Supreme Court of the ACT|2015-09-09|Before: Refshauge J

R v Ogilvie [2015] ACTSC 296 (9 September 2015)

1. Dillon Ogilvie is convicted of aggravated burglary on 18 June 2014.

2. He is sentenced to imprisonment for two years and one month to commence on 2 September 2015.

3. Dillon Ogilvie is convicted of dishonestly driving somebody else's motor vehicle without consent on 18 June 2015.

4. He is sentenced to imprisonment for 10 months, to commence also on 2 September 2015.

5. Dillon Ogilvie is convicted of burglary on 19 June 2014.

6. He is sentenced to 18 months imprisonment to commence on 2 April 2017, to be cumulative as to 12 months on the sentence for aggravated burglary.

7. Dillon Ogilvie is convicted of dishonestly taking someone else's motor vehicle without consent.

8. He is sentenced to imprisonment for 10 months to commence on 2 February 2018, to be cumulative as to two months on the sentence for burglary.

9. Dillon Ogilvie is convicted of theft on 19 June 2014.

10. He is sentenced to imprisonment for 10 months to commence on 2 April 2018, to be cumulative as to two months on the sentence for dishonestly taking somebody else's motor vehicle without consent.

11. The sentence is suspended today, 9 September 2015, for three years.

12. Dillon Ogilvie is required to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) to be of good behaviour for three years with the following conditions:

1. That he pay the sum of $200 to the Registrar of the Supreme Court within two months for payment out to the Botha Family Trust, 68 Botany Street, Phillip, ACT;

2. A probation condition that he accept supervision of the Director-General or her delegate for a period of two years or such lesser period as the person supervising him considers appropriate, and that he obey all reasonable directions of the person, including as to counselling for anger management;

3. A community service work condition that he perform 150 hours of community service work within two years of today, 9 September 2015.

13. Dillon Ogilvie is convicted of being a first offender driving on 18 June 2014 while your licence was suspended by law.

14. Dillon Ogilvie is required to sign an undertaking to comply with the offender's good behaviour obligation under the Crimes (Sentence Administration) Act (2005) (ACT) to be of good behaviour for 12 months.

15. Dillon Ogilvie is convicted of being a first offender of driving on 19 June 2014 while your licence was suspended by law.

16. Dillon Ogilvie is required to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT).

17. It is noted that, under s 32(6)(a) of the Road Transport (Driver Licensing) Act an automatic disqualification from holding or obtaining a driver licence applies for a period of 1 month from today, 9 September 2015.

18. The periods of disqualification are directed to run concurrently.

19. Dillon Ogilvie is directed to attend ACT Corrective Services at Eclipse House, London Circuit, Canberra City by 4:00pm today, 9 September 2015.

CRIMINAL LAW - Jurisdiction, practice and procedure - judgment and punishment - sentencing - aggravated burglary - burglary - theft - dishonestly driving someone else's a motor vehicle without consent - dishonestly taking someone else's a motor vehicle without consent - driving whilst licence is suspended by law - rehabilitation - reformation - cumulation and concurrency of sentence

Aldridge v The Queen [2014] ACTCA 34

Ashdown v The Queen (2011) 219 A Crim R 454

Auld v The Queen [2013] ACTCA 21

Balthazar v The Queen [2012] ACTCA 26

Dibb v the Queen [2003] NSWCCA 117

EG v The Queen [2012] ACTCA 17

Heard v The Queen [2015] ACTCA 6

Hunter v The Queen [2011] NSWCCA 141

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

R v DF (No 2) (2012) 257 FCR 31

R v Hutchinson [2014] ACTCA 29

R v Mills [1998] 4 VR 235

R v White [2014] ACTSC 158

Simonds v the Queen [2013] ACTCA 13

Tate v The Queen [2012] ACTCA 50

The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383

Legal Aid ACT (Defendant)

1. There is no doubt that burglary is a serious crime. The entry into the premises of other people with the intent to steal is a concerning attack on the security of a peaceful society.

2. Now appearing for sentence is Dillon Ogilvie, who has pleaded guilty to offences of aggravated burglary, burglary, theft, dishonestly without consent driving a motor vehicle belonging to someone else, and dishonestly without consent taking a motor vehicle belonging to someone else. He has also pleaded guilty to two offences of driving whilst his licence was suspended.

