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[2015] ACTSC 254
Supreme Court of the ACT
2015-08-13
Refshauge J
Original judgment source is linked above.
1. The Good Behaviour Order of 5 June 2014 be cancelled;
2. The conviction for the offence of burglary at Braddon on 21 May 2013 be confirmed;
3. Mr White be sentenced to fifteen months imprisonment to commence on 15 June 2014;
4. The conviction for theft on 21 May 2013 be confirmed;
5. Mr White be sentenced to nine months imprisonment, to commence on 15 June 2014, to be wholly concurrent with the sentence for the burglary;
6. The sentences be suspended for a period of 2 years;
7. Mr White be required to sign an undertaking to comply with the offenders' good behaviour obligations under the Crime (Sentence Administration) Act 2005 for a period of two years from 13 August 2015 with the following conditions:
a) A probation condition that he accept supervision by the Director-General or her delegate and that he obey all reasonable directions of the person supervising him, including as to counselling for unresolved trauma and any ongoing drug and alcohol treatment or counselling, for a period of two years or such shorter period as the person supervising him considers appropriate.
b) That he attend Canberra Hospital on 24 August 2015 for the purposes of undergoing detoxification and thereafter the Karralika Therapeutic Community on 31 August 2015 and admit himself to those programs of rehabilitation;
c) That, if he is not admitted to the Karralika Therapeutic Community Program or if, for any reason, he leaves or is discharged from the program before he completes it, he present himself, in person, as soon as possible and within 24 hours, to the Registrar of the ACT Supreme Court for a review of the Good Behaviour Order;
d) That he remain in the Karralika program until he completes it and obey all reasonable directions of the person in charge of that program and not terminate or absent himself from the program without prior permission of this Court;
e) That he consent to the person in charge of the program providing to the person supervising him any information about his progress as may be reasonably requested.
CRIMINAL LAW - Jurisdiction, practice and procedure - Sentencing - Resentencing - Breach of Good Behaviour Order - Further offending - Offender seeking rehabilitation
Crimes (Sentencing) Act 2005 (ACT); ss 7, 12, 33
EG v The Queen [2012] ACTCA 17
Guy v Anderson [2013] ACTSC 5
R v White [2014] ACTSC 158
Saga v Reid [2010] ACTSC 59
Legal Aid ACT (Accused)
1. On 21 May 2013 Matthew Peter White smashed the window of a used car business in Braddon, ACT, entered the premises and stole a television set and aerial. He was arrested and charged with burglary and theft. He pleaded guilty in the Magistrates Court and was committed to this Court for sentence. He appeared before me on 5 June 2014 when I sentenced him to a total term of imprisonment for 15 months to commence on 3 August 2013, to take into account pre-sentence custody. I suspended the sentence on that day and, as required under s 12 of the Crimes (Sentencing) Act 2005 (ACT), made a Good Behaviour Order for two years with a probation condition: see R v White [2014] ACTSC 158.
2. On 5 March 2015 Mr White was convicted in the Magistrates Court of an offence of minor theft committed on 4 November 2014 and of possessing cannabis on 5 November 2014. He pleaded guilty and was convicted of both offences. He was sentenced to imprisonment for two months for the minor theft offence and fined $110 for the possession of cannabis but given no time to pay. That meant that, under s 116ZP of the Crimes (Sentence Administration) Act 2005 (ACT), his fine liability was reduced by service of the first day of his term of imprisonment.
3. The conviction for minor theft offence constituted a breach of the Good Behaviour Order I made in June 2014. Mr White admitted that breach. As a result, he has appeared before me to be dealt with for the breach of the Good Behaviour Order. As the Good Behaviour Order was made when I suspended the sentence of imprisonment, s 110 of the Crimes (Sentence Administration) Act applies and I must cancel the Good Behaviour Order and either impose the suspended sentence that I imposed for the offence or re-sentence Mr White.
4. When he appeared for sentence today, Mr White's counsel very properly mentioned to me matters of which I had not previously been aware as follows. Mr White again came before the Magistrates Court on 16 July 2015 charged with another offence of minor theft committed on 1 March 2015, that is prior to him being sentenced for the other minor theft offence, and also an offence of possessing a weapon, namely, a sharpened axe, without reasonable excuse in a public place on 27 September 2014. It is not clear why the latter offence took so long to be dealt with. The summons was issued on 19 November 2014 but appears to have been first before the court on 8 May 2015.
