1. The convictions for the offences of sexual assault in the first degree, sexual intercourse without consent, sexual intercourse without consent and theft be confirmed.

2. The Good Behaviour Order made on 16 March 2009 be cancelled.

3. On the first count of sexual assault in the first degree, PM is sentenced to four years imprisonment to commence on 5 November 2012.

4. On the second count of sexual intercourse without consent, PM be sentenced to three years imprisonment to commence on 5 November 2014. That is to be cumulative as to one year on the first sentence.

5. On the third count of sexual intercourse without consent, PM be sentenced to three years imprisonment to commence on 5 November 2015. That is to be wholly concurrent with the second sentence.

6. On the fourth count of theft, PM be sentenced to 12 months imprisonment to commence on 5 November 2017. That is to be wholly cumulative on the third sentence.

7. The balance of the sentence be suspended today and that PM be required to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act for three years with a probation condition that, for three years or such lesser period as the person supervising PM thinks appropriate, PM be on probation, subject to the supervision of the Director-General or her delegate and obey all reasonable directions of that person, especially directions about treatment and counselling for alcohol abuse and grief and loss.

CRIMINAL LAW - Jurisdiction, practice and procedure - judgment and punishment - sentencing - breach of Good Behaviour Order - further offending - suspended sentence - Good Behaviour Order following suspended sentence - young offender - alcohol abuse - need for rehabilitation

Crimes (Sentencing) Act 2005 (ACT), ss 7, 12, 12(3), 63, 64(3), Pt 5.2

Crimes (Sentence Administration) Act 2005 (ACT), ss 86, 86(1)(a), 107(2), 108, 110, 110(4), 110(a)

Road Transport (Alcohol and Drugs) Act 1977 (ACT), s 22(d)

Road Transport (Driver Licensing) Act 1999 (ACT), s 32(1)(a)

Bukulaptji v The Queen [2009] NTCCA 7; (2009) 24 NTLR 210

Director of Public Prosecutions (NSW) v Cooke (2007) 168 A Crim R 379

Guy v Anderson [2013] ACTSC 5

Hall v CL [2015] ACTSC 286

R v Clune (No 2) [1975] VicRp 73; [1975] VR 737

R v PM [2009] ACTSC 24

Saga and Reid [2010] ACTSC 59

Tanner v Brown [2011] TASSC 59

Wilkins v Hague (2011) 258 FLR 355

Legal Aid ACT (Defendant)

1. On 16 March 2009, I sentenced PM for several serious sexual offences and one offence of theft. The sentences totalled seven years imprisonment and that was to be served as to the first three years by full time imprisonment and the last four years suspended. See R v PM [2009] ACTSC 24. As required under s 12 of the Crimes (Sentencing) Act 2005 (ACT), I made a Good Behaviour Order for those further four years.

2. Section 12(3) of the Crimes (Sentencing) Act requires that the length of the Good Behaviour Order must be as long as the period during which the sentence is suspended. The balance of the sentence that was suspended was four years, so that is the minimum period for which the Good Behaviour Order had to be made.

3. Ordinarily, where there is a lengthy period such as this, it would be more appropriate for a court to structure the sentence with a non-parole period and then a parole period. That could not be done in this case because, as PM was a young person under the age of 18 years when the offences were committed, s 64(3)(f) of the Crimes (Sentencing) Act excludes sentences of imprisonment imposed on young offenders from the parole regime in Pt 5.2 of the Act.

4. There are a number of advantages to setting a non-parole period, including the fact that the court will not necessarily know at the time the issue arises, what progress an offender has made to rehabilitation and what his or her particular circumstances then are. Management of the parole period, as this case shows, can be problematic if there is simply a suspended sentence for a long period in the future.

5. The Good Behaviour Order I made expired on 18 February 2015. On 24 September 2014, however, PM committed some driving offences. The facts were that he drove a red Honda Integra along Boolee Street, Reid, when he suddenly accelerated causing the vehicles wheels to lose traction against the road. This made a loud screeching noise.

6. PM drove to the end of Boolee Street and executed a U-turn and again accelerated - again causing the wheels to lose traction.