3. Aggravated burglary is an offence against s 312 of the Criminal Code 2002 (ACT) and attracts a maximum penalty of 2000 penalty units (that is, a fine of $300,000) and imprisonment for 20 years. Burglary is an offence contrary to s 311 of the Criminal Code for which the maximum penalty is 1400 penalty units (that is, a fine of $210,000) and imprisonment for 14 years. Theft is an offence prohibited by s 308 of the Criminal Code which provides for a maximum penalty of 1000 penalty units (that is, a fine of $150,000) and imprisonment for 10 years.

4. Dishonestly taking someone else's motor vehicle without consent is made an offence by s 318(1) of the Criminal Code and is punishable by a maximum penalty of 500 penalty units (that is, a fine of $75,000) and imprisonment for five years. Dishonestly driving someone else's motor vehicle without consent is an offence against s 318(2) of the Criminal Code for which the maximum penalty is also 500 penalty units (that is, a fine of $75,000) and imprisonment for five years. Driving a motor vehicle whilst suspended from holding or obtaining a driver licence is contrary to s 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) and is punishable by a maximum penalty of 50 penalty units (that is, a fine of $7,500) and imprisonment for six months. It also involves an automatic suspension or disqualification from holding or obtaining a driver licence under s 32(6)(a) of the Road Transport (Driver Licensing) Act for one month or a longer period if so ordered by the court.

5. These maximum penalties are the yardsticks by which courts are to assess the seriousness of the offence and the court must have regard to them. See Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at 137; [31]. By these penalties, the aggravated burglary and burglary offences, therefore, are very serious offences for which an offender can expect severe punishment.

6. On 17 June 2014, Mr Ogilvie drove, with his co-accused, Wesley Robinson, in a Ford Econovan, to the carpark of the Kaleen Club. The van was not owned by Mr Ogilvie or Mr Robinson and had been stolen from the owner's residence in Torrens. When they arrived at the Kaleen Club, they reversed the van into a fenced-off area of the club used as an outdoor smoking area. The van broke one side of the fencing completely and Mr Ogilvie drove it up to the glass door to the club. He and Mr Robinson got out and Mr Robinson used a small mallet to smash the glass door which was the only legal entry from inside the club to the smoking area.

7. Mr Robinson made two holes in the glass door, but they were not large enough for the two of them to get inside. Mr Ogilvie then kicked the bottom of the glass door, tried to open the door handle and tried to break more of the glass to the door, but it would not break. As a result, they got into the van and drove away, leaving it on the side of the road in Mawson. The van, when found by police, had damage to the rear and all the door locks and ignition barrel were damaged also. I also had photographs of the quite significant damage to the Kaleen Club.

8. Two days later, Mr Ogilvie went to the premises of a retail tyre company in Phillip and smashed a glass door, entering the foyer. He had earlier been employed by the business. He removed a cash register and went to the workshop where he drove a black utility out through the workshop door and drove home. He hid the cash register in the roof cavity of his house. He later drove the utility truck to Woden and hid the keys.

9. On Friday, 20 June 2014, Mr Ogilvie went to Tuggeranong police station with his then partner and another friend. He was arrested because of outstanding warrants. His partner advised the police of Mr Ogilvie's involvement in the two incidents at the Kaleen Club and at Phillip, but Mr Ogilvie denied involvement, saying that he was home in bed on both nights.

10. Eight days later, however, he admitted his involvement in one of the two incidents and he assisted police to recover the utility truck and its keys. Mr Robinson has not been located by police. Mr Ogilvie's former partner has not, so far as I am aware, been charged with any offence. She had taken all the money, probably to feed her drug habit, which was entrenched and longstanding.

11. At the time of these offences, Mr Ogilvie's licence had been suspended for non-payment of a traffic infringement notice.

12. Mr Ogilvie was arrested on 20 June 2015 and bail was refused. He appeared in court the next day and bail was refused again. On 27 June 2014, however, he was granted bail and has been on bail since then. On 11 June 2014, Mr Ogilvie entered a plea of not guilty to the charges he was then facing. After a number of further adjournments he was, on 13 November 2014, committed to this Court for trial on charges of attempted aggravated burglary, aggravated burglary, burglary and two counts of dishonestly driving a motor vehicle without consent.

13. At the same time, the two charges of driving whilst he was suspended from holding or obtaining a licence were transferred to this Court as related charges under s 90B of the Magistrates Court Act 1930 (ACT), to be dealt with under Pt 8 of the Supreme Court Act 1933 (ACT). An indictment for the charges on which he was committed, except for the count of attempted aggravated burglary and one of the counts of dishonestly driving a motor vehicle without consent, was filed. In addition, three further counts were preferred ex officio, namely, two counts of damaging property, being property of the Kaleen Club and the Phillip premises, and a count of dishonestly taking a motor vehicle without consent.

14. On 25 May 2015, the proceedings were listed for trial to commence on 7 September 2015 and an application to sever the indictment was listed for hearing on 30 July 2015. No such application, however, was ever made. On 2 September 2015, five days before the trial, Mr Ogilvie pleaded guilty to the charges for which he now stands to be sentenced. The pleas were accepted in full satisfaction of the indictment. I expect the Crown will file a notice declining to proceed in respect of the counts not proceeding; see R v DF (No 2) (2012) 257 FCR 31 at 38; [45].

15. I had a Court Duty Report and a Forensic Mental Health Report. Together with counsel's submissions, I am able to make the following findings.

16. Mr Ogilvie was born 20 years ago but his parents separated when he was about five years of age. His parents fought a lot and his father was very violent to him. He has no current contact with his father. His mother re-partnered and he has a number of half-siblings. He has a supportive relationship with his mother. He currently resides with his grandmother, with whom he has a positive and supportive relationship.

17. Mr Ogilvie was a lonely child. He was overweight, which appears to have led to him being bullied and ridiculed at school, so he rarely attended, refusing to go and staying home alone watching television. As a result, his literacy and numeracy is quite limited. He became close to his grandfather who is a tradesman and mechanic, and he enjoyed spending time with his grandfather in his workshop. Mr Ogilvie says he was the victim of some violence at school but denied being an aggressor and said he did not have any disciplinary problems while at school.

18. After school, he worked for about three years and was enrolled in an apprenticeship. Unfortunately, this ended when his tools of trade, for which he had saved for a long time, were stolen. He confronted the person he thought was the perpetrator, but who denied it, and who then started calling him names reminiscent of the bullying he had received at school. He "lost it" and punched the man in the face and was fired as a result. As a result of losing his apprenticeship, he started using methamphetamines in about December 2013.

19. It seems he connected through Facebook, with a woman his former partner, and she was a regular drug user. He says that he stopped using methamphetamine after being arrested. He has not had any formal drug rehabilitation. He has not used any other illicit drugs. Mr Ogilvie has no physical health problems and, until arrested and remanded in custody, had had no involvement with mental health services. When granted bail, however, his general practitioner referred him to a counsellor whom he saw on four or five occasions.

20. He was referred by the Magistrates Court for a mental health assessment, though that appeared to be in relation to an offence or offences other than those for which I am sentencing him. Dr Bree Wyeth, consultant psychiatrist, could find no evidence of a major psychiatric illness, though considered that he had:

Some psychological injuries from his early developmental setbacks, described above, that appear to be a trigger for explosive anger.

21. She considered that he did not fit the criteria for childhood or adolescent conduct disorder or an adult antisocial personality disorder. She did, however, recommend some psychotherapeutic social inclusion intervention.

22. Mr Ogilvie has a criminal history. His first conviction was for an offence in January 2014. He was convicted of dishonestly obtaining property by deception and fined $1000 with an order to pay compensation of $90. Since then, he has been convicted in the Magistrates Court of three offences; destroying property, having an offensive weapon, namely a spanner, on him intending to use it violently, and using a motor vehicle as an offensive weapon likely to endanger life. He was sentenced to three concurrent Good Behaviour Orders for 18 months.

23. I also had two character references. One, from a friend of three years, noted that Mr Ogilvie had been "hanging around with the wrong crowd" which got him into trouble. I was told that his former partner was a drug addict of some severity. The referee, however, said that, in the last 12 months, he had made "huge changes" including his attitude towards his family and his ability to hold jobs. She assessed these as genuine.

