R v Shiels [2015] ACTSC 73

1. The conviction entered on 20 November 2013 of the charge of obtaining property by deception on 7 May 2013 be confirmed.

2. Mr Shiels be sentenced to 12 months imprisonment to commence on 16 December 2014.

3. The conviction entered on 20 September 2013 of the offence of obtaining property by deception on 12 May 2013 be confirmed.

4. Mr Shiels be sentenced to nine months imprisonment, to commence on 16 July 2014, that is to be cumulative as to four months on the earlier sentence.

5. The conviction entered on 20 September 2013 of the offence of attempting to obtain property by deception on 15 May 2013 be confirmed.

6. Mr Shiels be sentenced to six months imprisonment, to commence on 16 December 2014, that is to be cumulative as to two months on the sentence for the offence of obtaining property by deception on 12 May 2013.

7. That the total term of imprisonment is a period of 18 months imprisonment.

8. That the non-parole period is to commence on 16 December 2014 and end of 15 August 2015.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Deferred sentence order - Failure to comply with bail conditions - Failure to return to court

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Sentencing - Seeking drug rehabilitation - Serious mental health issues - Alleged offences in another jurisdiction - Sentence to be served under conditions of segregation

Crimes (Sentencing) Act 2005 (ACT), ss 27, 78, 118

Channon v The Queen (1978) 33 FLR 433

Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506

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

R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346

R v Shiels (Unreported, Australia Capital Territory Supreme Court, Refshauge ACJ, SCC 107 of 2013, 20 September 2013)

Saga v Reid [2010] ACTSC 59

Legal Aid ACT (Defendant)

1. Brennan J said in Channon v The Queen (1978) 33 FLR 433 at 437:

The necessary and ultimate justification for criminal sanctions is the protection of society from conduct which the law proscribes ... Criminal sanctions are purposive, and they are not inflicted judicially except for the purpose of protecting society

2. French CJ said in Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506, 537, [32]:

Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.

3. One of the most useful sentencing tools that the legislature has given to the courts to achieve these objectives is the deferred sentence order. Under s 27 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), where an offender, even an offender who has committed a serious offence, is making genuine and appropriate efforts to address the causes of his or her criminal behaviour, often a result of drug addiction or mental health issues, that order permits the court an opportunity to have the offender continue to address those matters.

4. If he or she is successful, that will ensure, as French CJ pointed out, the ongoing protection of the community, being the ultimate objective of judicial punishment, and the courts can respond appropriately. Like good behaviour orders, which have some similarity to deferred sentence orders, the integrity of such orders is important to their effectiveness. Thus, as I pointed out in Saga v Reid [2010] ACTSC 59 at [99]- [101], in relation to good behaviour orders, there is a risk that they will be brought into disrepute if the courts do not act decisively on clear breaches of them or, in the case of deferred sentence orders, failures to take advantage of the opportunity provided by them.

5. This can be more complicated in relation to deferred sentence orders, for the particular mechanism to address the factors that have contributed to the offender's criminal behaviour may be addressed in a variety of ways and, while the mandated means contemplated by the deferred sentence order may not be pursued, other alternatives may be tried with the same effect. It would be inappropriate for the courts to ignore successful efforts made by an offender, even if they were not those in contemplation when the original order was made.

6. This is the complexity of the sentencing task I now face in relation to Daniel John Shiels, who appears before me for sentencing in relation to three offences to which he has pleaded guilty, namely: two counts of obtaining property by deception and one count of attempting to obtained property by deception.

7. Obtaining property by deception is an offence against s 326 of the Criminal Code 2002 (ACT) which provides for a maximum penalty of 1,000 penalty units (that is a fine of $110,000) and imprisonment for ten years). Under s 44 of the Criminal Code, a person who is convicted of attempting to commit a crime is, on conviction, punishable as if the attempted offence had been committed.

8. Thus on all charges, Mr Shiels is liable to the same penalty, namely the maximum penalty specified above. As the High Court has said in many cases, such as Markarian v The Queen (2005) 228 CLR 357 at 372; [30]-[31], the maximum penalty is a sure sign of the seriousness with which the courts should consider offences.

