R v Ogilvie [2016] ACTSC 265

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Sentencing - breach of Good Behaviour Order - consideration of breach - cancellation of Good Behaviour Order - suspended sentence - community service work direction

Crimes (Sentence Administration) Act 2005 (ACT), ss 84, 85, 86, 102, 110

Crimes (Sentencing) Act 2005 (ACT), ss 7, 33

Guy v Anderson [2013] ACTSC 5

R v Brown [1985] EWCA Crim 3; [1985] Crim LR 212

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

R v Kekalainen (No 2) [2015] ACTSC 369

R v Ogilvie [2015] ACTSC 296

Saga v Reid [2010] ACTSC 59

1. On 18 June 2014, the offender, Dillon Ogilvie, trespassed in a sports club, and then, on 19 June 2014, trespassed in a retail tyre company business, in each case with intent to steal property from the respective premises.

2. To commit the first offence, he and his co-accused drove to the club in a stolen vehicle and then used it to smash windows and glass doors when entering the club.

3. During the second offence, Mr Ogilvie also smashed a glass door and entered the premises, removing a cash register, and dishonestly driving someone else's motor vehicle out of the workshop without the owner's consent.

4. As a result, Mr Ogilvie was charged with various offences and, on 13 November 2014, was committed to this Court for trial on the offences on which he had been charged.

5. On 2 September 2015, five days before the trial, Mr Ogilvie pleaded guilty to some of the counts on the indictment that had been filed, and Notices Declining to Proceed were filed in respect of the other counts, as required in R v DF (No 2) (2012) 257 FLR 31 at 38 [45].

6. Accordingly, on 9 September 2015, I convicted Mr Ogilvie of aggravated burglary, burglary, theft and two offences of dishonestly taking someone else's motor vehicle without consent. I imposed a sentence of imprisonment for three years and five months, backdated by five days to take account of pre-sentence custody, and then suspended the balance on that day, with a Good Behaviour Order for three years, including a probation condition, a condition that he pay $200 reparation, and a community service work condition that he perform 150 hours of community service work within two years.

7. On 9 May 2016, a Community Corrections Officer reported to me, under s 102 of the Crimes (Sentence Administration) Act 2005 (ACT), that Mr Ogilvie, he believed on reasonable grounds, was in breach of his good behaviour obligations. Curiously, but not invalidly, the Community Corrections Officer described them as "suspended sentence order obligations." There are, in fact, no such obligations. The obligations binding on a criminal offender, when a sentence of imprisonment is suspended and a Good Behaviour Order is made, are those set out in s 85 of the Crimes (Sentence Administration) Act, including core conditions set out in s 86 of that Act, and are defined in s 84 of that Act as "good behaviour obligations."

8. Mr Ogilvie was summonsed to appear before me and, after an adjournment to explore the circumstances of the breaches, he appeared before me on 13 July 2016 and admitted the breaches.

9. Since the breaches were made when a sentence of imprisonment was suspended, s 110 of the Crimes (Sentence Administration) Act requires me to cancel the Good Behaviour Order. I shall do so.

10. I must then either impose the suspended sentence for the offence or resentence the offender for the offence.

11. I read the affidavit of the Community Corrections Officer in support of the report of Mr Ogilvie's breach of the Good Behaviour Order. I also heard oral testimony from the Community Corrections Officer and from Mr Ogilvie. On the basis of this evidence I make the following findings.

12. When Mr Ogilvie attended for induction for undertaking community service work, he found one of the other offenders also required to undertake community service work was a person against whom he had given evidence in criminal proceedings and who had, subsequently, threatened to kill him. He was very concerned about this and felt scared that he may be injured. He also noted that the person seemed to know all the other offenders there and be on good terms with them. He told the Officer-in-Charge of community service work the next day that he would not be able to undertake the community service work because of this.

13. Nevertheless, at the group induction, for which he was credited with two hours towards his community service work obligations, a work instruction was negotiated which Mr Ogilvie signed. The instruction required him to report for work on 30 September 2015 and to work each subsequent Wednesday until completion of the Order.

14. On 29 September 2015, Mr Ogilvie telephoned the Community Service Work Officer to advise that he would not be able to attend as he had sustained an injury to his anterior cruciate ligament. While this can be of varying severity, it can make the knee unstable and "give out" with physical activity, and unrepaired injuries can lead to further knee damage. It can be painful and limit physical activity.

15. In this case, I had a brief report from Mr Ogilvie's orthopaedic surgeon, which indicated that he was contemplating surgery for the injury and, by inference, that he should not exercise the knee vigorously, which may well include undertaking labouring type community service work.

