STATE OF TASMANIA v JOSHUA JAMES CORBETT 29 MAY 2024
COMMENTS ON PASSING SENTENCE JAGO J
Mr Corbett, on 3 November 2021 Geason J sentenced you to a 12 month period of imprisonment, wholly suspended on condition that for a period of two years you commit no offence punishable by imprisonment. The sentence was imposed for the crime of trafficking in a controlled substance, namely cannabis. The facts of the trafficking are set out in the Comments On Passing Sentence of Geason J and I have regard to them generally. At the time Geason J sentenced you for that crime, he also dealt with some related summary offences, being possess a controlled drug, use a controlled drug, use a controlled plant, cultivate a controlled plant and drive a motor vehicle with a prescribed illicit drug in your oral fluid. The suspended sentence was not imposed in respect to the summary matters. They were dealt with by way of fine and disqualification. You have since breached the conditions of the suspended sentence and an application is made that the sentence be activated pursuant to s27 of the Sentencing Act 1997.
The breaching offences are as follows. On 13 June 2023, you committed the offences of evade police and drive whilst not the holder of a driver’s licence. Police saw you driving a motor vehicle and tried to intercept you. You did not stop but continued driving for approximately 170 metres before pulling into your driveway and exiting the vehicle and running into your residence to avoid police. You were bailed following the commission of these offences. On 29 June 2023, you committed the offences of drive a motor vehicle whilst a prescribed illicit drug was present in your oral fluid and driving whilst not the holder of a driver’s licence. You had both methyl amphetamine and cannabis in your oral fluid. On 8 July 2023, you committed a further offence of drive whilst not the holder of a driver’s licence. I also note that on 17 January 2024 you were found in possession of cannabis. Whilst this is not a breaching offence, it is relevant to the extent to which the suspended sentence has served its purpose by encouraging your rehabilitation.
You were dealt with in the Magistrate’s Court for the breaching offences. You were sentenced to a period of six weeks’ imprisonment, the execution of which was wholly suspended for a period of two years. You were also fined and disqualified. The application to breach the suspended sentence imposed by Geason J was before the magistrate. The magistrate declined to deal with it and adjourned the application to this Court pursuant to s 27(4A)(b) of the Sentencing Act.
Your counsel submits I should not activate the suspended sentence because it would be unjust to do so. Your counsel argues the suspended sentence has now come to an end, the breaching offences occurred towards the end of the period of suspension, approximately six months before its expiration, and further, that you now have the opportunity to participate in the Court Mandated Drug Diversion programme. Your counsel submits that I should find it would be unjust to activate the suspended sentence, and impose a substituted sentence, namely a Drug Treatment Order. I have been provided with an assessment report that was undertaken in respect to the breaching offences that were before the Magistrates Court. Obviously, the magistrate was not of the view that a court mandated drug diversion order was appropriate. I have regard to the contents of that report. It indicates that you have a long history of substance abuse, starting when you were approximately 13, with cannabis. You began using methyl amphetamine at about the age of 36, after your father passed away. I note this was around the same time as you committed the crime of trafficking, and shortly before you were sentenced for that crime. There is nothing in the Comments on Passing Sentence of Geason J which suggests your use of methyl amphetamine was known to the sentencing court. I also note you did not seek to be assessed for the Court Mandated Drug Diversion programme at the time of that sentence. There is nothing before me to suggest you have done anything during the life of the suspended sentence to address your ongoing drug use. Indeed, I note in the assessment report it is reported that the defendant “plans to contact Serenity House and try to spend a two week rehab [sic] before he is sentenced on 7 May 2024”. It seems when you were not sentenced into a CMD order by the Magistrates Court, you did not proceed with your plans. I certainly have nothing before me to suggest any attendance at Serenity House. It can then, be reasonably inferred, that your motivation was to avoid an actual period of imprisonment, as opposed to a genuine desire to commit to rehabilitation and address your drug addiction.
The proper approach to the activation of suspended sentences is discussed in Tanner v Brown [2011] TASSC 59. The broad question is whether the suspended sentence is having its desired effect in terms of rehabilitation. There is nothing before me to suggest that you have embarked upon any long term or effective rehabilitation. As noted, your drug use remains a difficulty, and in fact has escalated to a methyl amphetamine addiction. You have breached the terms of the suspended sentence by offending on three separate occasions, twice in June 2023 and then again in July 2023. After the offending of 13 June, you must have appreciated that you were at risk of having the suspended sentence activated, yet you continued to offend. Whilst I accept the breaching offences are not gravely serious, driving with drugs in one’s system presents a danger to other road users and the act of evading police is not an act, in my view, which is consistent with somebody endeavouring to become compliant with the law. The commission of the breaching offences is reflective of an ongoing attitude of non-compliance with the law. I note when Geason J sentenced you in November 2021 he said, “I note your prior convictions. They are relatively minor, but they underscore an ambivalent attitude to the law relating to drugs, and drugs and driving, and also emphasise the need for a sentence which deters you from future offending”. It seems little has changed in terms of your attitude and you have not been deterred from further offending. Moreover, your offending indicates ongoing drug use.
I acknowledge that there is a disparity in the nature of the original offence and the breaching offences. I also note the passage of time, some 18 months, between the imposition of the suspended sentence and the breaching offences. There is a genuine question of proportionality that arises. There is some merit in the submission that it would be a harsh response to activate the 12 month period of suspended imprisonment given the nature and extent of the breaching offences. This, however, must be balanced against the fact that you breached the suspended sentence on three separate occasions by committing driving offences, including driving with an illicit drug in oral fluid, and there is nothing before me to suggest that you have made any genuine endeavours to address your ongoing drug use. This demonstrates, in my assessment, scant regard for your obligations to comply with the terms of the suspended sentence. As was said by Porter J (as he then was) in Chatwin v Godffrey [2013] TASSC 70, the purpose of a suspended sentence is to punish as well as rehabilitate and the rehabilitative aspect is directed towards people becoming law abiding citizens, not selective offenders.
Generally speaking, if a defendant wastes an opportunity offered by the Court by re-offending then a suspended sentence should be activated. Suspended sentences are meant to be a last chance. Any unjustified departure from that principle undermines the integrity of the system of suspended sentences and the extent to which they may deter future offenders. It is important to remember that I am not considering the original sentence afresh, but determining whether activation of the sentence is unjust.
In the absence of evidence to suggest the suspended sentence is having its desired reformative effect, there is nothing about the nature, circumstances or gravity of the breaching offences which justifies the conclusion that activation of the suspended sentence is unjust. The breaching offences were sufficiently serious to justify the imposition of a period of imprisonment, albeit suspended, in the Magistrates Court. I have carefully considered whether the activation of the sentence will be a disproportionate response to the breaching offences, and whilst I appreciate that is a question about which minds may differ, in all of the circumstances, I am not persuaded it would be unjust to activate the suspended sentence. Proportionality can be addressed by permitting eligibility for parole.
The application is granted. I order that the 12 month period of imprisonment imposed on 3 November 2023, but held in suspense, be activated and the defendant be required to serve it. I order the defendant be eligible for parole once he has served one half of that period of imprisonment.