9. I set out the facts of the offences in the remarks I made when making a deferred sentence order, R v Shiels (Unreported, Australia Capital Territory Supreme Court, Refshauge ACJ, SCC 107 of 2013, 20 September 2013), and I do not need to repeat them. In summary, Mr Shiels purchased a combination washing machine dryer, for $1,270, with a credit card number which had not been issued to him. Five days later, he went back to the same store and purchased a Notebook, black leather case and sim card to a total value of $710 with the same credit card details. Three days later, he attempted to use the same credit card details for the purchase of a mobile phone, but security staff became suspicious and police were called. Mr Shiels was arrested.

10. Initially, Mr Shiels pleaded not guilty, but on 25 July 2013, he entered a plea of guilty. I have also set out Mr Shiels' subjective circumstances in R v Shiels and again I adopt what I there said.

11. In brief, Mr Shiels is now 29 years old. He identifies as Aboriginal and has had a dysfunctional home life with features of an itinerant lifestyle, domestic violence and abuse of alcohol. He was also sexually assaulted as a child. He had a disrupted education and left home and school at 14, living on the streets for about 18 months. He has successfully completed a motor mechanics apprenticeship and has been employed by a number of businesses, spending five years as an assistant manager of tyre retail business, though his substance abuse led to that ending.

12. He commenced using drugs at the early age of 10, which is well before he could make an informed decision about that: see R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 at 397-8, [273]. He has had periods of abstinence but these offences were committed while he was under the influence of drug addiction. He was accepted into the Salvation Army's Canberra Recovery Service program in 2013 and it was for the purpose of completing that program that I made the deferred sentence order.

13. Mr Shiels has an extensive criminal history, mostly of dishonesty offences, clearly related to his drug habit. Indeed, he said that the only time he did not offend was between 2009 and 2011, when he was not using illegal substances. He has had some attempts at drug rehabilitation.

14. The offences are serious offences, not only because of the maximum penalties that the legislature has prescribed (Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at 133), but also because of the effect they have on the community. In R v Shiels, I assessed the offences as not in the highest range of criminality for such offences. I do not wish to change that assessment and I repeat it.

15. An important feature of the sentencing factors, to which I must have regard, is that Mr Shiels named his drug dealer, who had encouraged him to commit the offences, and also named his co-offender. I refer to that latter.

16. As indicated, I made a deferred sentence order on 20 September 2013 (R v Shiels at [8]-[10]). I take into account the considerations I then gave to the circumstances of the offence and his situation. When making the order, I explained, as required under s 118 of the Sentencing Act, what would happen at the end of the deferred sentence order. I said:

I indicate that if you do not comply with this order and the bail conditions, I consider that you should be sentenced to a term of imprisonment for approximately 24 months, to be served by full time custody or a substantial period of periodic detention. I indicate that if you comply with this order and the bail conditions, I consider that you should be sentenced to imprisonment for a period of approximately 24 months to be served by either periodic detention or wholly suspended with a good behaviour order and perhaps a community service condition.

The first [condition] is [to] undertake the Bridge Program and I expect you to complete it. If there are problems with it, come back and see me. You will be back here on 20 December [2013] just to see how it goes ... If there are problems along the way, come back and see me. Mr Davies will arrange that because, if you just give up or if you just piss off, then you will be back in jail. You have just got to come back and we will try to work it out. I do not give you any guarantees, it may be that you will have to go to jail; that depends on what happens in the circumstances, but if you do not come back, if you just take off, then you will go to jail, all right? If you come back, we can see what we can do and Mr Davies will explain that I am quite creative at times about that. So if you are chucked out, or if you leave, come back, all right, within 24 hours or if you leave on Friday afternoon, on Monday morning come back, see the Registrar and say that, 'I need to come back and see Refshauge J' so that we can work something out.

18. On 11 November 2013, Mr Shiels did reappear in my court because he found that there was another participant in the Canberra Recovery Services program with whom he had had some difficulties in the past. By the time he appeared in court, however, the differences had been resolved and so his bail did not need to be varied.

