R v Raftery

1. These are proceedings for breach of a good behaviour order imposed as part of a suspended sentence. The offender, James Raftery, was sentenced by Elkaim J for a very serious theft offence: R v Raftery [2022] ACTSC 77. Although there was only one charge, it involved a substantial amount of money which Mr Raftery stole from a vulnerable elderly woman. He has been unable to repay her.

2. Elkaim J sentenced the offender on 19 April 2022 to a term of imprisonment for 12 months and 21 days after discount for a plea, suspended after four months upon his entering into a good behaviour order, the term of which was from 17 August 2022 until 16 August 2024. The offender served almost 21 months of that good behaviour order without incident when he committed the breach offence which brings him before this Court today.

3. The breach offence was an offence of aggravated common assault committed on 30 April 2024. The circumstances of that offence were that, while the offender was living with his mother, evidently in tense circumstances, he threw a washing basket at her. It is not clear whether she was injured. There is mixed information on that issue.

4. The offender was sentenced for that offence on 10 December 2024 by Magistrate Campbell to a good behaviour order for a term of six months. The sentence imposed suggests that her Honour assessed the assault as one of lesser seriousness. The offender was charged with an aggravated offence because the assault involved a family member and is therefore regarded under the legislation as an offence of domestic violence. As I will explain, the offender’s relationship with his mother has at times in the past been fraught, although he describes her as now being very supportive. There has been no incident since that assault.

5. Upon sentencing the offender for the aggravated common assault, Magistrate Campbell committed him to this Court to be dealt with for the breach of the good behaviour order, as required by s 107(2) of Crimes (Sentence Administration) Act 2005 (ACT). Section 110(2) of that Act provides that, if the court is satisfied that an offender has breached any of their good behaviour obligations, the court must cancel the good behaviour order and either impose the suspended part of the sentence for the original offence or resentence the offender for that offence.

6. The DPP does not contend in the circumstances of this case that I should impose the sentence suspended by Elkaim J. If that sentence were to be imposed, it would require the offender to spend a further eight months and 21 days in custody. I agree that that would be unduly stern in the circumstances of the present case for the following reasons. First, as I have explained, the breach offence is not one of great seriousness. Secondly, the offender was well into the period of the good behaviour order at the time he committed the breach offence, having served almost 21 months without incident before the breach. Thirdly, in addition to those objective factors, his personal circumstances militate against sending him to a period of fulltime custody at this stage.

7. The personal circumstances are set out in two documents that were before Elkaim J which are Exhibits 1 and 2 before me, as well as a presentence report presented to this Court prepared more recently, which is Exhibit B. Exhibit 1 before Elkaim J was a court duty report which explained aspects of the offender’s upbringing. I have been informed from the bar table, and accept (as it is referred to in his Honour’s judgment), that there was also evidence before his Honour from the offender’s mother. In short, the evidence establishes that the offender had what might be described as a dysfunctional upbringing, being raised by a mother who then suffered from a heroin addiction.

8. There is information included in the material before me that, on at least two occasions, he observed her in the throes of a heroin overdose. Eventually, she was arrested and sentenced to imprisonment for a period of two years, during which the offender lived with his grandparents. He describes those two years as the only stable episode in his childhood. At the end of that two-year period, his father, who also evidently has an addiction to illicit substances, obtained custody of him and took him to a household where illicit substances were used.

9. It is clear in the circumstances that Bugmy principles are enlivened in this case: Bugmy v The Queen [2013] HCA 37; 249 CLR 571. The offender was raised in circumstances where the two people charged with providing him with the kind of family support and social scaffolding likely to produce a functional lifestyle instead introduced him to their lifestyle of habitual use of illicit drugs. I am satisfied that his moral culpability for the consequences of the ongoing traumatic impact of that upbringing is significantly reduced.

10. Unsurprisingly, the offender has himself also struggled with addiction to illicit substances. He has insight into that difficulty, as recorded in a letter he put before Elkaim J in which, in effect, he begged for help with his drug addiction. He raised the possibility of the Court allowing him to participate in the Drug and Alcohol Sentencing List under a drug and alcohol treatment order.

11. Having regard to the seriousness of the theft offence involving the vulnerable elderly victim, Elkaim J evidently considered that that was not an appropriate course. Without the wrap-around support of the treatment team in the Drug and Alcohol Sentencing List, the offender instead had to deal with his addiction more or less on his own in gaol and when released into the community. He admits having relapsed into drug use following those events.

12. More significantly in terms of his ability to remain abstinent, the offender has been diagnosed with a serious heart condition which requires regular monitoring. He has been told by his cardiologist that, if he resumes the consumption of illicit substances, he may well die as a result. That information has had a sobering effect on him and has assisted him to remain mostly but not completely abstinent.

13. The parties each provided written submissions which are both helpful and concise. I am grateful to both counsel for that assistance. In short, it is common ground that it would be too stern to require the offender to serve the sentence that was suspended by Elkaim J.

14. I have had regard to the principle identified in the prosecution’s submissions that the court must be astute not to bring the sentencing option of a good behaviour order into disrepute by in effect ignoring any breach. It has been said that the court should ordinarily impose a more severe sentence than that imposed in the first instance because the breach of a good behaviour order shows that the trust reposed in the offender has been eroded. However, the DPP also acknowledged that, in certain circumstances, the court can impose the same sentence. Indeed, there will be cases in which a lesser sentence is appropriate having regard to the course of the first good behaviour order.

15. In the case of this offender, I am satisfied that there is ample explanation for his offending in his history and his unhappy relationship with illicit substances to warrant putting trust in him again. I do not propose to impose a second good behaviour order for the same period as was imposed by Elkaim J. A balance must be struck between keeping him in the justice system, which he told the author of the presentence report was preventing him from getting on with his life, on the one hand, but also providing him with adequate support in remaining drug free.

16. The presentence report indicates that, if he were to be given a further good behaviour order, supervision would include strategies to address his areas of dynamic risk such as by supporting him in finding education, employment, financial support, accommodation support, leisure and recreation support, staying away from inappropriate social contacts, addressing his alcohol and drug issues, and providing counselling by way of emotional support.

17. His supervision may also include engagement with medical treatment providers, engagement with alcohol and drug addiction intervention and possibly mental health intervention. The service asks that a condition be included that such supervision only be for the period deemed necessary by ACT Corrective Services.

18. In all the circumstances, I am satisfied that it is appropriate to impose by way of a resentence a good behaviour order for a period of 12 months on the core conditions with the additional condition sought by the service that supervision be only for the period deemed necessary by ACT Corrective Services.

Orders

19. For those reasons I make the following orders: (1) The good behaviour order imposed by Elkaim J is cancelled. (2) I resentence you for the offence of theft (SCCAN 15/2022) to a Good Behaviour Order for a period of 12 months on the core conditions and on the basis that supervision will be only for the period deemed necessary by Corrective Services.

I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: