28 February 2013

Should breaching a good behaviour order activate a suspended sentence? [With poll]

| johnboy
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Justice Refshauge has shared his wisdom in the Matter of The Queen and Timothy Gray.

Timothy is the beneficiary of a cascading series of breached good behaviour orders and ever further suspended sentences.

The sentence has what to some will be a surprising line of thinking:

The breach of a Good Behaviour Order made when a sentence of imprisonment is suspended will generally require the court to consider seriously activating the sentence that has been suspended. In this jurisdiction, however, as I noted in Saga v Reid [2010] ACTSC 59 at [99], there is no presumption in favour of activation.

Is that something you’d like the Legislative Assembly to look at clearing up?

Timothy has been fined $1,250, had the length of his order continued, and will do 150 hours of community service on top of his other obligations.

Breaching a good behaviour order

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It’s about consequences for their actions. If people choose to take the action which gets them in front of a Magistrates then the consequences are set out for them. My thoughts are that these people haven’t had enough boundaries set in their lives and are therefore unable to regulate those boundaries themselves.

Good behaviour means just that – don’t commit any further crimes or you will go to jail.

Most of the community gets by just fine without regularly coming in front of the Court.

As a layperson I thought that is what a good behaviour bond meant, that if you did anything in breach of it you would go to gaol for the suspended sentence.

What is the point of a good behaviour bond if it is never enforced? Why even bother having a trial if there is no punishment?

Lookout Smithers12:18 am 01 Mar 13

bundah said :

Lookout Smithers said :

bundah said :

I as most would agree that judges should have discretionary powers.The problem that we’ve had in the ACT,for many years,is quite simply that the calibre of judges has been the issue,particularly in regard to sentencing practices.Sadly this type of scenario will rear its ugly head for some time to come until the current crop of limp wristed misguided fools retire.One can only hope that they choose wisely when appointing judiciary in the future!

Yeah hopefully they get top notch picks from NSW like Justice Yeldham or federal court legends like Judge Enfield. You joker you, sentencing practices comes after judgement. Yet this is your only issue? You make me giggle with your see-through tears.

Now now Marcus Einfeld had quite a distinguished career and was a national living treasure until he made the biggest mistake of his life and destroyed his credibility over such a silly trivial matter ie. lying about a speeding ticket.He was highly respected until then.

I still respect him now. He gets the benefit of making a grave error as a human. The fact that he went to jail is a reflection of the quality of the judiciary in the majority.

p996911turbo said :

I can not explain that decision and I would not presume to. At no point am I defending any particular decision. I’m only defending the judicial process.

My original point was that we should not automatically activate suspended sentences on the breach of a good behaviour bond. Instead, a judge should decide it. And I stand by that.

And this is where your opinion differs from the 98%. The judicial system has shown time and time again that they are incapable of providing a fitting punishment to crimes committed. Why threaten gaol time if a person commits another crime, then just extend the good behaviour order when they do.

I firmly believe that if a criminal has been lucky enough to have been given a good behaviour order instead of gaol time, they should forfeit any further leniency if they commit another crime where the punishment involves gaol time.

p996911turbo said :

My original point was that we should not automatically activate suspended sentences on the breach of a good behaviour bond. Instead, a judge should decide it. And I stand by that.

Fair enough.

Lookout Smithers said :

bundah said :

I as most would agree that judges should have discretionary powers.The problem that we’ve had in the ACT,for many years,is quite simply that the calibre of judges has been the issue,particularly in regard to sentencing practices.Sadly this type of scenario will rear its ugly head for some time to come until the current crop of limp wristed misguided fools retire.One can only hope that they choose wisely when appointing judiciary in the future!

Yeah hopefully they get top notch picks from NSW like Justice Yeldham or federal court legends like Judge Enfield. You joker you, sentencing practices comes after judgement. Yet this is your only issue? You make me giggle with your see-through tears.

Now now Marcus Einfeld had quite a distinguished career and was a national living treasure until he made the biggest mistake of his life and destroyed his credibility over such a silly trivial matter ie. lying about a speeding ticket.He was highly respected until then.

p996911turbo8:31 pm 28 Feb 13

m00nee said :

p996911turbo, perhaps you could explain why a person, who after being given a suspended sentence with a good behaviour order, is then sentenced to 3 months goal (served as periodic detention) for criminal activities that occurred 6 months after sentencing. Now if you read Justice Refshauge;s summation (quoted below) you wonder why we are all saying what the F***,

“I have recognised the seriousness of these offences by sentencing you to imprisonment, but you do not have to serve any of that imprisonment provided that you are of good behaviour, which means that you obey the obligations that I am going to put on you, and you do not commit any further offences that are punishable by imprisonment. If you keep out of that trouble for the next two years then you should be free of the obligations and you can reintegrate yourself into the community.”

