R v Watson [2021] ACTSC 339

Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aiding and Abetting – Aggravated Robbery – Driving Whilst Disqualified as a Repeat Offender – Breach of Good Behaviour Orders – Re-sentence – Drug and Alcohol Treatment Order – Rehabilitation – Reduction in Escalating Criminality Legislation Cited: Crimes (Sentence Administration) Act 2005 (ACT) ss 85, 108 Crimes (Sentencing) Act 2005 (ACT) pt 4.4, 6.4; ss 7, 10, 12A, 33, 46J, Table 46K 63, 80W, 80Y Criminal Code 2002 (ACT) ss 45, 309, 310 Magistrates Court Act 1930 (ACT) s 90B Road Transport (Driver Licensing) Act 1999 (ACT) s 32 Road Transport (General) Act 1999 (ACT) s 69 Supreme Court Act 1933 (ACT) pt 8

Cases Cited: Auld v The Queen [2013] ACTSC 21 Cardillo v Taylor [1999] WASCA 166; 29 MVR 301. Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR Director of Public Prosecutions (Vic) v Dalgliesh (Pseudonym) [2017] HCA 41; 262 CLR 428 Director of Public Prosecutions v Brooks [2008] VSCA 253 Fusimalohi v The Queen [2012] ACTCA 49 Hili v The Queen [2010] HCA 45; 242 CLR 520 Hogarth v The Queen [2012] VSCA 302; 37 VR 658 Kelly v Ashby [2016] ACTSC 346; 73 MVR 360 Markarian v R [2005] HCA 25; 228 CLR 357 Police v Cadd (1997) 69 SASR 150 R v Collier [2019] ACTSC 358 R v Crawford (No 1) [2020] ACTSC 245 R v Di Bitonto [2016] ACTSC 280 R v Hawkins [2020] ACTSC 29 R v Henry [1999] NSWCCA 111; 46 NSWCR 346 R v Hodge [2015] ACTSC 214 R v Horn [2017] ACTSC 36 R v Krutsky [2013] ACTSC 278 R v Macfarlane (1993) 2 Tas R 201 R v Mathews [2020] ACTSC 364 R v Murray [2016] ACTSC 173 R v Nicholas; R v Palmer [2019] ACTCA 36 R v Ridgeway [2018] ACTSC 8 R v Salcedo; R v Stretton (No 3) [2018] ACTSC 305 R v Solomon [2005] NSWCCA 158; 153 A Crim R 32 R v Tonna (No 1) [2020] ACTSC 260 R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 R v Watson [2020] ACTSC 21 R v Will [2018] ACTSC 154 R v Williscroft [1975] VR 292 Robertson v Leferve [2012] ACTSC 22

Text Cited Practice Direction 2 of 2018: Criminal Case Conferences

Parties: The Queen (Crown) Joshua Darcy Watson (Offender)

Representation: Counsel M Smith (Crown) K Archer (29 April 2021); C Natoli (6 May 2021) (Offender)

Solicitors ACT Director of Public Prosecutions (Crown) David Healy Solicitors (Offender)

File Numbers: SCC 166 of 2019 SCC 229 of 2021 SCC 230 of 2021

REFSHAUGE AJ

Introduction

1. It is perhaps inevitable that those who commit criminal offences because of, or substantially because of, a dependency on alcohol, other drug use, gambling or the like, will continue to offend if the dependency is not addressed. Ultimately, such an offender must himself or herself address that dependency, but the evidence internationally is that the courts can play a part in this, although often the seeds of the problem are sown at an early age, usually well before the courts see the offender. Often, the courts see the offender only after the dependency has both become entrenched and has led to serious offending.

2. Indeed, this Court has seen offenders who have committed serious offences, such as burglary, at ages as young as 11 and 12 years old. The courts, under present sentencing law, are required to have regard to the seriousness of an offence when imposing sentence. This is an important part of the mechanisms required to set standards and norms of conduct that will protect a civilised and thriving community.

3. Nevertheless, legislatures have created sentencing options that provide courts with alternatives to punishment to address offending. The challenge for courts is to assess when such alternatives will be effective, maintain respect for lawful conduct and contribute to a safe and productive society where its members can develop their potential without fear, disturbance or worse.

4. Thus, the Court must sentence Joshua Darcy Watson for the offence of aiding and abetting a robbery and a summary offence of driving whilst disqualified as a repeat offender. Conviction for those offences would, however, also constitute a breach of a Good Behaviour Order made when Mr Watson was sentenced on 7 February 2020 by Loukas-Karlsson J for an offence of aggravated burglary, for which her Honour sentenced Mr Watson to a term of 18 months imprisonment, suspended after he had served 8 months imprisonment: see R v Watson [2020] ACTSC 21.

5. Mr Watson asserts that he was motivated by his dependency on illicit drugs to commit the offences and has sought that the Court make a Drug and Alcohol Treatment Order (Treatment Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) in sentencing him on his plea of guilty for the offences.

6. In the circumstances, the parties sought that this Court the breach of the Good Behaviour Order rather than refer it back to Loukas-Karlsson J be dealt with there and consented to doing so. While, as pointed out in Robertson v Leferve [2012] ACTSC 22 at [32], the judicial officer who made an order releasing an offender on conditional liberty should ordinarily deal with a breach of that order, it is not an immutable principle and any judge of this Court has the power to deal with a breach of an order imposed by any other judge, which, in this case, will be done as that is required if a Treatment Order is to be made.

7. In the sentencing hearing, the Crown, ably represented by Ms M Smith, tendered, without objection, the Crown Sentencing Tender Bundle. No challenge was made to any of the contents of the documents it contained. The Tender Bundle contained the Indictment and the official documents transferring the summary offence, which had been transferred under s 90B of the Magistrates Court Act 1930 (ACT), to be dealt with under pt 8 of the Supreme Court Act 1933 (ACT).

8. In addition, it contained:

(1) an Agreed Statement of Facts;

(2) Mr Watson's Criminal History;

(3) Drug and Alcohol Treatment Assessments under s 46J of the Sentencing Act (Suitability Assessments), prepared by ACT Corrective Services dated 13 April 2021 and Canberra Health Services dated 20 April 2021, the latter also with a Case Plan; and

(4) the relevant documents concerning the offence for which the Good Behaviour Order was made, namely:

(i) the Indictment;

(ii) the Statement of Facts;

(iii) three Victim Impact Statements;

(iv) two Pre-Sentence Reports dated 24 February 2020 and 19 September 2018, respectively;

(v) the sentencing remarks for the co-offender: R v Collier [2019] ACTSC 358;

(vi) the defence exhibits, comprising two letters of reference from Mr Watson’s wife and an employer; and

(vii) the sentencing proceedings for two offences which also constituted breaches of the Good Behaviour Order before her Honour, Special Magistrate J Campbell, on 2 March 2021.

9. Mr Watson, through his counsel, Mr K Archer, tendered, also without objection, nine certificates that certified his completion of a number of courses between September 2020 and February 2021. There was no challenge by the Crown to these documents. No oral evidence was adduced.

10. The following findings have been made from the contents of these documents.

The facts

11. The victim of these offences lived in Florey, ACT. The victim met the co-offender, Anthony Lachlan Batcheldor, whom Mr Watson aided and abetted in the robbery, in June 2019. Thereafter, the victim would see the offender about once a week, for periods of hours up to several days. Sometime in that month, Mr Batcheldor gave the victim a number of silver coins which Mr Batcheldor alleged were very valuable and asked the victim to find a buyer for them.

12. The victim took the coins to an acquaintance who had some knowledge of coins and then forgot about them. In about May 2020, Mr Batcheldor introduced Mr Watson to the victim. A little time later, Mr Batcheldor rang the victim asking where the coins were and the victim told him that he had left them with his acquaintance. Mr Batcheldor rang the acquaintance who said that she could not find them, but that they were fake and worthless, information which Mr Batcheldor passed on to the victim.

13. Mr Batcheldor wanted compensation and retribution from the victim on account of his perception of the value of the coins, which had now gone missing. On 13 June 2020, Mr Batcheldor rang the victim and demanded $1,000 within two hours and hung up. The victim went for a ride on his bike and met two friends at the Evatt shops and told them of the phone call. The three then returned to the victim's house.

14. At about 4:30 pm, Mr Batcheldor, Mr Watson and an unknown female went to the victim's house in Florey in Mr Batcheldor's motor vehicle, which appears to have been driven by Mr Watson. The two men knocked on the door and the victim let the two males into the house. The female remained outside. It is unclear on the evidence whether the victim’s two friends had left by this point, but it is likely that they had.

15. As they entered, the victim's back was towards Mr Batcheldor and Mr Batcheldor struck the victim on the back of his head, causing him to fall to the ground and feel pain in his head.

16. The victim crawled into the lounge room, but was repeatedly punched by Mr Batcheldor on the back of his head. He managed, however, to reach the lounge and lie on it. He saw Mr Watson standing behind Mr Batcheldor, near him. As the victim attempted to stand up, Mr Batcheldor punched him in the eye with a clenched first, causing the victim to feel pain. Mr Batcheldor then grabbed the victim's singlet and, tearing it, pulled it off the victim and threw the victim against the wall. Mr Batcheldor then approached the victim who raised his left elbow, causing Mr Batcheldor to retreat slightly.

17. This gave the victim the opportunity to open the front screen door and run away. He went to a neighbour's house and called the police. In the meantime, Mr Batcheldor smashed the screens of the televisions and glass panels on the heaters in the victim's house. He and Mr Watson then took various items of the victim from his house to the vehicle in which they had driven to the location. Mr Watson then drove himself, Mr Batcheldor and the unidentified woman away.

18. The items included a CCTV hard drive valued at about $300, a white Xbox gaming console worth about $500, a mobile phone worth about $300, a silver coloured lockbox containing hard drives and USBs of no stated value and fishing tackle and fishing rods valued at about $1,500.

19. Police attended within half an hour after being called and saw Mr Watson driving away. They noted the victim's injuries, which included a cut under his left eye, swelling causing his left eyelid to close, red marks with swelling above his left eyebrow and a large lump and swelling on his right temple. They took him to The Canberra Hospital where a medical practitioner examined him, identifying 12 individual injuries of various types, including lacerations, abrasions and bruising across his face, which were identified as having been caused by blunt force. The treating medical practitioner expected them to heal in between two and six weeks.

20. Later that evening, police located Mr Batcheldor's motor vehicle in a Lyneham carpark. It still contained some of the items taken from the victim's house, including the CCTV hard drive, which showed Mr Batcheldor, Mr Watson and the female arriving at the house in the car, the two men going into the house while the female waited outside and, a short time later, the victim leaving the house without his singlet on and, later, Mr Batcheldor and Mr Watson walking back and forth between the house and the car carrying various items.

21. Forensic examination of the items in the car showed Mr Watson's DNA on the steering controls of the car and Mr Batcheldor's DNA on the passenger side door armrest, window control and seatbelt buckle, as well as on the internal armrest, window control and seatbelt buckle on the rear driver's side of the car. Clothing found in the car also contained Mr Batcheldor's DNA. The victim's DNA was found on three caps found in the car. Mr Watson's fingerprint was found on the inside surface of the driver's side window.

The proceedings

22. On 2 July 2020, Mr Watson was arrested for a number of traffic offences and a drug offence committed on that day. Those offences were driving with a drug in his oral fluid (drug driving), driving whilst disqualified as a repeat offender, driving an uninsured vehicle, driving an unregistered vehicle, driving with number plates calculated to deceive and possessing a prohibited substance. These shall be referred to as the ‘July offences’.

23. At the same time, the police preferred charges arising out of the events in Florey on 13 June 2020, namely offences of damaging property, aggravated robbery and assault occasioning actual bodily harm These shall be referred to as the ‘June offences’.

24. Mr Watson was refused police bail and appeared in the Magistrates Court the next day, 3 July 2020. He made an application for bail, which was opposed, and he was remanded in custody. After three adjournments, on 28 August 2020, he pleaded guilty to all the July offences, save for the offence of possessing a prohibited drug, and not guilty to the June offences. The matters were all adjourned to 9 October 2020.

25. On 28 October 2019, Mr Watson had been convicted of a charge of driving whilst a disqualified driver and aggravated dangerous driving, and, in addition to a sentence of 4 months total imprisonment, was disqualified from holding or obtaining a driver licence for 2 years and 12 months, respectively, but to be served concurrently. Thus, he was, at the time of the June offences, a disqualified driver.

26. On 9 October 2020, police preferred a charge of driving whilst disqualified as a repeat offender on 13 June 2020. On that date, 9 October 2020, Mr Watson pleaded not guilty to that charge also. That charge shall be included in the reference to the June offences.

27. On that same day, the June offences were committed or transferred to the Supreme Court for trial. The July offences remained in the Magistrates Court. Mr Watson also then pleaded guilty to the charge of possessing a prohibited substance.

28. On 2 March 2021, the July offences eventually came before the Magistrates Court for sentence. Two of the offences were withdrawn, but replaced by other offences, namely the driving with number plates calculated to deceive was replaced by the offence of driving with number plates properly issued for another vehicle and the charge of possessing a prohibited substance was replaced by a charge of possessing a drug of dependence. Mr Watson pleaded guilty to these two offences.

29. Further on that day, Mr Watson was convicted of all the July offences, except the withdrawn offences and the two fresh charges and was sentenced to 3 months and 30 days imprisonment from 2 July 2020 to 31 October 2020. The learned presiding Special Magistrate also made an order under s 107(2) of the Crimes (Sentence Administration) Act 2005 (ACT), committing Mr Watson to the Supreme Court, because the convictions then entered meant that Mr Watson had also breached the Good Behaviour Order made on 7 February 2020 by Loukas-Karlsson.

30. The charges for trial in this Court proceeded in the usual way as other matters for trial would have proceeded. Before a trial date was set, a Criminal Case Conference (see Practice Direction 2 of 2018: Criminal Case Conferences) was held. As a result of that Conference, the Crown declined to proceed on the original Indictment filed, which had contained the three counts for the offences that had been the subject of the committal from the Magistrates Court, and filed a fresh Indictment containing the present count, namely aiding and abetting a robbery, to which Mr Watson then pleaded guilty.

31. Mr Watson has been in custody since 1 November 2020 on these charges, following the completion of the sentence imposed in the Magistrates Court on 2 March 2021. He has, thus, been in custody for 186 days.

The offences

32. An important matter when sentencing is the seriousness of the offence. This is made up of two parts. First, as the High Court made clear in Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 372; [30]-[31], the maximum penalty prescribed for a statutory offence is a matter to which a sentencing court must pay careful attention. It is the legislated maximum, it invites comparison with the worst possible case and the case before the Court and provides, taken and balanced with all the other relevant factors, a yardstick for the sentence to be imposed.

33. Secondly, the Court must have regard to the actual circumstances in which the offending conduct, which constitutes the offences, was actually committed. This is mandated by s 33(1)(a) of the Sentencing Act. In order to do this properly, a sentencing court must have regard to the factors which the courts have identified over the years as relevant factors to help determine the seriousness of the offending conduct in the particular case. This also addresses current sentencing practice, which s 33(1)(za) of the Sentencing Act requires the Court also to consider.

34. Robbery is an offence criminalised by s 309 of the Criminal Code 2002 (ACT) and establishes a maximum penalty of 14 years imprisonment or a fine of $224,000, or both.

35. By virtue of s 45 of the Criminal Code, a person who aids and abets the commission of an offence by someone else is taken to have committed the crime, but only if the other person actually commits the crime, and is, thus, liable to the same penalty as if he or she had committed the crime.

36. Mr Batcheldor has pleaded guilty to an offence of aggravated robbery. This, strictly speaking, is a separate offence created by s 310 of the Criminal Code. The elements of that offence, however, are that the person must commit a robbery and must do that in one of two circumstances of aggravation. In this case, that is that it was committed in company. Thus, by pleading guilty Mr Batcheldor has acknowledged that he committed a robbery in circumstances of aggravation. That constitutes the commission of the offence for the purpose of s 45 of the Criminal Code. Neither counsel put any contrary submission to that proposition.

37. The maximum penalty shows that robbery is a very serious offence, though not the most serious offence in the criminal calendar. This is how it was described it in R v Krutsky [2013] ACTSC 278 at [29], adopting the description in R v Williscroft (1975) VR 292 at 302 of “aggressive and rapacious conduct”, which violates the fundamental values of the community and requires those who engage in it to be punished severely. In R v Ridgeway [2018] ACTSC 8 at [10]-[12], Elkaim J explained that its seriousness stemmed from the anti-social nature of the crime, the interference with the citizen’s ordinary activities and “the sheer unacceptability that working people or otherwise carrying on legitimate activities should be threatened and have their lives put at risk’”.

38. Thus, it is both a crime against the person and a property crime: see R v Henry [1999] NSWCCA 111; 46 NSWCR 346 at 368; [99].

39. The use of actual violence makes the offence more serious, as does its commission in a private residence: see R v Krutsky at [31]. Both these factors are present here, making the events a more serious version of the crime.

40. The courts have regularly noted that what constitutes a home invasion is to be treated very seriously: see Director of Public Prosecutions v Brooks [2008] VSCA 253 at [22], Hogarth v The Queen [2012] VSCA 302; 37 VR 658 at 659; [1], R v Salcedo; R v Stretton (No 3) [2018] ACTSC 305 at [28], [116]-[118]. There was not, in this case, the use of a weapon which would have made the offence even more serious: R v Macfarlane (1993) 2 Tas R 201 at 210.

41. Though, strictly speaking, R v Henry deals with a different offence, the guideline judgment is, nevertheless, of assistance in identifying some other relevant factors. These include the value of any property stolen which, if significant, renders the offence more serious, the degree of planning, the intensity of the violence, the number of offenders and the effect on the victim.

42. In this case, the property taken was valued at $2,600, plus the value of those items for which no specific value was given but probably of a significant degree of personal, perhaps sentimental, value considering what they were. No Victim Impact Statement was provided to make a specific finding on this and much, but not all, of the items stolen were recovered. The loss of the mobile phone, which does not appear to have been recovered, would also have significant inconvenience value.

43. While Mr Watson entered the house, the female person did not and the evidence does not show her taking much part, certainly not in the actual robbery. Thus, there was the minimum number of persons present to actually constitute the offence.

44. The violence was quite significant and sustained. There were 12 separate injuries identified on medical examination. There was, however, no medical evidence, though the findings of the medical examination of the victim appeared to have been summarised in the statement of facts, as mentioned above (at [19]).

45. None of the injuries were of substantial seriousness and did not, for example, include any broken bones. They appeared mostly to be bruising and abrasions, but with some lacerations, and likely to heal in two to six weeks, as was noted in the Statement of Facts. Without a Victim Impact Statement, it can only be accepted that the offences must have been terrifying, especially aggravated by the anticipation which caused the victim to seek support in inviting friends back to his home, though those friends did not seem to provide much support in providing protection.

46. The Crown submits that there was a degree of planning. It is accepted that it was clearly intended by Mr Batcheldor to intimidate the victim, provide retribution and obtain compensation. The offence is one of aiding and abetting, however, and, as pointed out in R v Will [2018] ACTSC 154 at [27], the seriousness will depend on the extent of the role the aider and abettor took in the actual robbery.

47. It is clear that Mr Batcheldor was the primary offender and the one who committed the actual violence and the wanton damage of the victim's property, not Mr Watson. Mr Watson's presence was, at least, a support for Mr Batcheldor, designed to intimidate the victim further and reduce the likelihood of resistance. He did assist, however, to carry the stolen items out to the motor vehicle which he appeared to have driven to and from the victim's house. These are not minimal acts of participation in the robbery, but they are also not substantial.

48. Driving whilst disqualified as a repeat offender is prohibited by s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) and attracts a maximum penalty of one years imprisonment or a fine of $16,000, or both, together with a mandatory 24 month licence disqualification or longer period if the court so orders. Such a disqualification is cumulative on any other disqualification to which the offender is subject unless the court otherwise orders: s 69 of the Road Transport (General) Act 1999 (ACT).

49. As discussed in Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 at 306-8, [33]-[38], the offence is serious despite the moderate penalties. In particular, as noted in R v Tonna (No 1) [2020] ACTSC 260 at [30], the offence amounts to a defiance of a court order and justifies a deterrent sentence. In such an offence, continued offending in the same way, that is by driving in defiance of court orders, especially but even simply without legal authority, is an aggravating feature, perhaps not affecting the seriousness of the offence but the severity of appropriate sentence: see Cardillo v Taylor [1999] WASCA 166; 29 MVR 301.

50. The circumstances of the driving are relevant, especially if the driving is contumacious, that is, with a “total disregard of the disqualification in disobedience to the authority which imposed it”: Police v Cadd (1997) 69 SASR 150 at 179. This may well be established if, for example, the driving is soon after the disqualification has been imposed or simply because it is more convenient to drive, rather than as a result of some pressing need.

51. In this case, Mr Watson drove in a car with two other people, including the owner, to commit the principal offence. The facts do not suggest any reason for Mr Watson to drive rather than either of the others. Indeed, the accompanying female did not enter the premises, though she may have strategically waited in the driver's seat of the car in case the two males had to depart hastily. As noted above (at [25]-[26]), Mr Watson was disqualified a little over seven months prior to the offending. Nevertheless, the circumstances do seem to suggest that the driving whilst disqualified was contumacious.

Subjective circumstances

52. The personal circumstances of an offender are an important matter to consider in sentencing and s 33(1)(m) of the Sentencing Act requires the Court to do so.

53. Mr Watson was born 36 years ago and raised in Canberra. He is the youngest of four children, which includes two step-siblings. His parents remain married and he has a positive relationship with his parents, though he has not spoken to them since he was remanded in custody as he is embarrassed and ashamed to do so. He feels he has let them down. He has no contact currently with any of his siblings, none of whom have been subject to criminal charges.

54. He attained his Year 12 certificate and described a normal childhood, though he was somewhat 'troubled' and liked to cause trouble “just fighting in high school” which led him to being reprimanded at school. He did, however, graduate from college.

55. He then worked immediately after school, initially in a variety of short term labouring positions before becoming a stonemason with a company for which he worked for about 10 years. During this time, however, his illicit drug use escalated and his employer told him to take time off from work to seek help with his drug use. There is no evidence that he did that in any sustained way. The history is not clear, but he appears to have worked for another company as a stonemason for an unspecified period: see R v Watson [30]. He last worked full time in 2016 and then took some casual jobs.

56. Mr Watson is married to a woman he met at age 16. They have been married for about four years and have three children, aged 11, 13 and 16. Mrs Watson has been very supportive and patient with her husband's criminality and drug use, despite the difficult time that this must have caused. She has described Mr Watson as an attentive and loving father (R v Watson at [29]), but does not want him interacting with the children while he is using drugs and going in and out of custody.

57. His behaviour in the past has had a significant impact on his family: R v Watson at [31]. His wife is reported to have said, however, that she will give Mr Watson “one last chance to prove that he can live a life without illicit drug use and criminal behaviour”. That, of course, is likely to be a significant motivator for Mr Watson to reform.

58. Mrs Watson is currently living with her children in a property that she rents from her sister. The home has been assessed by ACT Corrective Services as being suitable for Mr Watson were he to be subject to a Treatment Order. It is well maintained and in a low crime area.

59. Mr Watson has no physical or mental health issues currently. He has recently experienced some back pain which he said was from “sitting too much” but he is not currently taking any medication. He has had some bouts of depression and anxiety in the past and once experienced visual hallucinations due to substance use about a year ago.

60. Mr Watson recalled first drinking alcohol at the age of 13 and drank regularly for the next 3 or 4 years, sharing a bottle of whiskey on weekends with 3 or 4 others, consuming the bottle within a few hours. He ceased this drinking pattern when he was 18 years old. He does not consider alcohol a current problem, though he did drink regularly after work when he was working, but last drank alcohol about two years ago.

61. At age 15, he commenced smoking cannabis, but has not smoked at home since he was 16 years old. He has now stopped using it as “he did not like being stoned” and last smoked about 20 years ago.

62. He commenced using methylamphetamine when he was 18 and increased his use until, by 2016, he was using it regularly, either smoking or injecting a few points each day. He did use while in custody because “it was there”, though he seemed to tell a different version of his last use to the author of the Suitability Assessments.

63. He has tried other illicit drugs: amphetamines during his late teens, quite regularly but only for a few years, and MDMA/Ecstasy and cocaine a few times around the same time. He has tried heroin a handful of times, but has not continued to consume it as he did not like it.

64. Mr Watson has had some quite limited alcohol and other drug treatment. He engaged with SMART Recovery, a free self-help mutual aid programme for people in the community to get together and change problematic or addictive behaviours. He did this under direction of ACT Corrective Services when he was subject to a probation condition of a Good Behaviour Order. He also attended a drink driving course. He appears to have undertaken some further SMART Recovery programs while in custody.

65. It appears that he was, however, accepted to have a severe substance abuse disorder at the time of his offending and stated that that was the primary cause of the offending in this case.

66. Mr Watson has a long criminal history in both the ACT and South Australia. [Redacted for legal reasons]. In all, he has 38 offences on his record; however, all but 12 are related to driving. The most serious driving offences are aggravated dangerous driving (2 offences), drink driving (6 offences), and drug driving (1 offence).

67. Relevant to the present offending, he has six offences of driving whilst disqualified or suspended on his record. He has also committed two offences of possession of drugs for the purpose of sale or supply. He was dealt with for some violent offences: two aggravated assaults, the offences committed in 2016 and 2017, and a violence offence was committed prior in 2005. The seriousness of his offending has somewhat escalated. In 2020, he was sentenced for an offence of aggravated burglary: R v Watson.

68. Mr Watson has not always complied with orders granting him conditional liberty. Thus, in 2016 he was sentenced to a Good Behaviour Order on 9 November 2016 for driving whilst his driver licence was suspended, but he breached that Order in August 2017. He was then convicted on 25 August 2017 of possessing drugs for sale or supply and sentenced to imprisonment, suspended with a Good Behaviour Order which he also breached on 17 December 2018. Upon re-sentencing, a further Good Behaviour Order was made but, again, he breached that in 2019.

69. He was sentenced to a range of offences on 31 August 2017, which he breached in 2019 and, while no further action was taken in respect of some of the orders that he had breached, on re-sentencing for others he was sentenced to six months imprisonment suspended with another Good Behaviour Order. He further breached this Order in 2019 when he committed further offences. In 2018, he also breached a Good Behaviour Order made for another offence of driving whilst disqualified.

70. Of course, the conviction that must be entered today for the current offences will constitute a breach of the Good Behaviour Order made by Loukas-Karlsson J on 7 February 2020.

71. This is not a good record of compliance with community based orders, though ACT Corrective Services advise that his engagement with the supervising condition of the most recent Good Behaviour Order was “unremarkable with both positive and negative case notes recorded”. It was added that “it appeared that he had lacked stable accommodation and was using illicit drugs at that time”. It was noted, however, that he now “appears to have more protective factors than previous occasions”, namely, “stable accommodation, the support of his wife if granted a DATO [Treatment Order] and intensive support and monitoring that he requires were he subject to a Treatment Order”.

72. Mr Watson was co-operative in the preparation of the Suitability Assessments. Given the expected comprehensive nature of them, it was not necessary for a Pre-Sentence Report to be ordered, though there were two Pre-Sentence Reports tendered in the earlier proceedings: R v Watson at [27] and [38]. Mr Watson did not request a referral to Restorative Justice. He is entirely entitled to take that stance and it will not be held against him.

73. It is of concern that he advised that “he did not believe that he had anything to apologise for”. Whatever the loss that Mr Batcheldor may have suffered by the loss of his coins, and that is entirely unproven, the behaviour of Mr Watson in supporting the violence committed on the victim and helping to steal the victim's property is entirely unacceptable behaviour and deserving of severe punishment. It is something to apologise for.

Conditional liberty

74. As noted earlier (at [70]) Mr Watson was subject to a Good Behaviour Order at the time of his current offending and thus he committed them while at conditional liberty. As pointed out in R v Mathews [2020] ACTSC 364 at [36], this has two aspects: the breach of the Order as affecting the current sentence and then sentencing for the breach itself.

75. For the first matter, it is clear that committing an offence while on conditional liberty is an aggravating factor which is relevant to the sentence to be imposed for the current offence: see Auld v The Queen [2013] ACTCA 21 at [9]. It is, however, important that such sentence, insofar as it is increased because of this aggravating factor, does not result in double punishment for the original crime: Kelly v Ashby [2016] ACTSC 346; 73 MVR 360 at 367; [61].

76. A breach is a betrayal of the trust that a court grants to an offender to be in the community and is often made for rehabilitation. Although this was not expressed, it appears this may have been the intention in Mr Watson’s case: see R v Watson at [82]- [83]. It has, however, been unsuccessful in progressing his rehabilitation. On the other hand, there is no evidence of any specific measures put in place or recommended by those supervising Mr Watson, other than those mentioned above (at [71]-[72]).

77. The second matter is that the breach itself is required to be addressed. As noted above (at [6]), although I did not impose it, I now am required to deal with it. There are a range of options set out in s 108 of the Crimes (Sentence Administration) Act 2005 (ACT). The options include taking no further action, ordering payment of the security under the Order or amending the Order. There is, in this case, no such security. The Court can then cancel the Order and can also re-sentence Mr Watson. To consider the appropriate option, it is necessary to have information about the offence for which the Good Behaviour Order was imposed.

78. The various documents before the learned sentencing judge were provided, without objection or challenge to their contents, but most importantly a copy of R v Watson was provided, which constituted her Honour’s sentencing remarks. It is not necessary to set them out here.

79. The facts were disturbingly similar to the facts in this case. In brief, Mr Watson went with others to the victim's house and, through a ruse, they were allowed to enter and then threatened the victim and some of the entrants inflicted actual violence on him to the extent of breaking his leg. Mr Watson and others then stole some property from the victim.

Sentencing practice

80. As noted above (at [33]), s 33(1)(za) of the Sentencing Act requires a sentencing court to have regard to current sentencing practice. In part, this has been addressed in considering the offences and the approach the courts take to assessing the seriousness of the offence by identifying aggravating and mitigating factors, as have been relevantly identified.

81. Another source of current sentencing practice are the comparable cases that counsel can submit for the Court to consider. As Gageler and Gaudron JJ explain in Director of Public Prosecutions (Vic) v Dalgliesh (Pseudonym) [2017] HCA 41; 262 CLR 428 at 454; [83]:

Examination of sentences imposed in comparable cases may inform the task of sentencing but such examination goes beyond its rationale when it is used to fix boundaries that, as a matter of practical reality, bind the court.

82. In this case, counsel for the Crown referred to three decisions. In the first, R v Hodge [2015] ACTSC 214, the offender and co-offenders were charged with the more serious offence of aggravated robbery. The three went to a home in Kambah and asked to buy cannabis. When the victim said he did not have any, an altercation developed during which they broke the front screen door to the premises and entered. The offenders continued to demand money and drugs before taking the keys to the victim's motor bike and his wallet. The victim ran from the house, attempting to call the police, but was restrained, hit on the back of the head and, when he fell to the ground, was hit several times while he was on the ground. Mr Hodge was 27 years old with a serious criminal record, including convictions for a number of prior aggravated burglaries and an aggravated robbery. He had a disadvantaged childhood, limited education and a significant polysubstance use history and psychological problems. He pleaded guilty at an early stage attracting a discount of 40%. He was sentenced to two years and eight months imprisonment for the sentence, reduced from four years and six months by the discount for his plea of guilty. It was, as submitted by Mr Archer, a more serious case than that committed by Mr Watson.

83. A more comparable decision, though still involving the more serious offence, may have been the sentence for the co-offender in that case: see R v Murray [2016] ACTSC 173. Ms Murray carried the knife to the robbery referred to above involving Mr Hodge, but did not inflict any actual violence on the victim. She had a minimal criminal history and problems in childhood. She was sentenced to two years and three months imprisonment. It was somewhat more serious because of possession of the knife and because it was a more serious offence.

84. The third decision was R v Hawkins [2020] ACTSC 29, where Mr Hawkins, as a co-offender, entered a home by means of a ruse and then threatened the victim with a large knife, asking for money. Mr Hawkins hit the victim twice on the head with butt of the knife. A friend of the victim who was there tried to intervene, but was also struck in the head by Mr Hawkins with the knife causing a deep laceration. Mr Hawkins had a disadvantaged childhood and substantial criminal history, including robbery. He entered a late plea. He was sentenced to 37 months imprisonment. It was, again, a somewhat more serious offence than this case.

