In this case, the failures have been to report to this Court. Had I been sentencing Mr McMahon, then the relevant circumstances would include the terms of imprisonment I am now imposing, the staleness of the offences, the periods of imprisonment he has since served, and the need for protection of his vulnerable partner which seems to have motivated his failures to return to Court. These mean that I would likely have made the sentences for the bail offences wholly concurrent with my sentence. It is, of course, a matter for the relevant Magistrate.
29. I have set out in R v McMahon (2014) at [3]-[9], the maximum penalties for the various offences. The maximum penalty is, of course, an indication of the relative seriousness of the offence set by the legislature: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 133; [31].
30. I have also set out the facts relating to the offences in R v McMahon (2014) at [10]-[24]. I incorporate what I there said into these reasons. The facts may be summarised as follows.
31. On four occasions in May 1997, Mr McMahon entered residences in southern Canberra. He was accompanied by another person or other persons on three of the occasions and, on those occasions, smashed windows to gain entry.
32. He and his co-offender stole items from the premises they entered. Mr McMahon smashed a glass viewing panel above the stove in the fourth house he alone entered as a trespasser.
33. When police spoke to Mr McMahon later, he was found to be in possession of property he admitted was stolen. He made full admissions to all the offences.
34. He was charged with four counts of burglary, two offences of theft, two offences of damaging property, and one offence of being in possession of stolen property.
35. Both the offences in 2008 were committed on 1 January 2008 when he and his then partner had an argument. They had been in Civic and Mr McMahon left and went home. When his partner arrived home, she found him asleep, but, when she woke him up, he hit her on the hand. They argued some more and his partner locked herself in the bathroom. Mr McMahon tried to get in and managed to make a hole in the door with a knife. These events constituted the offence of common assault and of damaging property.
36. The bail offence was committed when, on 26 March 1998, Mr McMahon appeared in the Magistrates Court and the matter was adjourned to 10 June 1998. He was granted bail and signed a bail undertaking to appear on that day but did not do so.
37. It appears that, on 24 July, 2014, I said that I convicted Mr McMahon of two offences of common assault and two offences of damaging property, all of which were asserted to have been committed on 1 January 2008. There was, in fact, only one of each offence then committed, as noted above, and he had not been charged with the others. See R v McMahon (2014) at [113], items 29 and 30. It appears that I just repeated, in the order, the two offences in error.
38. It seems to me that a conviction for an offence not charged must be a nullity since the Court would have no jurisdiction to enter the conviction. The court's jurisdiction, is, as noted in R v Scott [1993] FCA 398; (1993) 42 FCR 1 at 3, 6-7, only enlivened, apart from its inherent supervisory power, upon the presenting or filing of an indictment or its equivalent under s 90A(11) of the Magistrates Court Act. Thus, in this case, the Court had no jurisdiction to convict Mr McMahon of offences for which he had not been charged.
39. A conviction which the Court has no jurisdiction to enter is a nullity. See Short v The Queen [2016] VSCA 210 at [37].
40. That a conviction is a nullity does not mean that the court which entered it can necessarily set it aside. Once the conviction is entered into the records of the Court, the Court is functus officio unless there is another power, such as under r 6906 of the Court Procedures Rules 2006 (ACT), to deal with it. It must otherwise be dealt with on appeal.
41. In this case, however, no sealed order encompassing the convictions has been issued by the Court. On the other hand, it was held in Jovanovic v The Queen [1999] FCA 1008; 92 FCR 580 at 592; [59]- [60], that, in criminal matters, the entry of a sentence on the associate's bench sheet is the entry of the sentence into the Court's records for the purpose of the finality of the proceedings. I see no reason why the same should not apply to the record of a conviction.
42. In this case, however, an inspection of the bench sheet shows that the correct record was made - only one conviction for common assault on 1 January 2008 and only one conviction for damaging property on 1 January 2008 were there recorded.
43. This means that the Court has power to recall the decision and appropriately vary it: DJL v The Central Authority [2000] HCA 17; 201 CLR 226 at 244; [34].
44. Accordingly, I will amend the orders appearing in R v McMahon (2014) at [113] by deleting items 29 and 30 and also on the front record of the decision.
45. When this and the problematic bail offences are considered, it appears that what the Victorian Court of Appeal said in Nguyen v The Queen [2012] VSCA 297; 272 FLR 58 at 59; [1], applies, namely:
It is not a rule known to the law, still less to science, but all are aware of its substantial truth. One of the most disconcerting lessons of life, is that if it is possible for something to go weirdly wrong, it probably will. All that is generally needed is time. This case illustrates that point.