5. In any event, Mr White was convicted of both offences and sentenced on each charge to two months' imprisonment, both fully suspended and with a Good Behaviour Order for two years, including a probation condition requiring Mr White to obey reasonable directions of the probation officer appointed for him especially as to residential rehabilitation. These convictions also constituted a breach of the Good Behaviour Order I had made in June 2014. Again, Mr White admitted the breach.
6. The facts of the original offence are set out in R v White and are, in brief, that in the early hours of the morning of 21 May 2013, Mr White used a metal bollard to smash a glass door in the commercial premises. It activated an alarm which drew the attention of a cyclist riding by and who called the police. Mr White took a black 54centimetre television and Radio Shack aerial and left the premises. The cyclist followed Mr White and police later located and arrested him.
7. On 27 September 2014, Mr White was begging in Civic when he was approached by police. They spoke to him and inspected a duffel bag that he had with him. When asked what was in it, he said there was an axe in it. He was cautioned and then asked why he had the axe. He said it was for his protection. He said that he had been bashed a number of times since he had been released from prison. The axe was seized and he was charged.
8. On 4 November 2014, Mr White was browsing in the shop of an optometrist in Civic when he picked up a pair of sunglasses valued at $250. He hid the sunglasses in the left pocket of his pants, continued to browse through the shop and then left without paying for the sunglasses. Police attended and viewed closed-circuit television which identified a person taking the sunglasses and leaving without paying. The person had a distinctive tattoo on the left side of his neck and police were able, as a result, to identify Mr White. He was arrested the next day and searched. During the search, a clip-seal bag containing green vegetable matter, later identified as cannabis, was located in his clothing. He was then charged with the relevant offences.
9. On 1 March 2015, Mr White and another male entered a clothing store in the Canberra Centre and Mr White walked to the rack at the back of the store containing leather jackets. That rack was near to the change room. Mr White picked up two leather jackets and took them into the change room. The other male then attempted to distract the staff member. Mr White left the change room and hung one leather jacket on the rack. He then attempted to leave the store, although he was approached by the staff member. It appears that he had stuffed the other jacket into his trousers.
10. He did leave the store, but this activated the alarm and he was approached by a security guard. He was later approached by police, after he had been identified by a staff member, and was arrested. The jacket was valued at $1499.
12. I have set out in R v White Mr White's objective circumstances. I do not need to repeat them in full. I shall summarise those matters and provide an update based on the material I received on resentencing: namely, a Pre-Sentence Report, a report of the Court Alcohol and Drug Assessment Service (CADAS), a letter from the St Vincent de Paul Society, letters from the Karralika Therapeutic Community, the Pre-Sentence and CADAS reports from the hearing in the Magistrates Court and Mr White's criminal record.
13. Mr White is now 35 years old. He and his family, including a brother and sister, moved to Canberra when he was 12 and he was raised in a good family environment with supportive relationships. He was, however, sexually abused in a nasty and violent incident when he was 14, which obviously traumatised him. He did not mention this until many years later. He completed year 12 at school as an average student and gained employment in various unskilled jobs. He has not, however, been consistently employed and has now been unemployed for some years. He has been in receipt of a disability support pension and has few friends who are not drug users or offenders.
14. He commenced using alcohol and cannabis when he was 15. While he is no longer a regular user of alcohol, he did become a regular user of cannabis, though he has recently reduced his use of cannabis also. He has also used other drugs, though his drug of choice is heroin and he injected it regularly, twice a week, using about a quarter of a gram, $80, weekly. He is currently prescribed Valium on a Valium contract with his general practitioner and only takes it as prescribed. He is also prescribed medication to treat depression and anxiety.
15. Mr White completed a residential treatment for drug addiction in 2005 but it was not particularly effective. More recently, he completed an eight-week residential treatment program with Arcadia House and managed to remain abstinent for about four months thereafter. He has had other alcohol and drug treatment and counselling, to which I will later refer. He has been diagnosed with a post-traumatic stress disorder and had counselling for his depression and anxiety, as well as the medication to which I have already referred.