85. Sentencing statistics must be treated with caution. This issue is addressed in R v Mathews at [46]-[47], especially relying on what was said in R v Horn [2017] ACTSC 36 of [51]-[53]. Nevertheless, statistics can inform sentencing: Hili v The Queen [2010] HCA 45; 242 CLR 520 at 537; [54]-[55].

86. The ACT Sentencing Database, however, only records 12 sentences for robbery, half of which were the subject of partially suspended sentences. A third of the sentences were of full time imprisonment and the remainder wholly suspended. Aggregating all the sentences which were for imprisonment, though only some served full time, the length of the sentences ranged from 12 months to 5 and a half years (one sentence), the majority being of 3 years, but of all the rest, half of them were of less than 3 years. The sample was small, only 12 sentences in all, but it is information, though of limited value, but not of no value at all.

Consideration

87. When approaching the difficult task of sentencing an offender, the court has many matters to take into account set out, inter alia, in s 33 of the Sentencing Act. To help in this task, the legislature has set out, in s 7 of the Sentencing Act, the purposes of sentencing which the Court should consider and which can help guide the considerations that, through a process of instinctive synthesis, lead to a just and appropriate sentence.

88. In this case, the offence was very serious, so punishment is an important consideration and because of the harm to the community, so is general deterrence. Mr Watson is embarking on much more serious offending than he has committed before, so specific deterrence is important and he must be held accountable for his actions.

89. This may still permit rehabilitation to factor in the consideration, as Mr Watson does express a willingness to engage in rehabilitation, though he has not yet been able to take the initiative on his own. The opportunity to take such a step is important so as to stem the surge towards more serious offending.

90. The sentence must also denounce his conduct which cannot be tolerated in a civilised society, and thus, too, the harm done to the victim must be recognised. As noted above (at [42] and [44]) no a Victim Impact Statement was provided, nor was a medical report on the injuries suffered by the victim, though there was some general comments following the medical examination. As was said in R v Solomon [2005] NSWCCA 158; 153 A Crim R 32 at 37; [19], “the court assumes, without evidence, that the victim of a robbery would be affected both physically and psychologically from the commission of the offence”.

91. The sentence must be approached with these matters clearly in mind. As found, the facts of the events which have constituted the offence; the nature of the offence and their seriousness specified by the legislature and as actually committed; the personal circumstances of Mr Watson as has been found; the age at which he became a consumer of illicit drugs and the depth of his dependence; and his criminal record will all be taken into account.

92. Mr Watson pleaded guilty, but not at an early stage of the proceedings. It was a negotiated plea, which involved the Crown not proceeding on a more serious offence and other offences. It has been suggested that this justifies a small, or no discount: see R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 at 114; [56]. In that case, however, despite the Crown in that case presenting a fresh Indictment with only 6 counts rather than the 11 in the original Indictment following the committal, the Court considered that a not inconsiderable discount should be allowed: see R v Toumo'ua at 117-8; [82]. Thus, the Court held that the fact of the plea being entered soon after the negotiations had resolved the counts did not render it inappropriate to considering it being an early plea for the purposes of the discount.

93. Subsequently, in R v Nicholas; R v Palmer [2019] ACTCA 36 at [52], it was held that:

Ordinarily, a discount of 15 to 20 per cent is allowed for a plea entered before or in connection with criminal case conferencing and prior to the setting of the trial date. Absent unusual circumstances, 20 per cent would be the upper limit in relation to a plea of guilty entered at that stage.

94. In this case, the plea was similarly entered at the Criminal Case Conference following negotiations or immediately after and justifies a sentence at the lower end of this range, even though the Crown case was strong but by no means overwhelming.

95. Given Mr Watson's expressed views about Restorative Justice, it is difficult to consider that the plea of guilty was evidence of genuine remorse which includes some insight into the harm done to the victim: see Fusimalohi v The Queen [2012] ACTCA 49 at [31]-[32]. As mentioned above (at [64] and [72]), however, the Court is satisfied also that Mr Watson did seek rehabilitation and co-operated with the preparation of the Suitability Assessments.

96. There are two offences for which Mr Watson must be sentenced. While they are part of the one course of conduct and should attract a degree of concurrency (R v Di Bitonto [2016] ACTSC 280 at [93]) and he must not be punished twice, the sentences, nevertheless, must mark the seriousness of both offences. Each offence must be sentenced separately to an appropriate sentence that is just and adequate, leaving no perception that multiple offending can be committed with impunity.

97. Then totality of the sentences must be considered to ensure that they are adequate to meet the total criminality but no longer than that, and that the sentence leaves open the realistic prospect of reform and hope for Mr Watson to take an effective part in the community and with his family on release.

98. No other sentence than a sentence of imprisonment is appropriate for the total criminality committed by Mr Watson for these offences: s 10 of the Sentencing Act.

99. The 186 days that Mr Watson has spent in custody on these charges will be taken into account by backdating the sentence under s 63 of the Sentencing Act.

100. The conviction that will be entered for the offences of driving whilst disqualified as a special offender, under s 32(5) of the Road Transport (Driver Licensing) Act 1999 (ACT), automatically results in a disqualification of two years of Mr Watson's driver licence or, if so ordered, a longer period. It is not proposed to make a longer order, notwithstanding the serious continued breach of similar provisions.

101. Mr Watson was subject to a two year disqualification period from another repeated offence of driving whilst disqualified on 28 March 2018, imposed on 24 October 2018. For further driving offences committed on 27 February 2019, Mr Watson was subject to disqualification periods for two years for repeated driving whilst disqualified and a one year disqualification for aggravated driving, imposed on 28 October 2019 (as noted above at [25]). Under s 69 of the Road Transport (General) Act 1999 (ACT), the disqualifications are ordinarily cumulative, but in this case the two disqualifications were ordered to be served concurrently. Then, on 2 March 2021, he was again convicted of driving whilst disqualified as a repeat offender and again automatically disqualified for two years. This, of course, will be an extra two years, but the further conviction of drug driving, also attracting a disqualification for two years, will be ordered to be served concurrently. Accordingly, Mr Watson is disqualified from holding or obtaining a driver licence until 23 October 2024.

102. It is appropriate to moderate the effect of further disqualifications for the following reason. On this occasion, he has not been convicted of any offence relating to the manner of his driving such as to put members of the public at risk. Further, he is apparently more determined this time to address his current offending behaviour and he has perhaps a final opportunity still to have the support of his wife and a chance to reconnect with his children. It is likely that his access to employment will assist him in maintaining a pro-social life and that will be facilitated by having a driver licence. He should be able to look to 2025 as the year he can regain his driver licence and this can be part of an appropriate order.