46. I have set out in R v McMahon (2014) at [25]-[37] and in R v McMahon (2015) at [8]-[16], the course of the proceedings which have now been on foot since 29 May 1997, with numerous court appearances, attendances at rehabilitation agencies, periods of imprisonment interstate, and simply periods at large. I incorporate what I there said into these reasons.
47. A summary such as this does not do justice to the precise circumstances of Mr McMahon's situation. He is responsible for much of the delay in dealing finally with the offences to which he has pleaded guilty. He has either simply not returned to Court as he should have done or has committed offences interstate which resulted in imprisonment preventing his return to Court. I refer to the detail of these matters in the remarks I made in my earlier decisions.
48. In the meantime, however, Mr McMahon has spent a significant period in custody in this Territory. When I made the Deferred Sentence Order on 21 January 2015, Mr McMahon had been in ACT custody for 514 days. He has now spent 564 days in custody. He has, also, spent time in custody interstate between May 1997 and now, and that is now a matter relevant to totality: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59.
49. It is, however, now time that these matters were resolved finally. The motivation that I thought he had for drug rehabilitation and the encouragement that was provided by the relationship he said he wished to have with his daughter, and the likelihood that he would not have to be returned to custody were he to complete a drug rehabilitation program at Bennelong's Haven have clearly not been sufficient to motivate him to engage in drug rehabilitation, nor to face up to his responsibilities.
50. I have summarised the facts of the offences above (at [31]-[36]) and considered the nature of them in R v McMahon (2014) at [88]-[97]. I incorporate what I there said into these reasons.
51. In brief, the burglaries were the more serious because they were of residential premises. See Simonds v The Queen [2013] ACTCA 13. While there was damage caused in gaining entry to three of the houses, the damage was separately charged in one case and so does not aggravate that offence, though it is relevant to the others. In one burglary, the occupant, a 92 year old lady, was present and Mr McMahon and his co-offender spoke to her before stealing her handbag and some items, a cruel offence. Otherwise, the offences were unremarkable versions of the offence of burglary.
52. The offences of theft were also fairly unremarkable. I was not told the value of the property stolen in one of the offences where the property was a computer and accessories, a camera, binoculars and a wicker basket. The value seems, to me, to likely be about $1000. In the second offence, the value of the property, which included jewellery, likely to have sentimental value, was $7383.94, a considerable amount.
53. The common assault was at the lower end of seriousness, though committed in a domestic context which somewhat increases its culpability.
54. Apart from an estimate of $500 for the damage to the glass panel above the stove, I did not have any information as to the value of the damage caused in any of the damage property offences. They would have involved the replacement of a window in the 1997 cases and, in the 2008 offence, a door.
55. As to the possession of stolen property, it was a single video cassette of no significant value.
56. Again, Mr McMahon's subjective circumstances have been set out in some detail in R v McMahon (2014) at [38]-[87] and R v McMahon (2015) at [7]-[16], [18]-[20], from evidence, including reports I received and noted in those decisions. I incorporate those remarks in my reasons.
57. I have also now received an updated Pre-Sentence Report and a Report of the Court Alcohol and Drug Assessment Service (CADAS) which have allowed me to bring my findings up-to-date. They were helpful reports. I also received letters from Mr McMahon's mother and partner that have also helped me. Mr McMahon wrote me a letter of explanation and commitment to reform.
58. Briefly, Mr McMahon is now 41 years old. He had a troubled childhood, including traumatic experiences, physical violence and cruelty from his step-father. I had some quite graphic details of this. He has struggled to overcome this disadvantage. The High Court has pointed in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 592-3; [37], 594-5; [43]-[44], that such a disadvantage continues to affect the sufferers and while it cannot justify a crime, it certainly explains why it is difficult to overcome the effects of such experiences and to reform. It must be taken into account.
59. He had difficulties at school. His carers, being essentially his father and grandparents, all had serious problems with alcohol. His stepmother rejected him and, while his mother tried to care for him, he did not have ready access to her.
60. He has had some employment in a wide range of trades but has been unemployed for a significant period now. He has taken steps to start education courses while in custody to help him to obtain employment on his release.
61. His associates have tended in the past to be people who engage in criminal activity, but he does not now socialise much outside his family. He maintains contact with his parents and two of his four siblings.