16. Mr Ogilvie provided a medical certificate dated 6 October 2015, which certified him to be unfit for work or community service work from that date to 26 November 2015. The cause of the unfitness was, as usually is the case with medical certificates, not stated, but I was told it was for the knee injury.

17. I am prepared to find that his injury predated that date, but accept that the medical practitioner would be only prepared to certify him for unfit from the day on which he saw Mr Ogilvie.

18. In those circumstances, it does not seem to me that his failure to attend on 30 September 2015, or until 26 November 2015, was a breach of the community service order.

19. The evidence was not entirely clear, but it appears that Mr Ogilvie did attend for supervision at various times thereafter. There were, however, four occasions on which he failed to attend, namely 19 November and 15 December 2015 and 21 January and 11 February 2016. These non-attendances are not the subject of any breach action, but non-attendance after 12 April 2016 is, and I deal with that below.

20. No directions appear to have been given to Mr Ogilvie about this until 15 March 2016, when he was directed to attend on 21 March 2016 to discuss his community service work. He did then attend.

21. I had a copy of the diary note then made by the Community Service Work Officer, as follows:

Dillan [sic] attended as directed.

CSO advised Dillan [sic] that he has not been attending CSW. Dillan [sic] stated he still has an injured knee and is awaiting surgery on it. CSO stated there was no valid medical certificate. He stated he would obtain one from his GP.

CSO advised Dillan [sic] that if he was not able to perform labourous jobs he could provide a medical certificate and could perfrom [sic] his hours constructing myna bird cages here at Eclipse House.

Dillan [sic] stated he did not want to associate with criminals and stated he would not do any CSW. CSO advised him that he is obligated to perform the hours and if not, the matter will be returned to the Court as a breach.

Dillan [sic] asked CSO if this would be returned back to SC which was confirmed. Dillan [sic] stated he would prefer to pay a fine than to be with all the other offenders on CS. CSO advised if he is refusing to attend CSW, this matter will have to [sic] sent back to the Court to which Dillan [sic] stated he was satisfied with.

CSO to initiate breach action. CSO advised of this outcome.

22. This forms the basis of the alleged breach in relation to the community service work condition of his Good Behaviour Order.

23. In evidence before me, the Community Corrections Officer acknowledged that there can be difficulties when there are adverse interactions between offenders and this has to be managed. He stated that ACT Corrective Services would take reasonable steps to avoid putting an offender subject to a community based order in a situation where there was a risk of injury either medically (relating to Mr Ogilvie's knee) or from violence (related to the threat that had been made by another offender).

24. In particular, he advised that ACT Corrective Services were now able to provide alternative community service work, being the construction of cages for the capture of Myna birds, which were, it appears, transferred to Eclipse House, which is the headquarters of ACT Corrective Services, from the Alexander Maconochie Centre.

25. There are few offenders who take up this option, which would reduce any risk to Mr Ogilvie, and it is available to him.

26. Mr Ogilvie was not enthusiastic about that option, feeling that it would be rather boring. Quite frankly, that is an irrelevant consideration.

27. Mr Ogilvie indicated that he would prefer to pay a fine than complete his community service work, though he currently is not employed and the possibility of paying a substantial fine seems fairly remote.

28. In addition, a breach of his probation condition was alleged. On 12 April 2016, a letter was sent to Mr Ogilvie directing him to attend an appointment on 20 April 2016. He contacted the Community Corrections Officer to advise that he could not attend and the appointment was re-scheduled to 26 April 2016 at 6:00 pm. Mr Ogilvie did not report and made no further contact.

29. I have considered, in a number of cases, the approach to be taken towards the breaches of a Good Behaviour Order. Of course, the precise response in each case depends upon the nature of the breach, the nature of the original offence and other relevant matters. The most serious form of breach is, of course, repeat re-offending, especially if the offending is of the same type as the offence which led to the sentence including the Good Behaviour Order.

30. Regrettably, for a Good Behaviour Order made when a sentence of imprisonment is suspended, there is no provision for the Court to take no action, or take minimal action, when the breach is trivial or excusable. I suggest that this is a matter where reform would be desirable. As noted above, the only two options available to the Court, which has cancelled a Good Behaviour Order, are to impose the sentence that was suspended, or to resentence the offender. The latter involves imposing a sentence for the original offence that will usually be required to be somewhat more severe because the breach of the Good Behaviour Order shows that the trust reposed in an offender, by permitting him or her to be in the community, subject to a Good Behaviour Order, is eroded by the breaches committed.