7. Police in the vicinity intercepted PM and spoke to him. He could not produce a driving licence. A check was conducted and the police facts alleged in the Magistrates Court hearing stated that his licence "was suspended on 18 July 2014". In fact, he had, on 22 September 2014, been disqualified from holding or obtaining a driver licence.

8. He underwent a breath screening test which proved positive. He was taken into custody and conveyed to City Police Station where he was directed to provide a sample of his breath for analysis. He failed to do so on any of the three times that he was directed to provide a sample of breath.

9. Investigations also showed that the vehicle in which he was driving was neither registered nor subject to a third party policy of insurance.

10. As a result, he was charged with offences of being a first offender driving whilst disqualified, driving an unregistered vehicle, using an uninsured motor vehicle on a road and failing, after having been the driver of a motor vehicle on a road, to provide a breath sample as directed by a police officer and being a repeat offender.

11. The latter offence of failing to provide a breath sample is an offence contrary to s 22(d) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT), which provides for a penalty of a maximum fine of 30 penalty units. Under s 27 of that Act, however, the court may instead or in addition sentence the person to imprisonment and, if a repeat offender, for 12 months.

12. The offence of driving whilst disqualified is an offence under s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) and attracts a maximum penalty for a first offender of 50 penalty units and imprisonment for six months.

13. The core conditions of a Good Behaviour Order, such as the one I made in relation to PM on 16 March 2009 are set out in s 86 of the Crimes (Sentence Administration) Act 2005 (ACT). Section 86(1)(a) provides that one of the core conditions is that the offender must not commit an offence against the Territory law that is punishable by imprisonment.

14. Accordingly, the convictions of PM of the two offences of failing to provide a breath sample and driving whilst disqualified each constitute a breach of the Good Behaviour Order I made. Accordingly, the Magistrates Court, having sentenced PM, committed him under s 107(2) of the Crimes (Sentence Administration) Act to this Court to be dealt with for the breaches of the Good Behaviour Order.

15. PM admitted the breaches and it falls to me to deal with him for them. As the Good Behaviour Order was made when a sentence of imprisonment was suspended, s 110 of the Crimes (Sentence Administration) Act applies and, in particular, provides as follows:

The court must cancel the Good Behaviour Order and either -

(a) impose the suspended sentence imposed for the offence; or,

(b) resentence the offender for the offence."

16. This is to be contrasted with the breach of a Good Behaviour Order not associated with a suspended sentence. In that case, under s 108 of the Crimes (Sentence Administration) Act, there are a range of additional options, such as taking no action, warning the offender and amending the order such as by extending it or making additional conditions such as a community service work condition.

17. The limited options in the case of a Good Behaviour Order made when a sentence of imprisonment has been suspended does indicate the seriousness of the consequences of a breach but raises issues of proportionality that are perhaps starkly exemplified in this case.

18. I have held in Guy v Anderson [2013] ACTSC 5 at [83]- [87], that there is no presumption in this jurisdiction in favour of imposing the sentence that was suspended.

19. Nevertheless, careful consideration needs to be given to that option for there are, as I explained in Saga and Reid [2010] ACTSC 59 at [99]- [101], important policy reasons for considering that option. As Howie JA (with whom Sully and Price JJA agreed) said in Director of Public Prosecutions (NSW) v Cooke (2007) 168 A Crim R 379 at 386; [23]:

There is nothing more likely to bring suspended sentences into disrespect than the failure of courts to act where there has been a clear breach of the conditions of the bond by which the offender avoided being sent to prison.

20. Nevertheless, there has been a recognition that justice may require a different response. In Guy v Anderson at [88], I pointed out that the court must consider matters such as the nature and seriousness of the offence which constituted the breach of the Good Behaviour Order to determine whether resentencing is disproportionate to the seriousness of the breaching offence.

