The Queen(Crown) v Michael Paul Forrest (Accused)

• Jurisdiction: Australian Capital Territory
• Judge: Refshauge J
• Judgment Date: 06 March 2017
• Court: Supreme Court of ACT
• Docket Number: File Numbers: SCC 128 of 2016 SCC 129 of 2016
• Date: 06 March 2017

[2017] ACTSC 83

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Refshauge J

File Numbers: SCC 128 of 2016 SCC 129 of 2016

The Queen

(Crown)

and

Michael Paul Forrest

(Accused)

Representation:

Counsel

Ms T Skvortsova (Crown)

Mr J De Bruin (Accused)

Cases Cited:

Ashdown v The Queen[2011] VSCA 408

Beniamini v Craig[2017] ACTSC 30

Bowen v The Queen[2011] VSCA 67

Cicciarello v The Queen[2009] NSWCCA 272

Cotter v Corvisy[2008] ACTSC 64; 1 ACTLR 299

Davey v Childs[2011] ACTSC 129

Director of Public Prosecutions (Cth) v Watson[2016] VSCA 73

Douglas v The Queen (1995) 56 FCR 465

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

Johnson v The Queen[2016] NZCA 144

Kaye v Siddiq[2013] ACTSC 62

Kutschera v The Queen[2015] NSWCCA 73

Liu v Western Australia [2012] WASCA 218

Ly v The Queen [2014] FCAFC 175; 227 FCR 304

Mill v The Queen[1988] HCA 70; 166 CLR 59

Oliver (1982) 7 A Crim R 174

R v Beary[2004] VSCA 229; 11 VR 151

R v Beniamini (No 2)[2017] ACTSC 32

R v CA[2014] ACTSC 332

R v Carmody (Unreported Supreme Court of the Australian Capital Territory, Penfold J, 31 July 2009)

R v Carmody[2016] ACTSC 382

R v Celani [2012] SASCFC 134; 62 MVR 367

R v Clotworthy (1998) 15 CRNZ 651

R v De Leeuw[2015] NSWCCA 183

R v Elphick (No 2)[2015] ACTSC 23

R v Eluga[2016] ACTSC 304

R v Forrest [2015] ACTSC 283

R v Forrest[2016] ACTSC 321; 11 ACTLR 311

R v Fusimalohi[2012] ACTCA 49

R v Hart (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 7 December 2012)

R v Hennessy (Unreported, Federal Court of Australia, Gallop, Sheppard and Nicholson JJ, 23 May 1996)

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

R v Horne[2017] ACTSC 36

R v JM[2014] ACTSC 380

R v Jones[2004] VSCA 68

R v Kelly[2016] ACTSC 281

R v Kilic[2016] HCA 48; 339 ALR 229

R v Kristiansen [2015] ACTSC 159

R v Martin[2007] VSCA 291; 20 VR 14

R v McMahon[2014] ACTSC 280

R v McCurley[2016] ACTSC 219

R v Naqvi[2016] ACTSC 345

R v Payne [2004] SASC 160; 41 MVR 19

R v Qutami[2001] NSWCCA 353; 127 A Crim R 369

R v Richard[2011] NSWSC 866

R v Sami [2006] DCR 128

R v Samia[2009] VSCA 5

R v SAT [2006] QCA 70

R v Shafik-Eid[2009] VSCA 217

R v Spencer[2014] ACTSC 364

R v Strano (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 4 February 2013)

R v Thorn (Unreported, Supreme Court of the Australian Capital Territory, Higgins CJ, 7 September 2009)

R v Tran; ex parte Attorney-General of Queensland [2002] QCA 21

R v Verdins[2007] VSCA 102; 16 VR 269

R v Ware[2016] ACTSC 264

Saga v Reid[2010] ACTSC 59

Sampson v De Haan[2016] ACTSC 327

Talbot v The Queen (1992) 34 FCR 100

The Queen v Thorn[2010] ACTCA 10

Walker v The Queen[2011] VSCA 230

Wong v The Queen[2001] HCA 64; 207 CLR 584

Legislation Cited:

Bail Act 1992 (ACT)

Criminal Code 2002 (ACT), ss 308, 310, 311, 312, 313, 318(1), 318(2), 403

Crimes (Restorative Justice) Act 2004 (ACT)

Crimes (Sentencing) Act 2005 (ACT) ss 7, 27, 33, 33(1)(y), 63, 63(2), 118, Pt 4.4

Crimes (Sentence Administration) Act 2005 (ACT), ss 107, 110, 110(1)

Magistrates Court Act 1930 (ACT), s 90B

Road Transport (Driver Licensing) Act 1999 (ACT), s 32(1)(a)

Supreme Court Act 1933 (ACT), s 60A, Pt 8

CRIMINAL LAW — JURISDICTION, PRACTICE AND PROCEDURE — Judgment and punishment — sentencing — repeat offender — aggravated robbery — burglary — aggravated burglary — theft — intentionally damaging property — dishonestly taking a motor vehicle without the owner's consent — dishonestly driving someone else's motor vehicle without the consent of the owner — dishonestly receiving stolen property knowing or believing it to be stolen — driving whilst disqualified — rolled-up counts — conditional liberty at the time of offending — totality of sentence — Verdins principles — Restorative Justice undertaken — plea of guilty — general deterrence — specific deterrence — Deferred Sentence Order — bailed to attend residential drug rehabilitation

Decision:

• 1. Michael Paul Forrest be convicted of each of the offences to which he pleaded guilty on 5 August 2016 and 15 February 2017.