24. The other was from his uncle, who had some experience in corrections and so was aware of the risks Mr Ogilvie faced, but was also aware of how these risks could be averted and managed. He said that the behaviour of Mr Ogilvie was totally out of character. He had discussed the incidents with him and was satisfied that he was remorseful and was very aware of the seriousness of the offending. He expressed the opinion that he was turning his life around and is "focused on doing the right thing".

25. The Court Duty Report stated that Mr Ogilvie expressed remorse and acknowledged that his choices were poor. He was assessed as at a low risk of re-offending.

26. Aggravated burglary and burglary are serious offences. Not only is this clear from the maximum penalties, as I have mentioned above (at [3]), but they involve an intrusion into the premises usually, as in this case, by means of damaging the property, and with an intention to commit an offence, usually of theft.

27. The damage to the property, not insubstantial in both cases, is a circumstance of aggravation. Although it was charged on the indictment as a separate offence, and therefore arguably not to be punishable as part of these offences under the principles enunciated in The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383, it has been held in the R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327 at 337; [48] that it should be so considered; see R v White [2014] ACTSC 158 at [33].

28. That the burglaries were of commercial premises is, it was pointed out in Simonds v the Queen [2013] ACTCA 13 at [54], frequently treated as not being as serious as if the premises were residential premises, a conclusion confirmed and applied in Heard v The Queen [2015] ACTCA 6 at [33]; see also Aldridge v The Queen [2014] ACTCA 34 at [10].

29. The circumstances of aggravation in this case was that Mr Ogilvie was in company. In the context of a residential burglary, that can be quite a significant matter, since, for an occupant, being faced with two or more intruders would be significantly frightening, perhaps not much less than if the intruder had a weapon. While still a matter of aggravation and of some significance, this issue is not usually present in the case of commercial premises.

30. Ordinarily, an aggravating feature is that the premises where Mr Ogilvie committed the second burglary where the premises of his former employer. Mr R Davies, who appeared for Mr Ogilvie, submitted that he had not used any knowledge gained through his employment in committing the burglary, but he did conceal his identity because of the CCTV and he knew where to get the keys for the car, both matters that presumably he had learned in his employment. I do not consider that these amount to matters of serious aggravation, especially as he could well assess that every such premises are monitored these days by CCTV. Nevertheless, it marks it as somewhat more serious than an unremarkable version of the offence.

31. There was some premeditation in relation to the offences, particularly the burglary where Mr Ogilvie specifically covered his face with a cut sleeve to conceal himself from the CCTV.

32. In the case of the theft, the cash register was recovered but the cash in it was not. I was told that it was taken by Mr Ogilvie's former partner. As to the vehicles, the van was damaged, which, for reasons mentioned above, is relevant, and the utility was recovered undamaged. I had no victim impact statement and no claim for a reparation order was made.

33. At the time of the offences, Mr Ogilvie was on conditional liberty, being on bail for the Magistrates Court offences which is, of course, an aggravating feature; see Auld v The Queen [2013] ACTCA 21 at [9].

34. I have regard to the purposes of punishment set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). In this case, general deterrence must play a significant part in the sentence, though given Mr Ogilvie's short criminal history, specific deterrence while important, is less significant. It is important to emphasise that he must take steps to bring his criminal conduct to an end, or the consequences will be serious. Thus, rehabilitation is important, for the reasons set out below.

35. I note that Mr Ogilvie pleaded guilty, but it was a late plea. It came as the result of plea negotiations, but this does not necessarily convert it into an early plea, especially as the negotiations did not involve the laying of different offences; see Dibb v the Queen [2003] NSWCCA 117 at [5] and R v SY [2003] NSWCCA 291 at [85]- [86]. Nevertheless, it followed admissions to one of the incidents, and those admissions were made at an early stage. He is entitled to a discount on the sentence that is imposed for the plea.

36. I take into account the matters to which I am required under s 33 of the Crimes (Sentencing) Act to have regard. They are, so far as I know them, for the most part set out above.

37. I am required also under s 33(1)(za) of the Crimes (Sentencing) Act to have regard to sentencing practice. This is a statutory factor not present in the New South Wales sentencing legislation and which may require some care to be taken with the sentencing approach to comparable cases from that jurisdiction. It is a statutory factor in Victoria (see s 5(2)(b) of the Sentencing Act 1991 (Vic)). The approach was discussed in Ashdown v The Queen (2011) 219 A Crim R 454 at 460; [5], where Maxwell P said:

The applicable sentencing range for an offender who pleads guilty will to a substantial degree be determined by current sentencing practices. This is so for three reasons. First, the sentencing judge is required by statute to have regard to current sentencing practices. Secondly, the offender's plea of guilty will have been entered on the reasonable assumption that his or her sentencing will be in line with current practice. Thirdly, as this court has repeatedly emphasised, consistency of sentencing is a fundamental objective of the criminal law. The rule of law requires that like cases be treated alike.

(footnotes omitted)

38. As Ashley JA said at 510; [151] (31) in the same case:

[t]he term draws attention to the approach currently adopted by judges sentencing persons for the offence for which the present offender is charged.

39. Though with some proper caution, his Honour referred at 511; [151] (31) to statistics which "throw some light on sentencing patterns for a particular offence, and this provides some window on the accumulated experience of sentencing judges" though his Honour added that "the assistance of such experience is limited, and too much emphasis upon statistics by sentencing judges may well lead to error".

40. In considering this issue, I have had regard to what the Court of Appeal has said in a number of cases involving sentences for aggravated burglary and burglary; see, for instance, Balthazar v The Queen [2012] ACTCA 26 at [66]- [69]; Tate v The Queen [2012] ACTCA 50 at [71]- [77]; Aldridge v The Queen at [10]-[12]; EG v The Queen [2012] ACTCA 17 at [5]; Simonds v The Queen at [19]-[30]; R v Hutchinson [2014] ACTCA 29 at [35]- [42] and Heard v The Queen at [32]-[35].

41. I note that Mr Ogilvie is still a young man. The offences were committed when he was 19 years old. While he is not to be sentenced under the special regime for offenders under the age of 18 years, he is still to be treated as youthful and yet to have fully matured; see Gordon (1994) 71 A Crim R 459 at 469. His criminal record is not a long one. While it includes some of the more serious offences, it is not in aggregate one that deprives him of any leniency; see Hunter v The Queen [2011] NSWCCA 141 at [17].

42. The burglary offences are serious, especially the offence of aggravated burglary which resulted in considerable damage to the premises and the van. I have described the seriousness of the offences above (at [26]-[33]).

43. I accept that Mr Ogilvie is remorseful. While the plea was a late one, despite the earlier admissions he had made, it is some confirmation of the remorse he has very effectively shown by the way he has progressed his reformation, giving up drugs and getting a job. He also assisted the police in recovering the utility and, I assume, the cash register.

44. Mr Ogilvie is still a young man. He was 19 at the time of the offences. As Batt J explained in R v Mills [1998] 4 VR 235 at 241, in the case of the youthful offender, rehabilitation is usually far more important than general deterrence.

45. I note, however, the courts are rightly sceptical of claims that an offender has "turned the corner", reached "a crossroads" or the like. As noted by Dunford J, with whom Greg James J and Smart AJ agreed, in Govinden [1999] NSWCCA 118; (1999) 106 A Crim R 314 at 319; [35], courts must be careful not to "accept uncritically at face value" such submissions. In this case, the claim has been confirmed by action, although it is still early days for it to be clear that rehabilitation has been achieved. He may still need counselling and support to meet the challenges that his earlier life disadvantage gave him and to control his anger.

46. There are, however, relevant matters to support a finding that he has indeed taken steps to reform. His employment is an important matter, and he has two jobs, though there was a doubt about whether he will keep the full-time one because of this offending. He has stopped using drugs, and his referees attest to his commitment to his rehabilitation. I note, too, that for nearly 18 months he has been on restrictive bail conditions. It is open for me to take that into account; see R v Webb [2004] NSWCCA 330; (2004) 149 A Crim R 167 at 170; [18]. I propose to do so, but to a limited extent.

47. I note that Mr Ogilvie has limited funds and the author of the Court Duty Report says that he would have difficulty in paying a fine. I note, too, that he has been assessed as suitable for a community service work condition to a Good Behaviour Order and to serve a term of imprisonment by periodic detention. Having considered the matter very carefully, I consider that no other sentence than a sentence of imprisonment must be imposed, but it need not be served in full-time custody.

