Glover v Saunders [2008] ACTSC 130 (18 November 2008)

Last Updated: 23 December 2008

JOSHUA ERIC GLOVER v TIMOTHY PAUL SAUNDERS

[2008] ACTSC 130 (18 November 2008)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 83 of 2008

Judge: Higgins CJ

Supreme Court of the ACT

Date: 18 November 2008

IN THE SUPREME COURT OF THE )

) No. SCA 83 of 2008

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: JOSHUA ERIC GLOVER

Appellant

AND: TIMOTHY PAUL SAUNDERS

Respondent

ORDER

Judge: Higgins CJ

Date: 18 November 2008

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal against sentence in respect of CC07/10878 be dismissed.

2. The appeal against sentence in respect of CC08/9438 be upheld to the following extent.

3. The sentence imposed be set aside.

4. In lieu thereof, a sentence of 6 months imprisonment be imposed but suspended from the completion of the term of the sentence in respect of CC07/10878, upon the appellant entering into a good behaviour order for a period of 18 months from that date, on terms that he be of good behaviour during that period; that he accept the supervision of the Chief Executive of Corrective Services over that period, and obey reasonable directions of the Chief Executive or such person or persons as the Chief Executive may from time to time appoint for the purpose; that he continue a treatment regime with the ACT Alcohol and Drug Program Opiate Treatment Service; that he, if assessed and found suitable, undertake and complete the ACT Corrective Services Cognitive Self Change Program.

1. Mr Glover has pleaded guilty to one count of minor theft (CC07/10878). He entered that plea before Magistrate Lalor who decided an appropriate sentence for that particular offence was 3 months’ imprisonment. Given Mr Glover’s history and given the fact that he, as his Honour rightly found, had been less than frank in his recounting of the circumstances in which he came to be found in possession of the stolen knives, that was, in my view, not inappropriate. Mr Glover, regrettably, had an unfortunate record for, amongst other things, shoplifting or minor theft. I presume it is shoplifting for the most part. So there was little to commend him to Magistrate Lalor for leniency in respect of that matter.

2. It is true that he had been undergoing treatment in respect of an opiate addiction. His partner, I note, was also a recovering addict, so I appreciate that things were not, and no doubt are not, easy for him. But, nevertheless, that is no licence to go out and help oneself to goods that are contained in stores. Having regard to all those circumstances, I think his Honour’s sentence in respect of that matter was entirely appropriate. I would not disturb it, and, insofar as the appeal relates to that sentence, I would dismiss it.

3. His Honour then went on to sentence the appellant in respect of a similar matter (CC08/9438) which had been dealt with by Magistrate Dingwall on 14 September 2007. His Honour had imposed for that a term of imprisonment for 6 months and suspended it on a good behaviour order for 12 months.

4. One notes that the further offence occurred, not very long after, on 2 November, so his Honour was certainly justified in finding, as was inevitable, that the allegation of breach of recognizance had been made out. His Honour was then faced with one of two options: to activate the suspended sentence simpliciter, which would have given a further 6 months of imprisonment to serve, or to re-sentence the offender. In my view, simply to impose one month was probably inadequate in the circumstances and I think this offender deserves a more lasting penalty than that.

5. For that reason, I set aside that sentence and impose in its stead a sentence of 6 months’ imprisonment, which was the period for which the suspended sentence was imposed, but would suspend that from the completion of the term of the sentence on the first matter, upon Mr Glover entering into a good behaviour order for a period of 18 months from that date, that he will be of good behaviour during that period and accept the supervision of the Chief Executive of Corrective Services over that period, and obey reasonable directions of the Chief Executive or such person or persons as the Chief Executive may from time to time appoint for the purpose.

6. In addition, he is to continue, as the pre-sentence reporter recommends, a treatment regime with the ACT Alcohol and Drug Program Opiate Treatment Service. He is, if assessed and found suitable, to undertake and complete the ACT Corrective Services Cognitive Self Change Program.

7. I simply say that if Mr Glover is to offend again, the likely response, apart from anything that would be imposed in respect of that, would be to activate that 6 month suspended sentence. If that occurs, it is no good him pointing to his partner and saying how her situation would be made worse if that were to happen. He will be the one that will have done that to her. Do you clearly understand that, Mr Glover?

8. MR GLOVER: Yes, your Honour, I understand that.

9. HIS HONOUR: You can not go around committing offences and say, “But my partner needs me.” You should think of that, and must think of that, before you even engage in any such behaviour, because it is you then that puts that hardship on your partner, nobody else. Is that clear?

10. MR GLOVER: Yes, your Honour.

11. HIS HONOUR: The appeal is upheld to that extent. Mr Glover, you will be taken upstairs to enter into that good behaviour order, which will take effect from the completion of your present imprisonment and, once you are released, you will need to report to Corrective Services to arrange for ongoing supervision.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 18 November 2008

Counsel for the appellant: Mr D Shillington

Solicitor for the appellant: Darryl Perkins Solicitors

Counsel for the respondent: Mr J Kellaway

Solicitor for the respondent: Director of Public Prosecutions for the ACT

Date of hearing: 18 November 2008

Date of judgment: 18 November 2008