• 2. Michael Paul Forrest not be sentenced for these offences at this time and be released on bail under the Bail Act 1992 (ACT) from 7 March 2017 to appear in this Court at 9:30am on Tuesday 20 February 2018 to be sentenced for the offences of which he has been convicted on the following conditions:

  • (a) That he accept supervision of the Director-General or her delegate and obey all reasonable directions of the person supervising him including as to treatment for mental impairment and drug addiction.

  • (b) That he be released into the company of an employee of the Karralika Therapeutic Community and accompany that person to the Karralika Therapeutic Community for the purposes of treatment in the Community Rehabilitation Program.

  • (c) That he remain in the Program, except for approved absences or absences to attend Court, and obey all reasonable directions of the person in charge of the Program.

  • (d) That for any reason he is not admitted to the Karralika Therapeutic Community, or is discharged from that Program or leaves that Program, he report to the Officer-in-Charge of Tuggeranong Police Station within four hours to have his bail reviewed.

  • (e) That he authorise the person in charge of the Program to supply any information about his treatment and progress as may reasonably be required by the person supervising him.

  • (f) That he consent to the provision by his lawyer of the Report of Dr Danielle Clout, dated 7 December 2016, being provided to the Director of ACT Corrective Services and the person-in-charge of the Karralika Therapeutic Community.

  • (g) That he not use illicit drugs.

• 3. It be indicated that if Michael Paul Forrest does not comply with this order and the bail conditions, that he be sentenced to a term of immediate imprisonment for a period of approximately six years.

• 4. It be indicated that if Michael Paul Forrest complies with this order and the bail conditions, that he be sentenced to imprisonment for approximately six years but that be then suspended with a Good Behaviour Order for some years, and possibly the inclusion of a community service condition.

• 5. Michael Paul Forrest be subject to the following additional conditions:

  • (a) If he breaches the conditions of the bail or the order, he is liable to be arrested and brought before the Court;

  • (b) The Deferred Sentence Order may at any time be reviewed. In addition to his Honour reviewing the Deferred Sentence Order on his own initiative, the Director-General, the ACT Director of Public Prosecutions, or Michael Paul Forrest himself, may apply to the Court to have the order reviewed.

  • (c) On a review of the Deferred Sentence Order, his Honour may:

    • (i) take no action; or

    • (ii) warn Michael Paul Forrest about the need to comply with the conditions of the Deferred Sentence Order and his bail; or

    • (iii) amend the Deferred Sentence Order's conditions; or

    • (iv) cancel the order.

  • (d) If bail is revoked, the Deferred Sentence Order for Michael Paul Forrest be automatically cancelled.

Refshauge J

1 Between 13 and 25 July 2015, Michael Paul Forrest engaged in what might fairly be called a sustained rampage of criminality resulting in him being charged with 95 offences. He has also been charged with two offences arising out of events occurring between 9 and 12 September 2014.

2 Indeed, Mr Forrest's offending is quite complicated and the consequent sentencing proceedings will be complex.

Background

3 On 23 June 2016, Mr Forrest was committed to this Court for trial on the 97 charges to which I have referred above (at [1]).

4 On 5 August 2016, however, as a result of discussions between the ACT Director of Public Prosecutions and Mr Forrest, he pleaded guilty to 37 offences, and on 29 September 2016, I referred him for restorative justice under the Crimes (Restorative Justice) Act 2004 (ACT): R v Forrest[2016] ACTSC 321; 11 ACTLR 311 ( Forrest(2016)).

5 On 15 February 2017, I permitted the Crown, without objection by Mr Forrest, to amend the indictment by changing a date and an amount on two of the counts, and by adding a further count on the indictment to which Mr Forrest also pleaded guilty. He now stands to be sentenced for the 38 offences.

6 The offences may be summarised as follows: one count of aggravated robbery, one count of aggravated burglary, eight counts of burglary, 13 counts of theft, 11 counts of damaging property, one count of motor vehicle theft, two counts of receiving stolen property, and one count of driving someone else's motor vehicle without the consent of the owner.

7 Aggravated robbery is an offence against s 310 of the Criminal Code 2002 (ACT), which provides for a maximum penalty of 2500 penalty units (that is, at the time, a fine of $375 000) and 25 years imprisonment.

8 Aggravated burglary is an offence contrary to s 312 of the Criminal Code, for which the legislature has set for a maximum penalty of 2000 penalty units (that is, at the time, a fine of $300 000) and imprisonment for 20 years.

9 Burglary is an offence prohibited by s 311 of the Criminal Code, which renders Mr Forrest liable to a maximum penalty of 1400 penalty units (that is, at the time, a fine of $210 000) and 14 years imprisonment.

10 Theft is made an offence by s 308 of the Criminal Code and attracts a maximum penalty of 1000 penalty units (that is, at the time, a fine of $150 000) and imprisonment for 10 years.

11 Intentionally damaging property is...