48. I note too that there are multiple offences, which raise the question of cumulation and concurrence and totality. Accordingly, I have carefully considered the length of the sentences to ensure that, when there are overlapping common elements between any of the offences, Mr Ogilvie is not punished twice. This is particularly relevant with regard to the burglary and associated theft and taking motor vehicle offences. I have also considered whether the sentences should be partly or wholly concurrent because, for example, they are part of the same enterprise, or otherwise. While the two incidents are not part of the one enterprise, they were clearly associated in time.

49. I have then reviewed the length of the term of imprisonment arrived at and ensured 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, that the total sentence leaves open the realistic prospect of reform and hope for the achievement of Mr Ogilvie's goals in the community. Where necessary to achieve this, I have adjusted the cumulation or concurrency of the individual sentences.

50. Given the seriousness of the aggravated burglary, I carefully considered as to whether the term of imprisonment should be served by a period of periodic detention. In all the circumstances, particularly given the relatively short period of the criminality that Mr Ogilvie has committed, it seems to me that a sentence of periodic detention will return him to associations with persons from whom his pro-social direction is likely to require him to avoid.

1. I convict you of aggravated burglary on 18 June 2014.

2. I sentence you to imprisonment for two years and one month to commence on 2 September 2015 to take into account your pre-sentence custody. Had you not pleaded guilty, I would have sentenced you to two years and six months imprisonment.

3. I convict you of dishonestly driving somebody else's motor vehicle without consent on 18 June 2015.

4. I sentence you to imprisonment for 10 months, to commence also on 2 September 2015. That is to be wholly concurrent on the sentence for aggravated robbery. Had you not pleaded guilty, I would have sentenced you to 15 months imprisonment.

6. I sentence you to 18 months imprisonment to commence on 2 April 2017. That is to be cumulative as to 12 months on the sentence for aggravated burglary. Had you not pleaded guilty, I would have sentenced you to one year and nine months imprisonment.

7. I convict you of dishonestly taking someone else's motor vehicle without consent.

8. I sentence you to imprisonment for 10 months to commence on 2 February 2018. That is to be cumulative as to two months on the sentence for burglary. Had you not pleaded guilty, I would have sentenced you to 12 months imprisonment.

10. I sentence you to imprisonment for 10 months to commence on 2 April 2018. That is to be cumulative as to two months on the sentence for dishonestly taking somebody else's motor vehicle without consent. Had you not pleaded guilty, I would have sentenced you to 12 months imprisonment.

11. That is a total imprisonment for three years and five months.

12. I suspend that sentence today, 9 September 2015, for three years.

13. I require you to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) to be of good behaviour for three years with the following conditions:

1. That you pay the sum of $200 to the Registrar of the Supreme Court within two months for payment out to the Botha Family Trust, 68 Botany Street, Phillip, ACT;

2. A probation condition that you accept supervision of the Director-General or her delegate for a period of two years or such lesser period as the person supervising you considers appropriate, and that you obey all reasonable directions of the person, including as to counselling for anger management;

3. A community service work condition that you perform 150 hours of community service work within two years of today.

14. I convict you of being a first offender driving on 18 June 2014 while your licence was suspended by law.

15. I convict you also of being a first offender of driving on 19 June 2014 while your licence was suspended by law.

16. I make an order that you sign an undertaking to comply with the offender's good behaviour obligation under the Crimes (Sentence Administration) Act to be of good behaviour for 12 months, and I make that order in respect of each of the drive while suspended offences from today, 9 September 2015.

17. I note that, under s 32(6)(a) of the Road Transport (Driver Licensing) Act an automatic disqualification from holding or obtaining a driver licence applies for a period of 1 month from today, 9 September 2015. I do not extend that period of disqualification;

18. I direct that the periods of disqualification are to run concurrently;

19. I direct that you attend ACT Corrective Services at Eclipse House, London Circuit, Canberra City by 4:00pm today, 9 September 2015

52. Mr Ogilvie, that is the formal order that I have made. It is important that I now explain the effect of that to you. These were very serious offences. You were completely out of control and, in a period of about seven months, you have accumulated a very serious criminal record. I accept, however, that you have seen that you do not want to go that way and that the period of actual imprisonment was deterrent and has made you, I hope, now realise that that is not the direction you want to take with the rest of your life. The referees attest to that, and the effort that you have made in getting a job and getting off the drugs, is testament to that, and I am prepared to accept that.

53. However, you are going to be on conditional liberty. You are at risk for a considerable period of time. I have estimated that the criminality of these proceedings was worth three years in gaol, however, I do not require you to spend any more time than the seven days you have already spent in full-time custody unless you breach the Good Behaviour Order I have made. That Good Behaviour Order requires you not to commit any further offences that are punishable by imprisonment. If you do commit such offences, you can be brought back before the Court and you can be resentenced, and that includes a sentence to gaol, so it is important that you stay out of trouble for that period of time.

54. There are other conditions. The first is that you pay $200. That is what you pinched out of the cash register. I appreciate that your partner got that and probably put it towards drugs, but the fact is that you took that money and you should pay it back, and you should do that within 14 days through a cheque or cash to the Register of the Supreme Court and that will be paid then to your former employers.

55. The second condition is that you are under supervision, that is by a parole officer who will talk to you possibly weekly, fortnightly, then monthly for a period of time. Parole officers are important for two reasons. One is control. It is a method of trying to ensure, on behalf of the community, that you do not commit any further offences, but they are also there to assist you. Things go wrong in life. Life is never perfect, although hopefully you have put the drug use behind you. Having used drugs, there is always a risk. If things go wrong, if you see that you are at risk, then a parole officer is someone who can talk to you and offer suggestions about people who might be able to assist you to avoid going back into criminal activity, and they will have resources that can assist you in that way.

56. I have asked them particularly to think about anger management, given your history that is a trigger for you to conduct yourself in a way that leads you to being at risk, so you can talk to your parole officer and there may be a course or some treatment or some counselling that might be appropriate to that. I have not limited the treatment to that issue, but that is the one that I think, based on the information that is before me, needs to be addressed. There are other issues. You may still have some problems from the pretty unsatisfactory early life that you had that you need to address and to get help with, and your parole officer will be able to point you in the right direction.

57. The third condition is that you really do need to repay the community for these serious attacks on our community. As I indicated, I thought about periodic detention; deprivation of liberty is the usual response to a very serious offence such as this. In the circumstances, as I have indicated, I think that the community is better served by not putting you into contact with people who will teach you bad things and who you may associate with during periodic detention; however, I have required you to repay the community by performing 150 hours of free work for the community.

58. There is a risk that that could be on a work gang which will lead you into contact with some people who are also people who have committed serious crimes. Hopefully that will not be so, but that is a matter that you can discuss with Corrective Services and work that out with them.

59. In relation to the drive while suspended, I have made a Good Behaviour Order, which means that I require you to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act to be of good behaviour for 12 months. That is in relation to the driving while suspended on the 18th and on the 19th of June 2014.

60. Under the Road Transport Driver Licensing Act, the driving while suspended attracts an automatic suspension of your licence for one month, so from today you cannot drive for one month. I can increase that, and I considered increasing that, but given that you are a mechanic and that is important for your licence, I think that suspension is sufficient in all the circumstances, but for the next 12 months, I can revisit that and I can increase your suspension, so be careful about what you do in the next 12 months. After that, the only Good Behaviour Order is on the burglaries. The risk there is more serious, because there is the risk of re-sentencing to gaol.

61. I am hopeful, and with the support that you have got from your family and from your referees, I repeat that I am confident that you will be able to avoid any criminal offences in the future. I am sometimes wrong. I hope in this case I am not.

62. I hope that this is now a very sad, a very bad, part of your life that is well behind you and that you will be able to live a useful and happy life in our community without committing further offences. I am cautiously optimistic that that is so. You have certainly showed in the last few months that you can do that, and I hope that that will continue and that with the encouragement that this sentence, I hope, will give you, that the criminal courts will not see you any further.

I certify that the preceding sixty-two [62] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.

(Sentence Administration) Act 2005

(Sentencing) Act 2005

Transport (Driver Licensing) Act 1999

(Sentence Administration) Act 2005

(Sentencing) Act 2005

R v Ogilvie [2015] ACTSC 296

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (139 paragraphs)

R v Ogilvie [2015] ACTSC 296 (9 September 2015)

Parties

Legislation Cited (10)

Cases Cited (4)