62. He has had a number of relationships. He has a daughter from a previous relationship but has not had much contact with her, although he has expressed a wish to
re-establish a relationship with her. He and his current partner had a daughter together about three years ago, but she has been removed and is in kinship care. He seeks to regain custody of her.
63. His current partner, who describes herself as his fiancée, a description which I have no doubt is accurate, has a disability which has made her vulnerable, especially to predatory men. She has now been in a relationship with Mr McMahon for about five years and he has been very protective of her. I suspect from what I know that this has been to his detriment because he has failed to return to Court because he feels the need to be with her to protect her. This explains but does not justify his failures.
64. She seems also to have had some calming influence on Mr McMahon, also giving him a stability and a welcome and nurture that he did not have as a child.
65. Unfortunately, however, it has not prevented him from re-offending.
66. Mr McMahon has a long history of problematic alcohol use; only abstaining for relatively short periods. He was drinking up to 40 standard drinks a day prior to his arrest in August. He has contracted Hepatitis B. He plans to start treatment for this disease, a treatment which prohibits alcohol consumption. He has also inquired from the Hume Medical Centre about anti-alcohol medication.
67. His drug use commenced when he was 14 or 15, smoking cannabis, but he has now ceased using that drug by moving on to amphetamines. He has also used cocaine but became a heavy user of heroin. He was introduced to heroin at about 14, when his uncle started injecting him with the drug. He last used illicit drugs about five years ago, though he continued abusing benzodiazepines until about six months ago. He commenced on a methadone program when he was 18, but has since then been on and off the program. He is currently stable on a daily dose of 70 milligrams.
68. As I have noted, he has engaged briefly with at least five drug rehabilitation agencies; the longest time being the four months he spent in Bennelong's Haven in about 1999. Clearly it was a good time for him as he now expresses a commitment to return to that agency. He has irregularly attended counselling and sometimes Alcoholics Anonymous. He briefly attended Narcotics Anonymous. He plans to re-enter Bennelong's Haven with his partner, which will be important for them both, when he is able to do so.
69. He has been assessed as suitable to enter the ADAPT Program in the Alexander Maconochie Centre and is presently on the waiting list. That program is a
pre-contemplative program of three sessions aimed at providing education around alcohol and other drug use and strategies to change.
70. He declined to be assessed for the Solaris Therapeutic Community Program, a program that I described in R v JM [2014] ACTSC 380 at [26]. He wanted to await the outcome of the present sentencing proceedings.
71. Mr McMahon has some physical health complaints and he continues to suffer intermittent pain from a head injury he suffered when he was 17. He is currently being treated for anxiety and depression, including being prescribed antidepressant medication. He remains optimistic, however, about his future with his family, including his partner and children.
72. He has a long and disgraceful criminal history and his criminal record shows 114 offences recorded in 55 court appearances, the vast majority of which were dishonesty offences, but, worryingly, there are eight offences of violence on his record. Offences of violence are, of course, often a consequence of alcohol abuse. To these must be added the current offences.
73. He makes promises to the Court and expresses remorse and motivation but he seems to have great problems in delivery. I do not find that he makes the promises deceitfully, but he just cannot stick to them, sometimes through circumstances beyond his direct control.
74. He pleaded guilty to all the offences at a relatively early time and, in 1997, made full confessions to police investigators.
75. Unfortunately, he has committed further offences while at large. In 2015 he committed the New South Wales offence of breaking, entering and stealing and was sentenced to 16 months imprisonment, being released in late 2016. He explained to me that he was depressed at the time and had returned to drinking because his new born child was placed into care, causing him severe depression.
76. In 2016, he then committed further offences in New South Wales, being larceny, attempting to re-enter premises from which he had been excluded, assaulting a police officer in the execution of his duty, and two offences of stalking. I do not have details of the facts of those offences. Again, he was sentenced to terms of imprisonment, being released in 2017.
77. Then in 2017, he committed two offences of shoplifting for which he was sentenced to non-custodial bonds after a period of about a month in custody, likely for breach of parole, although it was difficult to be certain of the course of his custodial periods in New South Wales from the material available to me.
78. It seems that he has, since appearing before me in early 2015, been in prison for about two years, a very relevant factor to take into account to address the issue of totality.
79. That he has continued to offend is of considerable concern but he has been punished for those offences and must not be punished for them again. As the High Court said in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477, the offending does help the Court to assess his criminal tendencies and character.
80. I have regard to the purposes for sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). Given the number and nature of the offences, punishment and general deterrence are significant. Given Mr McMahon's history, specific deterrence is also a significant factor. Recognition of the harm to the victims must play a part and while reform cannot be discounted, Mr McMahon has had many opportunities to engage in meaningful rehabilitation without any significant success.
81. When making the Deferred Sentence Order in R v McMahon (2014) at [113]; item 35, I said:
I indicate that if you do not comply with this order and the bail conditions, I consider that I should sentence you to a term of immediate imprisonment for a period of approximately four years with a non-parole period, but which would take into account the time you have already spent in custody. I indicate that if you comply with this order and the bail conditions I consider that you should be sentenced to imprisonment for a period of approximately three years and six months. The balance, after taking into account the time you have already served, will be either served by way of periodic detention or wholly suspended with a Good Behaviour Order perhaps including community service conditions.
82. In general, I see no reason why I should not adhere to the sentence that I then outlined as appropriate to the circumstances which have now come to pass, namely that he did not comply with the Deferred Sentence Order and bail conditions even when given a further opportunity.
83. While recognising the entrenched nature of drug addiction and the difficulties of coming to manage it, efforts to support such attempts cannot be unrealistically prolonged. I said in Saga v Reid [2010] ACTSC 59 at [89]:
In my view, it can be accepted that drug addiction is such that it can take a number of failed attempts at rehabilitation before it is successful. It is hard work and there is no short cut or quick fix. It can take some time, and some failures, before an offender addict manages to break through the barriers to achieve a more effective rehabilitation. The courts cannot, of course, sit back and allow attempts to be made without end. By the same token, past failures do not automatically deny an offender the opportunity for a further attempt. Ordinarily, there would have to be some rational basis for permitting it.
84. It seems to me that there is no rational basis to support further efforts by Mr McMahon to address his drug addiction pending sentence. It is a pity that he did not take the opportunity for him to participate in the Solaris Therapeutic Community Program in the Alexander Maconochie Centre, but he wishes, not unreasonably, to participate in rehabilitation with his partner in Bennelong's Haven.
85. Conditions of his release must seek to address this issue and, if possible, help him to maintain any abstinence achieved in custody. It would be appropriate, for example, to require him to proceed with his partner to Bennelong's Haven.
86. The major difficulties in this sentencing exercise is the question of delay. The oldest offence was committed over 20 years ago and, indeed, the most recent committed nine years, eight months and seven days ago. These are stale offences.
87. There is no bar to the prosecution of such offences. Indeed, many of the offences for sexual crimes against children are prosecuted many decades after they were or alleged to have been committed and there are good reasons for that: Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice Report (2017) vol 2 at 121-2, 128-9.
88. This case is different, however, from those cases where a complaint is made many years after the events said to have given rise to the offences for Mr McMahon has had a degree of uncertainty about the punishment he would suffer, though that was, of course, clearer once I had given him sentence indication referred to above (at [81]).
89. If there is unfair or irremediable prejudice by the prosecution of stale offences, that can be addressed by a stay of proceedings: Bell v DPP [1985] AC 937, Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 at 70, 78; Aitchison v DPP (ACT) (1996) 135 FLR 217.
90. I have addressed the issue of delay in R v McMahon (2014) at [98]-[106] and I incorporate what I there said in to these reasons.
91. Mr McMahon has largely been responsible himself for the delay. This, of course, reduces the leniency that can be accorded for it. Of the issues referred to in R v Harrison (1990) 48 A Crim R 197 at 198-9, as relevant to mitigation of sentence for delay, the only significant one is the staleness of the offences.
92. His uncertainty as to outcome has been relatively recently resolved with the sentence indication I gave, as required under s 118 of the Crime (Sentencing) Act. He has made no progress towards rehabilitation, other than, and this cannot be ignored, the fact that he has now ceased taking illicit drugs and is taking medication that is likely to prevent his further consumption of alcohol. I take those matters in to account.
93. In my view, apart from the punishment he must receive for the offences against s 49 of the Bail Act, which will effectively address the issue of his absconding, I should deal with him generally as I foreshadowed in 2014.
94. I take into account the seriousness of the offences, as I have described them above, and in the earlier reasons.
95. I take into account the subjective matters which I have also described above and in the earlier reasons. In particular, I take in to account Mr McMahon's childhood disadvantage, the vulnerability of his partner and the likely medication he will continue to be taking. I take into account the matters set out in s 33 of the Crime (Sentencing) Act. So far as I know them, they are set out above and in the earlier reasons. This includes the loss and damage suffered in the offences.