31. Nevertheless, I adopted, in Saga v Reid [2010] ACTSC 59 at [99]- [101], what had been said in other cases, namely that the failure of courts to act where there has been a clear breach of the conditions of a conditional release order, such as a Good Behaviour Order, imposed when a sentence of imprisonment is suspended and by which the offender has avoided being sentenced to full-time imprisonment, is likely to bring sentences into disrepute.

32. On the other hand, as I pointed out in Guy v Anderson [2013] ACTSC 5 at [83]- [87], there is, in this jurisdiction, no presumption in favour of imposing the original sentence that had been suspended. Thus, a court may, in an appropriate case, merely sentence the offender to the same sentence, including suspension of the term of imprisonment, as originally imposed. While that would have the inevitable effect of extending the period in which the offender is subject to a Good Behaviour Order, because a Good Behaviour Order cannot be backdated, this can also be modified.

33. As I also pointed out in R v Kekalainen (No 2) [2015] ACTSC 369 at [48], the re-sentencing can also take into account the level of compliance and what has been completed already under the original sentence imposed, including a Good Behaviour Order.

34. While Mr Ogilvie has exhibited lack of commitment to compliance with his obligations, it does seem to me that the failure to take prompt action by the authorities has lulled him into a false sense of security about the requirements for compliance. On the other hand, he has had opportunities to address his offending behaviour and to comply with the directions of those administering the Order.

35. He denied getting telephone calls from the Community Corrections Officer and said that, when he called the officer, he usually had to leave a voice message, saying that he did not think he had called back. Mr Ogilvie said that he did answer all calls that came through his telephone.

36. I am not prepared to accept this evidence at face value. I do not accept that he has not been contacted. Indeed, his admission of the breaches show this, to some extent.

37. Nevertheless, in relation to the failure to undertake community service work, I am satisfied that Mr Ogilvie could reasonably have understood that his concerns about working with offender who may put him in danger, and his concerns about the medical condition of his knee, meant that the matter would be referred back to this Court for a review of the Good Behaviour Order and his circumstances.

38. In these circumstances, while I consider that appropriate action should be taken to recognise that he has breached his obligations, I do not consider that the breaches are so serious as to show such a disregard of his obligation that the sentence I suspended must be imposed.

39. That requires re-sentencing. Of course, in re-sentencing, some part of the sentence may be imposed, if that is appropriate.

40. In order to re-sentence, it is necessary to have regard to the circumstance of the offending, together with Mr Ogilvie's subjective circumstances though, of course, these need to be brought up-to-date, so far as possible, to the present time.

41. I have set out the facts of the original offences in R v Ogilvie [2015] ACTSC 296 at [6]- [11].

42. Briefly, they may be summarised as follows. For the first series of offences, Mr Ogilvie and his co-accused drove a stolen van to the sports club, against which they committed the burglary, on 18 June 2014. They drove the vehicle up to the glass doors of the club, used a small mallet to smash the door, kicked in the bottom of the glass door and tried to open the door handle; could not and, after failing to be able to get in entirely into the club, they drove away.

43. That neither of them fully entered into the premises does not mean that there has not been a trespass. See R v Brown (Vincent) [1985] EWCA Crim 3; [1985] Crim L.R. 212.

44. The next day, Mr Ogilvie went, on his own, to commercial premises where he had been previously been employed. He smashed a glass door, removed a cash register and drove out someone else's motor vehicle.

45. Sometime later, he admitted his involvement in one of the two incidents and assisted police to recover the vehicle he had taken from the commercial premises.

46. I set out Mr Ogilvie's subjective circumstances in R v Ogilvie (at [16]-[24]). I do not need to repeat them in full.

47. In summary, I note that Mr Ogilvie was then 20 years old, and is now 21. His parents separated when he was about five, but he has a supportive relationship with his mother.

48. He had difficulties at school, being bullied and the subject of some violence. He worked for about three years after school, enrolling in an apprenticeship, but lost it after a fight that did not seem to be entirely his fault. He then started using methylamphetamines and connected with a woman, his now former partner, who was, unfortunately, a regular drug user. He stopped using methylamphetamines after he was arrested and, although he has not had any formal drug rehabilitation, it does not appear that he has resumed using drugs. Certainly, there was no such allegation in the hearing.

49. Other than his knee injury, he has no physical health problems, except that he is somewhat overweight. He has had no involvement with Mental Health Services and he has no major psychiatric illnesses. Nevertheless, a consultant psychiatrist considered that he had some psychological injuries from his early developmental setbacks, and that these appear to be a trigger for explosive anger.

50. He has a relatively short criminal history. The most recent offences, apart from these current offences, were committed in December 2013. He was sentenced to three concurrent Good Behaviour Orders for those offences.

51. Since I sentenced him, Mr Ogilvie has had some employment. He was employed by a courier from about December 2015, but his employer lost the contract he had and Mr Ogilvie appears to have become redundant.

52. He then gained employment with the contractor who took over the earlier contract, but was underpaid, and he left that employment.

53. He was then employed by a concreting business as a welder, but his knee injury meant that he could not undertake the work required. He has been unemployed since about May 2016. He does wish to obtain further employment, and he told me that he had some prospects later this week.

54. Although Mr Ogilvie appears to have taken a rather cavalier attitude to his good behaviour obligations and exhibits some sense that he is entitled to choose how he should comply with the sentencing obligations I have imposed, he has not committed any further offences since these offences, which is a period of a little over two years. He has managed to obtain employment, and does not appear to have returned to drug use.

55. I must have regard to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). In this case, general deterrence is a significant factor, having regard to the seriousness of the offence. Given Mr Ogilvie's short criminal history, specific deterrence, while still relevant, has less significance. He has managed to remain crime free since then, and that reinforces my view that there are reasonable prospects of rehabilitation.

56. Mr Ogilvie's plea was a late plea, but, despite that, he is entitled to some discount. It should be a modest one, but take account of his remorse and the facilitation of justice.

57. I take into account the matters to which I am required, under s 33 of the Crimes (Sentencing) Act, to have regard. So far as I know them, they are for the most part set out in these reasons and in R v Ogilvie, to which I have had regard.

58. I referred, in R v Ogilvie (at [37]-[40]), to current sentencing practice, and I have regard to what I there said and in the cases which I mention.

59. Mr Ogilvie is still a relatively young man and shows some immaturity, for example, in his approach to his obligations under the Good Behaviour Order. He needs to be more serious about that, but I take his background and youth into account. He has some criminal history, but it does not deny him more leniency.

60. I described the offences as serious, especially the offence of aggravated burglary, which resulted in considerable damage to the premises and to the stolen van.

61. I accept that Mr Ogilvie is remorseful, but that remorse is perhaps less significant in the light of his lack of conscientious commitment to his obligations.

62. While I was sceptical at the earlier sentencing about Mr Ogilvie's promise of reform and plea that he had "turned the corner", that reservation is now less significant given that there has been no further offending.

63. At the time of sentencing, I noted that Mr Ogilvie has limited funds, which would prevent him from paying any realistic fine that was relevant in the circumstances. I note that he has already paid the compensation payable under the Order that I made and, accordingly, I do not need to repeat that in any re-sentence. I also take it into account as some compliance with his obligations.

64. Mr Ogilvie did say to me that he would prefer to pay a fine than to complete community service work and, although not currently employed, he expected to be employed and able to obtain the funds in due course. Naturally, those funds should only be obtained legally.

65. However, having given the matter some thought, I do not consider that a fine would be adequate to meet the sentencing objectives that a community service condition delivers, even work that involved him undertaking what he described as "boring" work. The work has, indeed, a social purpose and value, even though it probably is not intellectually stimulating.

66. At the end of the day, I consider that no other sentence than a sentence of imprisonment must be imposed, but it need not be served in full-time custody. I think, nevertheless, Mr Ogilvie should still undertake the community service work, though I will encourage it to be in circumstances safe to his health, and free from the fear of retribution by another offender. This should start again without taking into account the two hours that he has served, because they were entirely in an induction, which he may have to undergo again. That will also, in part, and together with the extension of the Good Behaviour Order that inevitably will need to be made, take account of the breach of trust, which I extended, through permitting him to remain in the community.

67. I note, too, that there are multiple offences, which raises the question of cumulation and concurrence, as well as totality. Initially, I have carefully considered the length of the sentences to ensure that, where there are overlapping common elements between them, as there are in this case, Mr Ogilvie is not punished twice. In this case, there are certain overlapping elements of the burglary with the theft, and with both burglaries, and with the use of the motor vehicles for the burglary in the first case, and in the second case, the subject of one of the thefts consequent upon the burglary.

68. I have also considered whether the sentences should be partly or wholly concurrent, because, for example, they are part of the same enterprise. In this case, again, each enterprise resulted in multiple charges. There is some need for concurrency to recognise that fact.