Sentence

[His Honour then spoke directly to the offender]

103. Mr Watson, please stand.

104. The Court orders the following:

(1) You are convicted of aiding and abetting Anthony Lachlan Batcheldor to commit robbery on 13 June 2020 and sentenced to two years and six months imprisonment, to commence on 1 November 2020 and expire on 30 April 2023. Had you not pleaded guilty, you would have been sentenced you to three years imprisonment.

(2) You are convicted of driving whilst disqualified as a repeat offender on 13 June 2020 and sentenced to six months imprisonment, to commence on 28 February 2023 and expire on 27 August 2023. That is to be cumulative as to four months on the sentence for aiding and abetting a robbery. Had you not pleaded guilty, you would have sentenced you to seven months imprisonment.

(3) The automatic disqualification from holding or obtaining a driver licence for two years be imposed for the offence of driving whilst disqualified as a repeat offender under s 69 of the Road Transport (General) Act 1999 (ACT), is directed to commence on 1 January 2024 and expire on 31 December 2025. (4) The Good Behaviour Order of 7 February 2020 has been breached. That Good Behaviour Order is cancelled and the conviction for aggravated burglary on 10 January 2029 is confirmed. The balance of the sentence of imprisonment, namely ten months, be imposed from 28 August 2023 and ending on 27 June 2024.

105. Mr Watson, please be seated.

Drug and Alcohol Treatment Order application

106. As noted above (at [5]), Mr Watson has requested that he be considered for a Treatment Order. That will now be considered.

107. In the first place, Mr Watson has been sentenced to two years and six months imprisonment for the offence of aiding and abetting a robbery, which is more than one year and less than four years - the respective minimum and maximum penalty range permissible for a Treatment Order under s 12A of the Sentencing Act. The total sentence, however, is 3 years and 10 months, still below the maximum permissible sentence for eligibility for a Treatment Order.

108. The Court is satisfied that Mr Watson is not subject to another sentencing order within the meaning of s 12A of the Sentencing Act. It is further satisfied that, provided he complies with the obligations on him under a Treatment Order, he will be resident in Canberra for the next two years. In addition, it is proved that that Mr Watson is dependent on illicit drugs, especially methamphetamine, and that his dependency on illicit drugs substantially contributed to his commission of the current offences.

109. Accordingly, Mr Watson is eligible to be the subject of a Treatment Order.

110. I have carefully read the Suitability Assessments referred to earlier (at [8]). They have been thoughtfully and thoroughly prepared and of great assistance in the task of both sentencing Mr Watson and determining whether it is appropriate to make a Treatment Order. The recommendations made has also been carefully considered, namely in both cases that Mr Watson is suitable to be subject to a Treatment Order.

111. The Case Plan prepared by Canberra Health Services has also been carefully considered. In all the circumstances, it is appropriate, given the support and restrictions that will be available to and placed on Mr Watson in the accommodation with his wife. It is accepted that, in these circumstances and as recommended by ACT Corrective Services, a curfew would be an appropriate part of the Treatment Order. That would be part of the considerations that addresses the Crown's hesitancy about the making of a Treatment Order.

112. The Crown's concerns are entirely reasonable and need to be addressed. They principally revolve around whether, in the context of Mr Watson's behaviour following being sentenced by Loukas-Karlsson J, he would be able to comply with a Treatment Order. The Crown pointed out that Mr Watson had re-offended shortly after being released from custody. That is obviously a concern. On the other hand, persons who are dependent on alcohol or illicit drugs are, by the nature of the effect of their dependency, likely to be recidivists until they come to terms with that dependency and are able to manage it. This is further exacerbated by the fact that the inevitable lifestyle of such persons and their need to engage with antisocial people in order to get the drugs they crave, are likely to be induced into further criminal behaviour by their associates. Here, clearly, Mr Batcheldor was the motivating force behind the most serious crime.

113. Next, the Crown submitted that there was no evidence of Mr Watson engaging in any rehabilitation. That submission must be accepted as generally correct, although it is said that he has had some engagement. Of course, an offender does have an obligation to try and take the necessary steps to avoid further offending and if that requires rehabilitation, then to undertake it. It is, however, a counsel of perfection to expect that this will easily happen. Indeed, the very nature of Drug Courts, of which this Drug and Alcohol Sentencing List is an example, is that external guidance, support and supervision is usually required to assist offenders with a serious drug dependency to start and then persevere with rehabilitation.

114. In this case, there was no evidence of any specific steps taken along these lines. No rehabilitation condition (pt 6.2 of the Sentencing Act) was included in the Good Behaviour Order. This is understandable, since such conditions are not easy to impose and sentencing judges are rarely given the necessary assistance to craft them appropriately.

115. No evidence was available of any direction given by the person supervising Mr Watson, other than as indicated above (at [71]). That did not include, for example, entry into a residential rehabilitation or other serious rehabilitation engagement. Indeed, the sentencing remarks (R v Watson) did not make significant reference to rehabilitation, save for the supervision under the Good Behaviour Order and there was no reference to rehabilitation in that probation condition. There was a reference in R v Watson at [31] that Throughcare could provide some assistance, but that was directed to housing. Throughcare is a voluntary program of ACT Corrective Services that aims to promote and contribute to community safety through co-ordinating community resources to support eligible detainees leaving custody.

116. It must be accepted that the protective factors said to be available had, to some extent, been previously available at the time of Mr Watson’s last sentence. With Mr Watson’s continuing drug use, that would be more limited, for his wife made it clear that she was not prepared to have him home if he continued to use drugs. He did have work offered at the time, but his history shows that this is not enough by itself to, and previously did not, stop his drug use.

117. These matters, raised in R v Watson, were indicative of a rehabilitation thrust of the sentence, but it was rather implicit than expressed and it was not made clear that these were specific targets or actions by which Mr Watson's rehabilitation could be assessed and supervised.

118. The breach of the Good Behaviour Order imposed in R v Watson, however, is serious and has been dealt with accordingly.

119. In the case of a Treatment Order, there would be specific targets and actions to meet and undertake, as well as the sanction of a very significant sentence if he fails in his commitment to the Treatment Order. Mr Watson's record justifies no leniency, though the offences, until recently, are not in the very serious category but are now more and more, by their commission, escalating; an indication that a different approach is urgently required.

120. Thus, while the concerns of the Crown are not to be lightly dismissed, they actually point, in some ways, towards a different approach and a definite need for more intensive treatment and supervision, such as that which is available under a treatment order.