21. In Tanner v Brown [2011] TASSC 59 at [94], Wood J said:

Ultimately, the question of whether it would be unjust to activate a suspended sentence will depend on an evaluation of the individual circumstances of each case. In assessing this question of whether it will be unjust to activate the sentence 'the objective of the suspended sentence option as reformative as well as penal' is to be borne in mind. Thus relevant factors may include those that indicate the progress made by an offender in relation to his rehabilitation. Some of the factors mentioned in the judgments of [R v Buckman (1988) 47 SASR 403] and the [R v Marston (1993) 60 SASR 320] are indicative of this consideration: disproportion between the original offence and the breaching offence or offences, whether the nature of the offence suggested that the offender has lapsed into a non-law abiding way of life and the question of whether the offender had reverted to criminal conduct comparable to the offence for which the suspended sentence was imposed. Allied to this consideration were the matters referred to in Buckman that the offender was making a genuine attempt at rehabilitation and that there had been an observance of the conditions of the suspended sentence for 18 months. In summary, relevant to the reformative aspects of the suspended sentence option is whether the suspended sentence is having its desired effect in terms of rehabilitation of the offender. See also Stanitzki v Higgins [1994] SASC 4600; (1994) 63 SASR 309.

22. In Bukulaptji v The Queen [2009] NTCCA 7; (2009) 24 NTLR 210 at 218; [35] Riley J set out some of these considerations in the following list:

(a) the nature and terms of the order suspending the sentence;

(b) the nature and gravity of the breach and, particularly, whether the breach may be regarded as trivial;

(c) whether the breach evinces an intention to disregard the obligation to be of good behaviour or to abandon any intention to be of good behaviour;

(d) whether the breach demonstrates a continuing attitude of disobedience of the law;

(e) whether the breach amounted to the commission of another offence of the same nature as that which gave rise to the suspended sentence;

(f) the length of time during which the offender observed the conditions;

(g) the circumstances surrounding or leading to the breach;

(h) whether there is a gross disparity between the conduct constituting the breach and the sentence to be restored;

(i) whether the offender had been warned of the consequences of a breach; and

(j) the level of understanding of the offender of his obligations under the terms of the order suspending the sentence and of the consequences of a breach.

23. In order to determine some of these matters I was provided with further evidence about PM. In particular, I had a copy of his prior criminal record, the Pre-Sentence Report that was before the Magistrates Court, a letter from the ACT Health, Alcohol and Drug Service, a letter from the Winnunga Nimmityjah Aboriginal Health Service and the report of an assessment made by the Court Alcohol and Drug Service (CADAS) Alcohol Interlock Program.

24. From this material I am able to make the following findings, relevant to whether I should impose the sentence that was suspended or resentence PM.

25. In the first place, I note that PM has not been found guilty of an offence between when I sentenced him on 16 March 2009 and when he was sentenced in the Magistrates Court on 17 June 2015. That is six years and three months.

26. The offences, however, were committed on 24 September 2014. That is about three years and seven months after he was released from custody and five months before the expiry of the Good Behaviour Order.

27. The breaching offences committed by PM, namely traffic offences, were of a completely different nature from those for which I sentenced him which were sexual offences and theft. The circumstances in which the further offences were committed showed elements of stupidity and reckless swagger. The police Statement of Facts did not suggest that there was any actual danger to anyone by his actions.

28. When originally sentencing PM, I did not give him any specific warning as to the consequences of any breach of the order that may follow.

29. In the circumstances, I do not consider that I should impose the sentence that was suspended when I sentenced him in 2009.

30. That, however, requires me to resentence PM. Prima facie this means that, on the breach proceedings, the sentencing discretion in respect of the original offences is re-enlivened and I can then impose any sentence that would be appropriate for the offences.

31. I have considered this matter carefully in Wilkins v Hague (2011) 258 FLR 355 at 368-71; [109]-[120] though, in the circumstances, it was not necessary for me to come to a final view about the precise limits of the discretion. In particular, though I did not express a final opinion, I considered the section and the example given to s 110(4) of the Crimes (Sentencing Administration) Act as follows:

(4) The Crimes (Sentencing) Act 2005 applies to the resentencing in the same way that it applies to the sentencing of an offender on the conviction for the offence.

The Magistrates Court convicted Desmond of an offence. The court sentenced Desmond to imprisonment for six months for the offence and made a suspended sentence order for the entire sentence of imprisonment. The court also made a Good Behaviour Order for the six-month period. Desmond breaches the order. In resentencing Desmond the court may impose a sentence of imprisonment to be served by periodic detention.