16. He has had intermittent contact with Mental Health Services since 2001 but has not attended for mental health assistance since November 2014. He has, as noted above (at [14]), made contact with his general practitioner and this seems to be managing his mental health situation satisfactorily.
17. Mr White has a lengthy criminal history with 60 offences on his record. The majority are dishonesty offences, but the majority of those are minor theft. As I noted in R v White at [24]:
Whilst this takes him out of the usual run of dishonesty offenders, it is still a very significant attack on the right of people to retain their own property for which they have often worked hard.
18. He has committed five earlier offences of burglary but they were committed many years ago on the one day and, while they deny him the lenience that a crime-free record would provide, the circumstances of their commission does not mean that he is beyond rehabilitation or that it is inappropriate to extend that to him; see EG v The Queen [2012] ACTCA 17 at [10]- [11].
19. Mr White appears to have spent two and a half years in gaol in the last four years. He has, however, recognised the need for rehabilitation and taken some steps in that direction.
20. When he appeared before me, Mr White had completed some residential drug rehabilitation in 2005 and 2010, to which I have referred above (at [15]). It had limited success. After he was arrested in 2013 for the offence for which I dealt with him, he remained in custody but made enquiries about rehabilitation. He was assessed as suitable for admission to Canberra Recovery Services but no bed was then available.
21. He continued to investigate rehabilitation options and was accepted into the Orana Haven Drug and Alcohol Rehabilitation Program. He completed the 90-day program and received a positive report which I summarised in R v White (at [39]). In summary, the report suggested he had made genuine progress. He clearly needs, however, some longer term rehabilitation as he has not remained drug-free and particularly as his relationship with his current partner is, as described in the Pre-Sentence Report, "fraught with issues of addiction". This, it was said, had a significant impact on his ability to abstain from illicit substance abuse.
22. He and his partner have, however, been accepted into the Karralika Therapeutic Community, which does accept couples; it is one of the rare rehabilitation agencies that does so. Given his recognition that his experience at Orana Haven assisted him to achieve a period of abstinence, a longer term of residential treatment is likely to be more effective at this stage. His motivation has been increased because his partner gave birth in March this year to a baby daughter who has been taken into care, though currently in the care of Mr White's parents. He and his partner are not currently permitted to have any contact with their baby daughter and the desire to re-establish that contact is clearly a strong motivation for him to participate well in residential treatment.
23. He has persevered, as required, to avail himself of an opportunity to attend the Karralika Community. It is a pity that the availability of such facilities is so stretched, but there is now a bed available for him. In the circumstances, his perseverance and his admission to that facility is to his credit. I have said in Saga v Reid [2010] ACTSC 59, that drug addiction can take a number of failed attempts at rehabilitation before it is successful. I said (at [89]):
It is hard work and there is no short cut or quick fix. It can take some time, and some failures, before an offender addict manages to break through the barriers to achieve a more effective rehabilitation. The courts cannot, of course, sit back and allow attempts to be made without end. By the same token, past failures do not automatically deny an offender the opportunity for a further attempt. Ordinarily, there would have to be some rational basis for permitting it.
24. In all the circumstances, it seems to me there is a rational basis for accepting the option of permitting him to attend the Karralika Community given his fresh motivation and given the limited success that limited and short-term rehabilitation has had on Mr White in the past.
25. A suspended sentence with a Good Behaviour Order is an important sentencing option because it allows the court to mark its clear disapproval of the behaviour, meeting the need for general deterrence, with the opportunity for an offender to show that he or she is able to avoid further criminal behaviour and conduct himself or herself in a pro-social manner within the community.
26. Thus, as I pointed out in Saga v Reid at [99]-[101], the courts must take breaches of Good Behaviour Orders seriously, as failure to do so has the capacity to bring the process into disrepute and undermine the value and respect for the law which sentencing must encourage.
27. Nevertheless, as I pointed out in Guy v Anderson [2013] ACTSC 5 at [83]- [91], there is, in this jurisdiction, no default position that the period of imprisonment suspended should be imposed, although the court must seriously consider that, but in the context that the seriousness of the breach and the sentence or re-sentence must be proportionate to that seriousness. Clearly, the commission of further offences is more serious than non-offending breaches of Good Behaviour Orders. Nevertheless, minor theft offences are, whilst still offences of dishonesty, much less serious than the burglary and theft for which I had originally dealt with Mr White.