19. On 19 November 2013, however, Mr Shiels was discharged from the Canberra Recovery Services program for "continual non-compliance and continuing a relationship with a female client of the program." He did subsequently make contact with ACT Corrective Services on 21 November 2013 and was directed to present himself to the Registrar of the Supreme Court to have the bail order reviewed. He failed to report to the Registrar of the Supreme Court and did not further report to ACT Corrective Services.

20. On 20 December 2013, I issued a warrant for Mr Shiels' arrest for failure to answer his bail. He was arrested on 3 March 2015. I remanded him in custody and, after a number of adjournments, he appeared for sentencing before me.

21. Although I requested a Pre-Sentence Report and a report from the Court Alcohol and Drug Assessment Services (CADAS) neither agency was able to provide a report within the time required. Despite a willingness of both agencies to provide a report if further time was required, Mr Shiels invited me to proceed with sentence. He gave sworn evidence before me.

22. In his evidence, he confirmed that, although he had been at the Canberra Recovery Service drug and alcohol program for two months, he formed a relationship with another participant in the program and, that being a breach of the program rules, both of them were discharged from the program. He discussed with Canberra Recovery Services the possibility of transferring to the Blue Mountains, where the Salvation Army also conducts a program of the same type, but that is not a program where he and his partner could both go as partners.

23. He also said that the loss of his son the previous year had significantly affected him, although I did not have any further details about that issue. He said that he made an error of judgment when he decided to leave Canberra. Nevertheless, he did leave with his partner and they went to Monbulk in Victoria. They obtained temporary accommodation and then approached a real estate agent and moved into more permanent rental accommodation.

24. Mr Shiels worked full time, obtaining work after a few weeks of unemployment with a retail tyre company, work for which he was quite experienced. His partner had savings which sustained them until he obtained work. He left the company after a few months because the pay was too low, but, shortly after, obtained another job at another tyre supplier business and for about six months was the assistant manager.

25. He became seriously ill with pneumonia and was admitted into an intensive care unit of the local hospital for over a month.

26. During the period he and his partner were in Monbulk, his partner gave birth to a child, a boy, however, she suffered from post natal depression and, without family support in Victoria, decided to return to Canberra where she had family support. She was subsequently hospitalised here for that condition.

27. In November 2014, Mr Shiels ceased work and he and his partner decided that they should both return to Canberra for ongoing family support. They returned at the end of February but he did not report to the court and, as noted above, Mr Shiels was arrested on 3 March 2015. He frankly admitted that, when he was at large in Victoria, he had relapsed on two occasions into drug use. On the first occasion it was for about three weeks. He did not tell me the precise details of the other relapse but he assured me that he has not used drugs since then. He has had some contact with Canberra Recovery Services by phone.

28. Since he has been in custody, he has suffered some ill health. He has contracted pleurisy and, at one stage, was taken by ambulance to the Canberra Hospital. He has some mental health issues. He has been re-prescribed Seroquel and Zoloft. On arrest, he was seen by ACT Health Forensic Services. He was assessed by that agency as having a moderate to severe substance induced mood disorder, associated with suicidal ideation and possible intent. It was reported that he had a past history of serious suicide attempts and was considered to be at high risk of suicide. He had a past history of depression and anxiety requiring active treatment. There are, it was considered, multiple psycho-social stressors on him at present.

29. Under cross-examination, Mr Shiels admitted that he knew the conditions of his deferred sentence order and that his bail required him to return to court were he discharged from the rehabilitation program he had entered, and he understood those conditions. He said the only reason he had not complied with them was because of his relationship. He denied a suggestion that he had not maintained contact with Canberra Recovery Services. He denied that he gloated while in Canberra that he was at liberty, notwithstanding that a warrant had been issued for his arrest.

30. An issue of some complexity was addressed. It was suggested to Mr Shiels that he had been charged with three dishonesty offences of misappropriation in Victoria. It was also put to him that he had made full admissions in relation to those offences. Mr Shiels ultimately did accept that there were three offences with which he had been charged in Victoria and for which he was granted bail. He told me in an earlier hearing that it was one offence. He did not admit that he had made admissions as alleged.

31. While his earlier description is not true, it appears that the three offences were relevantly related, in that they involved the purchase of a vehicle with a valueless cheque, the sale of that same vehicle and the purchase of another vehicle with a valueless cheque from the same purchaser on relatively close successive days. I shall deal with this issue further below.

32. He apologised to the Court for his failure to return to court after being discharged and recognised that he had an ongoing need to address his drug addiction.

33. It was agreed between the Crown and the defence that he had spent 77 days in pre-sentence custody before he was released on the deferred sentence order, and since then had spent a further 11 days in custody. Were I minded to back date any sentence of imprisonment to take these periods into account, that period would commence on 16 December 2014.

34. At the earlier hearing, after Mr Shiels' arrest, Constable Whitney of Gungahlin Police Station gave evidence. His evidence was broadly consistent with the evidence given by Mr Shiels. He said that he had received a phone call from an anonymous source that Mr Shiels was back in Canberra, which lead to his arrest. He said that Mr Shiels gave the reason for his returning as wanting to visit his son and partner. He had some brief information about the Victorian offences, but further evidence came to light which was advised to me by the Crown Prosecutor at the later sentencing hearing.

35. This matter presents somewhat of a complex dilemma. On the one hand, Mr Shiels made a fairly blatant decision when he was discharged by Canberra Recovery Services program not to comply with the terms of the deferred sentence order, and he failed to comply with the bail condition which required him to return to court, should he be discharged from the program. Ordinarily, that would mean that I would simply activate the default penalty that I indicated above.

36. On the other hand, Mr Shiels has engaged in some rehabilitation. Although the evidence I have of this is reliant on self report, his frank admissions of relapse into drug use for two periods gives some credence to his assertion that he has been otherwise drug free since the period I released him. He has undertaken two months of formal rehabilitation and later obtained a significant amount of steady employment. He has also entered into what appears to be a stable relationship which has resulted in the birth of a son, again elements of stability and rehabilitation.

37. Having said that, the charges in Victoria are of concern, particularly if, as alleged by the Crown, he has made admissions to the offences. Nevertheless, he has not been convicted of them. Commission of further offences would clearly go a long way to negative the gains he had otherwise made, as I have noted. Given that his criminal record shows a considerable number of dishonesty offences, further offences of that kind are of concern, particularly given some relapse into drug use.

38. Having given the matter careful thought, it seems to me that until he is convicted of the offences in Victoria, if he is so convicted, I should disregard them for the purposes of the sentencing now. I cannot take into account offending for which he has not been convicted, and to which he has not pleaded guilty. In my view, it is, however, important for the integrity of the sentencing regime in the ACT that there be consequences for his failure to comply with his bail conditions and the deferred sentence order.

39. Nevertheless, it also seems to me that he should be given credit for the rehabilitative efforts that he has made. While his relapses do show that there are still efforts required before he is able to be considered to be drug free, or able to manage his addiction, they are not substantial.

40. I also need to take into account that he is now required to be isolated in the Alexander Maconochie Centre. His willingness to co-operate with the criminal justice system by naming his drug dealer and his co-offender means that he is facing the well known consequences of such action. He is regarded as a pariah within the jail and will spend his time in more restrictive circumstances because of a risk of reprisals.

41. While I did take into account, in setting the original suggested penalties that I enunciated, a discount for assistance to the authorities, no party raised with me any conditions of imprisonment. This is a matter to be taken into account. In Muldrock v The Queen the High Court recognised that a sentence of imprisonment may be affected by the fact that the sentence may be served under conditions of segregation.

42. It seems to me that this, and the efforts that Mr Shiels has made with his rehabilitation in the meantime, must be recognised. I note that the penalties I indicated, both for compliance with the deferred sentence order, and non-compliance with it, were of a period of 24 months imprisonment as the appropriate period, the difference being in the way it was to be served. In both cases, however, I referred to the possibility of service by periodic detention. The Pre-Sentence Report for Mr Shiels' original sentencing assessed him as not suitable for periodic detention. Under s 78 of the Sentencing Act, I am prohibited from setting a periodic detention period for an offender unless a Pre-Sentence Report is given to the court about the offender's suitability. Despite a recommendation that an offender is unsuitable, I may, under s 78(5), nevertheless set a periodic detention period.