96. I take into account the pleas of guilty made by Mr McMahon and which were entered at an early stage and entitled him to a discount on his sentence. I also accept that this was evidence of remorse which he has additionally expressed to me. I accept that Mr McMahon is remorseful. Indeed, he seems always to accept responsibility for his actions and, so it seems, pleads guilty at an early stage. That insight and remorse however, does not seem to enable him to stop offending.
97. While Mr McMahon appears eligible for a referral to Restorative Justice, I would not do so without more information, given the staleness of the offences. That can be dealt with subsequently, either in custody or when he returns to the community.
98. Having considered all these matters, I consider that no other sentence than a sentence of imprisonment is appropriate and it must be served by immediate custody, backdated to take in to account pre-sentence custody.
99. In coming to that conclusion, I have excluded any feeling of frustration or disappointment at the failure of Mr McMahon to take the opportunities I gave him on two occasions. The sentence I impose will contain no element of malice or spite. See Jeffery L Harrison, "Spite: Legal and Social Implications" (5 September 2017) 55-9 .
100. There are multiple sentences to be imposed which, as I pointed out in R v Forrest (No 3) [2017] ACTSC 168 at [86], must be imposed individually.
101. I have carefully considered the nature of each offence and the length of each sentence for them, to ensure that Mr McMahon is not punished twice for the same culpability.
102. I have considered whether the sentences should be partly or wholly concurrent because, for example, they are not part of the same course of conduct. That is relevant because, ordinarily, the associated offences to the burglary offences, namely damaging property (which is often not separately charged in any event) and theft, would be largely concurrent as I explained in R v McMahon (2014) at [94]. The level of concurrency will depend on the value of the damage of the property stolen. Here, I do not have a value of the damage, other than for one offence, but it does not seem to me to be excessively large. Only for the one offence of theft do I have the value and that is quite significant, justifying some accumulation.
103. I have then reviewed the length of the total term of imprisonment at which I have then arrived to ensure that the principle of totality is respected and that the total sentence is adequate to reflect the criminality of the offences committed, but not more than that, and that the total sentence is not excessive, but will leave open the realistic prospect of reform and hope for Mr McMahon to achieve his goals when he is released in to the community. This requires the sentence to reflect the total criminality but to be proportionate to it. It also requires me to have regard to the likely periods of imprisonment that Mr McMahon has already served since the offences were committed, although for offences that he then subsequently committed.
104. I have also given careful thought to the question of whether I should make a non parole period or release Mr McMahon on a suspended sentence after the relevant period in custody.
105. At the end of the day, it seems to me that the staleness of the offences justifies a certainty of release and an end to the uncertainty of the punishment that has been hanging over Mr McMahon's head. While I would ordinarily have thought that the circumstances warranted a period of parole, I am satisfied that I can make appropriate conditions of a Good Behaviour Order that will justify the option of a suspended sentence having regard to all relevant factors.
106. The period of immediate custody remaining is also somewhat less than I would normally set for a non parole period. In this regard, I have particular consideration for the staleness of the offences, the period of custody that Mr McMahon has already served in various institutions, including the Alexander Maconochie Centre, and his personal circumstances.
1. I amend the reasons in R v McMahon [2014] ACTSC 280 at [113] by omitting items 29 and 30 and also items 13 and 14 in the record of the Decision on the front page.
2. I otherwise confirm the convictions for the offences to which you have pleaded guilty and which I entered on 24 July 2014.
3. For the offence of burglary, committed on 14 May 1997, I sentence you to 18 months imprisonment to commence on the 23 March 2016. Had you not pleaded guilty, I would have sentenced you to 24 months imprisonment.
4. For the offence of theft, committed on 14 May 1997, I sentence you to 12 months imprisonment to commence on the 23 March 2016, that is to be wholly concurrent on the offence of burglary on that day. Had you not pleaded guilty, I would have sentenced you to 15 months imprisonment.
5. For the offence of burglary, committed on 21 May 1997, I sentence you to 18 months imprisonment to commence on 23 September 2016, that is to be cumulative as to the six months on the sentence for burglary on 14 May 1997. Had you not pleaded guilty, I would have sentenced you to 24 months imprisonment.
6. For the offence of damaging property on 21 May 1997, I sentence you to six months imprisonment to commence on 23 November 2017, that is to be cumulative as to two months on the sentence for burglary on that date. Had you not pleaded guilty, I would have sentenced you to eight months imprisonment.