121. It is accepted that there is no guarantee that Mr Watson will succeed and these concerns may turn out to be justified from that perspective. His previous history of breaches is one of great concern but those breaches, again, occurred in circumstances where, in my view, a Treatment Order may be of assistance to addressing the underlying causes.

122. There are strong reasons why a Treatment Order should at least be considered. The concerns are, however, not such that such an effort is contraindicated. Mr Watson is showing some initial commitment, whereas previously there was no evidence of progress in custody, and he has stated now that he needs to address his behaviour as causal of his drug dependency.

123. Mr Watson has given informed consent to the making of a Treatment Order, that he has been given a clear explanation of the Treatment Order sufficient for that consent and had an opportunity to ask any questions he wishes to ask and have any questions answered which he can understand.

124. No indications of unsuitability for a Treatment Order have been identified in the case of Mr Watson, as set out in Table 46K of the Sentencing Act.

125. Finally, the sentence of imprisonment imposed on Mr Watson commenced prior to today, so that, were a Treatment Order to be made, the sentence would have to be partially suspended from today because he has served part of that sentence in imprisonment already. That is, for the reasons set out in R v Crawford (No 1) [2020] ACTSC 245 at [91]-[111], not something that precludes the making of a Treatment Order.

Drug and Alcohol Treatment Order

[His Honour then spoke directly to the offender again]

126. Mr Watson, please stand again.

127. The Court further orders:

(5) A Drug and Alcohol Treatment Order be made under s 12A of the Crimes (Sentencing) Act 2005 (ACT) in respect of Joshua Darcy Watson for two years, from 6 May 2021 to 5 May 2023, for the offence of aiding and abetting a robbery, the primary offence.

(6) That order be extended to the offences of driving whilst disqualified as a repeat offender and aggravated burglary, which are associated offences for the primary offence.

(7) The convictions for the primary offence and the associated offences, which have been entered, and the sentences, which have been imposed for each of them, be hereby incorporated into the Drug and Alcohol Treatment Order and constitute the Custodial Part of the order. (8) The total sentence of 43 months and 27 days, being the sentences for the primary offence and the associated offences, be suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today until 27 June 2024.

(9) Mr Watson be required to sign an undertaking to comply with the Offender’s Good Behaviour Obligations under s 85 of the Crimes (Sentencing) Administration Act 2005 (ACT) from 6 May 2023 to 27 June 2024, with a condition to accept supervision of the Commissioner of ACT Corrective Services or his delegate for that period or such lesser period as the person supervising him considers appropriate, and obey all reasonable directions of the person supervising him, including but not limited to attending urinalysis, counselling or rehabilitation or other programs.

(10) For the Treatment and Supervision Part of the Drug and Alcohol Treatment Order, the core conditions set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) are included in the Order and Mr Watson be required to comply with the terms of the Order, including such case management and rehabilitation programs as may be required by the Treatment Order Team or by order of the Court, including as to counselling, urinalysis, medical treatment or such other treatment or programs as may be required from time to time.

(11) In addition, Mr Watson be required to be at his place of residence, between the hours of 8:00 pm each day and 7:00 am the next day and present himself to the door of that residence on request during that time by any police officer.

(12) Mr Watson be directed to comply with any directions that the Court may make from time to time about attendance at Court, in person or by electronic means.

(13) Mr Watson be required to sign a sealed copy of this order before you leave the precincts of this court.

(14) Mr Watson be directed to attend Court tomorrow, 7 May 2021, at 11:30 am.

128. Mr Watson, that is the formal part of the proceedings. I have explained why I have sentenced you to nearly four years imprisonment and why I have made a Treatment Order.

129. That Treatment Order is your opportunity to make good on the situation you are now in to get your drug dependency under control, to turn away from criminality, to reconnect with your wife, to get back into useful employment, which is valuable to many members in the community and, of course, is valuable to you and your situation.

130. The Treatment Order will impose conditions on you and burdens that you will have to accept and you will have to put your arm to the wheel and work on it.

131. You will see me every week for some months while you are going through the initial stages. You will also have been explained by the Alcohol and Drug Services workers what your obligations are. You need to be quite clear about those, because if you breach them or if you fail to comply then there are sanctions available, including sending you back to prison for short or longer periods of time.

132. This is an opportunity. If you take it then there are people who will support you. This Court and members of the Treatment Team will support you, because our objective is for you to manage the problems that have found you committing offences. You will also, I believe, be supported by your wife and if you really are devoted to her and the children, then this is an opportunity to repair that relationship, get it back on track and work appropriately for it.

133. There are a couple of things you need to really understand.

134. The first is that this is not an easy road. You have had a long and entrenched dependency and that will take effort and time to manage. During that time, there will be bumps along the road. There will be difficulties. If you address those you will come out stronger. If you find they are overwhelming, then the important thing is not to run away from them, because that will only end you back in the Alexander Maconochie Centre again and again and again on a revolving door basis. Come and talk to your case workers, your case managers, your counsellors. Talk to the Court. As I said, you will see me every week. I am not all powerful but, if there are difficulties, we can look at those and see how they can be addressed and it is amazing what we can do.

135. I do not say that, if you slip up, you will not require sanctions from time to time - you will. If you really cannot comply and hack it, there will be more severe sanctions and likely a cancellation of the Order altogether, sending you back to prison for most of the rest of the sentence of imprisonment that I have imposed. This is really important to remember.

136. The second important thing to understand is the need to be honest. You will only get through this, become abstinent and a useful member of the community, if you are honest. First of all, obviously honest with yourself, but also with your counsellors and others engaging in this journey with you.

137. A number of other people on this road have been able to make it. Some have fallen by the wayside. I hope you will not fall by the wayside. I hope I will not see you tomorrow with further charges because you are out of prison.

138. At least show me, your family, your lawyers and your case workers that you are committed to this and you are really going to try. That will be good for you most of all, but it will also be good obviously for the community, for your family and for this Court.

139. I hope you will take this opportunity. If you do a good life - you have had a good life. Ten years as a stonemason - think of what you have left in the community, a recognition of your skill and your ability. You can get back to that if you really want to and we will help you, if we can.

140. So, I wish you good luck. I hope that it works out for you. We will monitor that on the way through. Hopefully we will have some good times, not too many bad times, but I want to see you tomorrow. Come at 11.00 am and you will see one of the people who have graduated from this process and how he has made it. That will be the aim that I hope you will put before you and you will deliver for all those people supporting you.

141. You may be seated. I certify that the preceding one hundred and forty-one [141] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Acting Justice Refshauge.

Associate:

Date: 31 May 2022