32. Whether one could impose a more severe sentence seems to me to be somewhat problematic, for reasons I there expressed, yet it is difficult to see what response one could make if one did not do that. In resentencing, for example, one might recognise the breach of the Good Behaviour Order, amend the order by making a community service work condition. That would make the sentence more severe. One might add a fine. That would also make the sentence more severe.

33. By imposing the sentence, but requiring it to be served by periodic detention is also making the sentence more severe.

34. There may, however, be limits. For example, it may be that it would be inappropriate to extend the term of imprisonment originally imposed, part of which was suspended. That could be problematic. I do not, however, have to finally decide that in this case.

35. It follows from s 110(a) of the Crimes (Sentencing Administration) Act, however, that the sentence must be one that meets the relevant purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act for the original offences. It is not, for example, simply a penalty for the breach of the Good Behaviour Order which may be applicable for breaches of the Good Behaviour Order not associated with the suspended sentence, as I have referred to above (at [16]-[17]).

36. In this context, I have had regard to what I said in the R v PM about the facts that constituted the offences, the subjective circumstances of PM and the seriousness of the offences. I do not need to repeat what I there said but I take it into account.

37. The material provided to me, to which I have referred above (at [23]), enables me to make the following additional findings.

38. PM does not seem to have been able to address his alcohol abuse despite my exhortation in R v PM at [98], where I expressed my "hope that you continue working on your rehabilitation".

39. It appears that he may have been getting his alcohol abuse under control until a motor vehicle collision in which he was involved in early 2014. Although his use was thereafter variable, there were periods of heavy use, including, at times, daily use.

40. Since his arrest for the further offences, he has made significant efforts to address his alcohol use. He has been voluntarily abstinent. This has been encouraged by the fact that he has been in a relationship for about eight months and he and his partner are expecting a child. That is said to be seen by him as a turning point in his life, though there are risks, for Care and Protection are concerned about the situation, and intervention would be a risk for PM, who may revert to alcohol abuse in that event.

41. He commenced counselling at ACT Health's Alcohol and Drug Service in June 2015 and is reported by his counsellor to have "shown a good level of commitment to attending his fortnightly sessions and he has communicated openly and willingly."

42. He also attends groups and programs at Winnunga Nimmityjah Aboriginal Health Service where he is said to engage well and to be supportive and helpful. He has also attended men's groups. He has also had some counselling through Relationships Australia.

43. He has employment from 3 November 2015 as a Home Maintenance Program Trainer which will earn him an income and he is said to be proud and excited at the prospect.

44. PM has also experienced the death of family and friends and for which he feels significant grief.

45. He is assessed as at a moderate to high risk of reoffending which risks may be reduced if he undertakes specific interventions for his alcohol abuse and to assist with addressing his grief and feelings of loss.

46. Regrettably, I had no information about the other aspects of his rehabilitation that was related to his art and music and celebrating his Aboriginal heritage. Mr M Lalor, who appeared for PM, submitted that it was also relevant that the breaching offences had been dealt with in the Galambany Court. I have described the process and its effect in Hall v CL [2015] ACTSC 286 at [36]- [49]. I noted, in particular, that the advice of the panel in the Galambany Court should be respected as much as possible.

47. In this case, it seemed to me, that rather severe sentences had been imposed but it was submitted that this was a reflection of the cultural considerations provided by the Galambany Court panel which, nevertheless, permitted PM to remain in the community with particular culturally appropriate support.

48. This is a relevant matter that I take into account.

49. I take into account all the matters to which I referred in the R v PM (at [83]-[93]).

50. I take into account also the further findings I have made above (at [33]-[47]) about his current situation.

51. It seems to me that the original sentences should not be disturbed. That, however, is not possible.

52. While the period of the sentence to be served by full time custody has been served and so I can deal with that under s 63 of the Crimes (Sentencing) Act, there is no provision for, nor possibility of backdating the suspended portion of the sentence, nor the associated Good Behaviour Order.