28. The offence of possessing cannabis is also a minor offence, and again much less serious. The offence of possessing a weapon is a more serious offence, although the explanation given by Mr White was one that obviously found favour with the Magistrates Court having regard to the sentence that was imposed. It is accepted that his continued use of heroin is a major contributor of his offending behaviour and that was not challenged by the Crown.
29. I must have regard to the purposes of sentencing as set out in s 7 of the Crimes (Sentencing) Act. In my view, there is some need for general deterrence because the integrity of the Good Behaviour Order sentencing option must be preserved.
30. There is also some need for specific deterrence, though more, in my view, as a motivator for rehabilitation. It seems to me that, given Mr White's recent success with rehabilitation and the particular circumstances now where there is an added motivation for him to succeed, it is appropriate to place more emphasis on rehabilitation. He has been appropriately, but severely, sentenced for the first offence which constituted the breach of the Good Behaviour Order and while there is no principle that says that, having completed the sentence of full-time custody for that offence, and now having been released, he should not be returned to custody if that is appropriate, it seems to me that this is much less desirable than, for example, the extension of a term of imprisonment then being served at the time of sentence to mark the seriousness of the breach.
31. I have regard to the matters which I am required to have regard to under s 33 of the Crimes (Sentencing) Act. So far as I know them, I have set them out above and in my earlier sentencing remarks. I note that Mr White has been assessed as not suitable for a community service work condition to a Good Behaviour Order or to serve a term of imprisonment by periodic detention because of his unaddressed drug habit.
32. While the fresh offences are not assumed to be trivial, they are not very serious offences and, as I have noted, they are certainly much less serious than the offences for which I convicted Mr White. The Crown has accepted that the community will be better served by his rehabilitation and does not oppose the opportunity for him to undertake the residential rehabilitation for which he has been given an opportunity at Karralika.
33. While the sentence I will impose will add to the term of a Good Behaviour Order, I do not propose to add any other penalty to that. It is accepted that time in a residential rehabilitation agency, with its inevitable deprivation of liberty, can be taken into account in sentencing.
35. I confirm the convictions for the burglary at Braddon on 21 May 2013 and the theft on that same day. I cancel the Good Behaviour Order made on 5 June 2014.
36. I resentence you as follows. For the burglary at Braddon, I sentence you to 15 months imprisonment to commence on 15 June 2014, to take into account pre-sentence custody.
37. For the theft, I sentence you to nine months imprisonment to commence on 15 June 2014. That is to be wholly concurrent with the burglary.
38. The sentences are suspended today for a period of two years.
39. I require you to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act for a period of two years with the following conditions:
40. Mr White, that is the formal order and I think probably you have been around long enough to know what that means, but basically I have re-sentenced you to the same term of imprisonment that you formerly had and I have taken into account the period of pre-sentence custody.
41. I have given you an opportunity, by suspending the sentence, to undertake the Karralika program, but it is a condition of the Good Behaviour Order that you go to, first, the Canberra Hospital for the detox and then into Karralika for their program and you complete that program.
42. If things go wrong, and as I have indicated in what I have said earlier, it is not easy, it is going to be hard, but you know the ropes, you have been to rehabilitation before, then the most important thing is to come back to the Court so that we can review the Good Behaviour Order. That is not to say I will cancel it and sentence you, there may be some options. If you do not take the opportunity of going through Karralika, and if it is too hard, then come back and we will see what else can be done. It may be that you serve the rest of your term and get it over and done with, there is not that much left of it in any event, or there may some other options, but it will definitely be imprisonment if you just take off and do not come back to the Court.
43. You are not a serial burglar. You have got a few burglaries on your record and they are held against you and will be held against you. You are mainly a pest. Minor thefts are a real drain on the community and they must be stamped out, there is no question about that.
44. If you are committed to your rehabilitation and if you are committed to your daughter, then the Court will support you and we have given you that opportunity and the Crown very properly did that also, but they, no doubt, will not be so enthusiastic if you do not put your shoulder to the wheel and give it your best shot and hopefully for the community and for you and for your daughter and for your partner, you get this addiction under control. It is a scourge that ruins many lives. Do not let it be your life, but more importantly, do not let it be your daughter's life that is ruined.
I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Refshauge.
R
White [2015] ACTSC 254