43. In this case, however, the reason given for the assessment that Mr Shiels was unsuitable was that he had a major, unaddressed problem with illicit drugs. While that has been partly addressed, as I have indicated above, I am not satisfied that it has been addressed to the requisite degree. I am also concerned by the mental health report that I had, which shows some considerable vulnerabilities of Mr Shiels, not only in custody but also in the community.

44. I note that under s 118 of the Sentencing Act, the penalties I indicated are properly described as those that an offender "might receive" if he or she complies, or fails to comply, with the conditions of the deferred sentence order and associated bail conditions. Those penalties are not, therefore, mandated. The court is not bound by them and may reconsider them in appropriate circumstances. This is, of course, subject to fairness, both to Mr Shiels and to the prosecution, which limits the changes that should be made other than for patent good cause.

45. It seems to me that the rehabilitation that Mr Shiels has achieved since he was the subject of the deferred sentence order, including the period he spent in the Canberra Recovery Services, the gaining of full time employment, the stability of his relationship with his partner and his relative freedom from illicit drug use, together with the inability to make an order for periodic detention, means that I should review the head sentence.

46. I considered whether I should release Mr Shiels on a good behaviour order, but feel that the somewhat more intensive supervision offered by parole is a further benefit to him. Nevertheless, it seems to me that the circumstances to which I have referred mean that a relatively low non-parole period is warranted as the period he must serve before being released.

47. I trust that the period is long enough for him to be able to participate in the Solaris Therapeutic Community, a drug rehabilitation facility within the Alexander Maconochie Centre. In the past, setting a non-parole period in these circumstances has not necessarily resulted in the offender being able to, indeed being invited to, undertake the program. One of the problems Mr Shiels would face is that if he remains in isolation, his access to the Solaris Therapeutic Community is likely to be denied.

48. As noted above, I have not taken into account the allegations that Mr Shiels has committed further offences in Victoria. Had he been convicted of those offences, then I would have had no hesitation in imposing the full 24 months imprisonment with an appropriate non-parole period.

49. Given that there are three offences for which I must sentence Mr Shiels, I have taken care to ensure that the sentences have a proper relationship, not only to the circumstances of each offence, but to each other. I have carefully considered the length of each sentence I am about to impose, to ensure that, where there are overlapping common elements between any of the offences, Mr Shiels is not punished twice.

50. I have also considered whether the sentences should be partly or wholly concurrent, because, for example, the offences are part of the same enterprise, or otherwise. I have then reviewed the length of the total term of imprisonment to ensure that the principle of totality is respected and that the total sentence is appropriate to reflect the criminality of all the offences committed, but no more than that, and to ensure that the total sentence is not crushing and leaves open the realistic prospect of continuing reform and the hope of the achievement of Mr Shiels' goals, as he has expressed them, when he returns the community. Where necessary to achieve this, I have adjusted the accumulation and the concurrence of the individual sentences.

52. I confirm the conviction I entered on 20 September 2013 of the charge of obtaining property by deception on 7 May 2013.

53. I sentence you to 12 months imprisonment, to commence on 16 December 2014. Had you not pleaded guilty and had you not provided assistance to the authorities, I would have sentenced you to 18 months imprisonment.

54. I confirm the conviction entered on 20 September 2013 of the offence of obtaining property by deception on 12 May 2013.

55. I sentence you to nine months imprisonment, to commence on 16 July 2014, that is to be cumulative as to four months on the earlier sentence. Had you not pleaded guilty and had you not provided assistance to the authorities, I would have sentenced you to 13 months imprisonment.

56. I confirm the conviction entered on 20 September 2013 of the offence of attempting to obtain property by deception on 15 May 2013.

57. I sentence you to six months imprisonment, to commence on 16 December 2014, that is to be cumulative as to two months on the sentence for the offence of obtaining property by deception on 12 May 2013. Had you not pleaded guilty and had you not provided assistance to the authorities, I would have sentenced you to nine months imprisonment.

58. That is a total term of 18 months imprisonment.

59. I set a non-parole period to commence on 16 December 2014 and to end of 15 August 2015.

60. I direct that you be noted to be a prisoner at risk.

I certify that the preceding sixty [60] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Refshauge