53. Had PM successfully addressed his alcohol abuse then there may have been a case for some reduction in the sentence to recognise addressed rehabilitation, but that is not the situation. In any event, the seriousness of the offences which I accurately described in the R v PM at [98] as "appalling, vicious and despicable crimes", leaves little room for greater leniency than that already given to him.

54. That will mean that although he has served over three years of the Good Behaviour Order without breach, I might be said to have difficulty of properly taking that into account other than as imposing no additional obligations, such as a fine or a community service work condition to the Good Behaviour Order.

55. It is not irrelevant, however, that PM has successfully served the three years of Good Behaviour Order. He has, however, not completely reformed, as the recent offending shows.

56. Nevertheless, this is a matter that, as Riley J said, is relevant and should be taken into account. I believe that I can reduce the overall sentence a little to recognise the period of good behaviour. That will result in a sentence that might appear unduly lenient but it is simply because I take into account pre-sentence penalties that cannot be directly addressed in the sentence, even if that leads to what otherwise might appear to be an unduly lenient sentence, as long as I articulate why I have done so. See R v Clune (No 2) [1975] VicRp 73; [1975] VR 737.

57. I do think, however, that I should make the conditions of the Good Behaviour Order more specific in order that the rehabilitation progress of PM might continue.

1. I confirm the conviction for the offences of sexual assault in the first degree, sexual intercourse without consent, sexual intercourse without consent and theft.

2. I cancel the Good Behaviour Order made on 16 March 2009.

3. On the first count of sexual assault in the first degree, I sentence you to four years imprisonment to commence on 5 November 2012. Had you not pleaded guilty I would have sentenced you to six years imprisonment.

4. On the second count of sexual intercourse without consent, I sentence you to three years imprisonment to commence on 5 November 2014. That is to be cumulative as to one year on the first sentence. Had you not pleaded guilty I would have sentenced you to four years imprisonment.

5. On the third count of sexual intercourse without consent, I sentence you to three years imprisonment to commence on 5 November 2015. That is to be wholly concurrent with the second sentence. Had you not pleaded guilty I would have sentenced you to four years imprisonment.

6. On the fourth count of theft, I sentence you to 12 months imprisonment to commence on 5 November 2017. That is to be wholly cumulative on the third sentence. Had you not pleaded guilty I would have sentenced you to 18 months imprisonment.

7. I order that the balance of the sentence be suspended today and that you sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act for three years with a probation condition that, for three years or such lesser period as the person supervising you thinks appropriate, you be on probation, subject to the supervision of the Director-General or her delegate and obey all reasonable directions of that person, especially directions about treatment and counselling for alcohol abuse and grief and loss.

59. I have, again, set a low period of full time custody, although it has already been served, because PM was a young offender at the time and because of the fact that he has remained out of trouble for most of the period of the Good Behaviour Order and need for rehabilitation.

60. PM, that is the formal order I have made. I have reimposed a sentence of a shorter period of six years, instead of seven years. You have already served three years of that, so there is only now three years that I have suspended. I do not think, realistically, I can do anything other than that but I have only made one condition, a probation condition, and that is to address your alcohol abuse, which you clearly do not have under control and the grief and loss counselling which may be necessary for you to come to terms with if you are actually going to move on.

61. These were stupid offences. They were at the lower end of seriousness and that is why I did not consider sending you to gaol for any period of time. But you are at risk and you ought to use this period of supervision effectively. You really do need to address your alcohol abuse because that will lead to trouble.

62. I was very impressed when I sentenced you on the last occasion about what you were doing with your cultural identity and your art and music. I have not heard anything about that. I hope that is ongoing and, if you put effort into that, that will give you some purpose in life. I am also impressed with the thought that you might become a father and that that might give you real incentive to behave and keep out of trouble.

63. If you commit any further offences in the next three years then, again, you can be brought back before the court. The fact that you have already breached the sentence means that the options available become less and less and less and, unless you want to spend further time in prison, then you need to work hard in getting some direction.

64. You are in employment now and I see you are wearing a jacket that implies that you have started your program with Winnunga and that is really good. Put some effort into that, put your effort into the family, keep out of trouble and hopefully the courts will not see you again.

I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Judgment of his Honour Justice Refshauge.