7. For the offence of burglary on 23 May 1997, I sentence you to 18 months imprisonment to commence on 23 March 2017, that is to be cumulative as to four months on the sentence for damaging property on 21 May 1997. Had you not pleaded guilty, I would have sentenced you to 24 months imprisonment.
8. For the offence of damaging property on 23 May 1997, I sentence you to six months imprisonment to commence on 23 May 2018, that is to be cumulative as to two months on the sentence for burglary on that date. Had you not pleaded guilty, I would have sentenced you to eight months imprisonment.
9. For the second offence of burglary on 23 May 1997, I sentence you to 18 months imprisonment to commence on 23 November 2017, that is to be cumulative as to six months on the offence of damaging property on that day. Had you not pleaded guilty, I would have sentenced you to 24 months imprisonment.
10. For the offence of theft on 23 May 1997, I sentence you to 15 months imprisonment to commence on 23 May 2018, that is to be cumulative as to three months on the sentence for the second burglary on that day. Had you not pleaded guilty, I would have sentenced you to 19 months imprisonment.
11. For the offence of possession of stolen property, I sentence you to two months imprisonment to commence on 23 August 2019, that is to be wholly cumulative on the sentence for theft on 27 May 1997. Had you not pleaded guilty, I would have three months imprisonment.
12. For the offence of failing to appear in accordance with your bail undertaking on 10 June 1998, I sentence you to two months imprisonment to commence on 23 October 2019, that is to be wholly cumulative on the sentence for possessing stolen property. Had you not pleaded guilty, I would have sentenced you to three months imprisonment.
13. For the offence of assault on 1 January 2008, I sentence you to three months imprisonment to commence on 23 December 2019, that is to be wholly cumulative on the sentence for failing to appear in accordance with your bail undertaking. Had you not pleaded guilty, I would have sentenced you to three months imprisonment.
14. For the offence of damaging property on 1 January 2008, I sentence you to six months imprisonment to commence on 23 December 2019, that is to be cumulative as to three months on the sentence for assault. Had you not pleaded guilty, I would have sentenced you to eight months imprisonment.
15. That is a total sentence of four years and three months imprisonment.
17. 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 three years from 23 December 2017 with the following conditions:
(a) that you accept supervision of the Director-General or her delegate for a period of three years, or such lesser period as the person supervising you determines to be appropriate;
(b) that you obey all reasonable directions of the person supervising you especially as to compliance with medication prescribed by your medical practitioners; and
(c) that you maintain contact with Bennelong's Haven and enter that program as soon as you are admitted and a place is available to you and that you remain in that program until you have completed it.
108. Mr McMahon, I am disappointed as I said to you the other day. I have given you opportunities and you now have to pay for failing to take them. However, the total of your custodial periods need to be taken into account because the fact is that what we are dealing with are very old offences. Nevertheless, they are offences. They are offences that had you preying on ordinary people in the community, making them feel unsafe in their homes, taking and smashing their property, and misbehaving towards your former partner in a way that is unacceptable in our community.
109. I am not able, at this time, to accept your wish that I give you a further opportunity to reform before I sentence you because you need to serve further time. You expressed the desire to spend this Christmas with your partner and you will be able to do that as her vulnerability is something that I am concerned about.
110. If alcohol is your problem, you now have within your power the ability to resolve that. Your medication will stop you resorting to alcohol, but you have got finally, at 41, to grow up. You have to take control of your life and if you want any chance to repair the relationship with your children and to form a stronger relationship with your partner, then that is in your hands.
111. The courts can give you opportunities, and where they are realistic, they will. I have taken another risk and given you a short further period in custody, but there is a long period of the suspended sentence, so if you fall over, then you are likely to spend much, if not all of that, back in custody, and that will be a major setback for you.
112. I hope that these few months left in custody will give you the opportunity to really think. Perhaps it is prudent to do some courses that might help you with employment because we know that employment is helpful to keeping people out of trouble in the community; and that will ultimately assist you and your partner to have a successful life together. But while it may take a long time to reconnect with your children, this is also vitally important for your rehabilitation and of course for them; they need their father.
113. If you keep committing offences as you have done, then the courts really have no opportunity, and no other alternative, but to lock you up.
I certify that the preceding one hundred and thirteen [113] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Refshauge.
R
McMahon
(1996) 135 FLR 217
(1924) 34 CLR 442
(1989) 168 CLR 23
(1988) 166 CLR 59
(1981) 148 CLR 32
(1993) 42 FCR 1
(1988) 164 CLR 465