69. I have then, as required, reviewed the length of the term of imprisonment arrived at to ensure that the principle of totality is respected. This requires the total sentence to be adequate to reflect the criminality of the offences committed, but not more than that. In particular, that leaves Mr Ogilvie with a realistic prospect of reform and some hope to achieve his objectives in the community. Where necessary to achieve this, I have adjusted the cumulation or concurrency of the individual sentences.

1. I cancel the Good Behaviour Order made on 9 September 2015 and re-sentence you.

2. I confirm the conviction of aggravated burglary on 18 June 2014.

3. I sentence you to imprisonment for two years and one month, to commence on 8 July 2016 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.

4. I confirm the conviction of dishonestly driving somebody else's motor vehicle without consent on 18 June 2015.

5. I sentence you to imprisonment for 10 months, to commence also on 8 July 2016, that is to be wholly concurrent on the sentence for aggravated burglary. Had you not pleaded guilty, I would have sentenced you to 12 months imprisonment.

6. I confirm your conviction for burglary on 19 June 2014.

7. I sentence you to 18 months imprisonment, to commence on 7 February 2018, 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 eight months imprisonment.

8. I confirm the conviction of dishonestly taking somebody else's motor vehicle without consent.

9. I sentence you to imprisonment for 10 months, to commence on 7 December 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 confirm the conviction for theft on 19 June 2014.

11. I sentence you to imprisonment for 10 months to commence on 7 February 2019, 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.

12. That is a total imprisonment of three years and five months.

13. I suspend that sentence today for a period of two years.

14. 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 two years, with the following conditions:

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

(b) a community service work direction that you perform 150 hours of community service work within two years from today;

15. I direct that you attend ACT Corrective Services at Eclipse House, London Circuit, Canberra City, by 4:00 pm today to make arrangements for continuing supervision and performing your community service work.

16. I recommend to ACT Corrective Services, that Mr Ogilvie be considered for work, such as making cages to capture Myna birds, which work will not cause a problem to his knee injury, and which will not risk him having contact with persons who may injure him.

71. Mr Ogilvie, they are the formal orders that I have made. In basic terms, what I have said is that, if there were not some reason not to do so, I would have sent you to gaol for three years and five months. That is still hanging over your head, and that can be activated at any time, but I have suspended it today, after you have served five days, because that is the time you spent in pre-sentence custody, with a Good Behaviour Order.

72. Now, you know what a Good Behaviour Order is. I explained it to you last time, and you are under it at the moment. You have complied with that, to the extent that you have not committed any further offences. That is most serious and would almost certainly require you to be serving some or all of that three years in gaol if you committed any further offences punishable by imprisonment. I will give you, in effect, another chance to do your community service work. I know you find it boring, I know you do not want to do it, but the fact is that you committed serious offences that inflicted damage on people, and loss on people, and the community expects that you will pay for that. If that is boring work then that is the payment that you have to make.

73. I have made a recommendation to Corrective Services. I cannot guarantee it, but Mr Nocka has heard your situation and he has heard what has had to be said. Hopefully he will be in a position not to put your knee at risk and not to put your safety at risk, with working with people that might know that you have given that evidence.

74. You are still under supervision. I do not know what is the matter with your phone or with Mr Nocka's phone but you have a duty, as well as he, to make contact and see that you do the right thing and that means attending when you are required to attend, and doing the community service work.

75. You have been through this now, and these remarks will be recorded so that if you do not comply with your community service work obligations, if you do not keep in contact with ACT Corrective Services, if you do not attend for supervision, then it will be clear that you have been warned. The warning is that the Good Behaviour Order will be cancelled and the likelihood is that you will be sentenced to a period of imprisonment. Whether it is the whole three years and five months or not depends on the circumstances as they then pertain, but that is the situation and there is a duty on you.

76. There is also a duty on Corrective Services to contact you, but if you have not heard, if you do not know what is going on, you have a duty to contact them, and I suggest that when you do that you make a note of that, and you keep details of that, so that if there is any dispute then you have got your records that you can take up there.

77. I hope that you will get some more employment but, in the meantime, before you get that employment, why do you not do some community service work, and do as much as you can, to get it out of the way, so that is out of the way. Then, if you remain crime free and do not commit any further offences, you can put this episode behind you.

78. It is a really bad time in your life. You committed some really serious offences, but now is the opportunity. You are a young man, you have the rest of your life before you. Now is the opportunity for you to make something of that, if you care to do so. If not, you know what the consequences are.

I certify that the preceding seventy-eight [78] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.