I can not explain that decision and I would not presume to. At no point am I defending any particular decision. I’m only defending the judicial process.

My original point was that we should not automatically activate suspended sentences on the breach of a good behaviour bond. Instead, a judge should decide it. And I stand by that.

peitab said :

p996911turbo said :

Every single time one of these articles comes up on RiotACT it’s just full of vitriol towards the legal system and the offenders. Come on, let’s recognise the fact that we’re not able to see the whole picture and maybe have a bit more faith that the system is actually working.

It seems what you’re saying p996911turbo is that people should back off and let the courts do their job. I see it differently – that we have a responsibility to discuss and consider our judicial system to ensure it’s doing the job we need and want it to be doing. I’m not saying the system isn’t working, but that we shouldn’t have blind faith that it is.

Yes. Very precisely that.

Those in powerful positions are always uncomfortable with the scrutiny and criticism of the great unwashed. They’d much rather do their thing, and then retire to the drawing room for port and cigars.

It appears to me that recidivist criminals face little or no consequences in the ACT, and on that basis I have no faith in the judiciary. On the other hand, it also appears to me that you can end up in front of the beak in the ACT and then spend two or more years waiting for hizonner to make a decision about your guilt or otherwise, and this is another reason for my lack of faith in the local judiciary.

It’s just the courts I’m talking about here. The local cops do a pretty good job but the courts let them down.

p996911turbo8:25 pm 28 Feb 13

peitab said :

It seems what you’re saying p996911turbo is that people should back off and let the courts do their job. I see it differently – that we have a responsibility to discuss and consider our judicial system to ensure it’s doing the job we need and want it to be doing. I’m not saying the system isn’t working, but that we shouldn’t have blind faith that it is.

Good point, we definitely shouldn’t blindly accept the decisions.

My point is that the comments we get on these stories don’t represent both sides of the complex story. It’s all well and good that a bunch of people disagree with some of the actions of the courts, but to form a mini-consensus of the people who can be bothered to comment on a RiotACT post, doesn’t mean that view is necessarily right. And it certainly doesn’t necessarily mean that the judiciary is packed with a bunch of idiots.

p996911turbo said :

I don’t think breaching a good behavior bond should automatically activate a suspended sentence. I think we should have a judge decide that on a case by case basis.

Whether this particular individual deserved to have his sentence activated or not isn’t something that we can judge without seeing all the facts. That’s what the court process is for.

p996911turbo, perhaps you could explain why a person, who after being given a suspended sentence with a good behaviour order, is then sentenced to 3 months goal (served as periodic detention) for criminal activities that occurred 6 months after sentencing. Now if you read Justice Refshauge;s summation (quoted below) you wonder why we are all saying what the F***,

“I have recognised the seriousness of these offences by sentencing you to imprisonment, but you do not have to serve any of that imprisonment provided that you are of good behaviour, which means that you obey the obligations that I am going to put on you, and you do not commit any further offences that are punishable by imprisonment. If you keep out of that trouble for the next two years then you should be free of the obligations and you can reintegrate yourself into the community.”

Lookout Smithers7:52 pm 28 Feb 13

bundah said :

I as most would agree that judges should have discretionary powers.The problem that we’ve had in the ACT,for many years,is quite simply that the calibre of judges has been the issue,particularly in regard to sentencing practices.Sadly this type of scenario will rear its ugly head for some time to come until the current crop of limp wristed misguided fools retire.One can only hope that they choose wisely when appointing judiciary in the future!

Yeah hopefully they get top notch picks from NSW like Justice Yeldham or federal court legends like Judge Enfield. You joker you, sentencing practices comes after judgement. Yet this is your only issue? You make me giggle with your see-through tears.

p996911turbo said :

Every single time one of these articles comes up on RiotACT it’s just full of vitriol towards the legal system and the offenders. Come on, let’s recognise the fact that we’re not able to see the whole picture and maybe have a bit more faith that the system is actually working.

It seems what you’re saying p996911turbo is that people should back off and let the courts do their job. I see it differently – that we have a responsibility to discuss and consider our judicial system to ensure it’s doing the job we need and want it to be doing. I’m not saying the system isn’t working, but that we shouldn’t have blind faith that it is.

I want Refshauge if i have done nuffing wrong. Its how i was brout up your houner

Should it? Of course!

Will it? Not on your nellie.

Ask anyone in Canberra’s legal community and they’ll tell you Refshauge is a disgrace. Wonder if he realises it himself yet?

98%! That must be a record for RA polls?

How many chances do you get?Mr Monfries had many chances then he killed someone?

p996911turbo4:15 pm 28 Feb 13

bundah said :

That’s you isn’t Tezza,come on Chief Justice you’re not fooling anyone!

Guilty as charged. I sentence myself to 15 minutes community service.

p996911turbo4:13 pm 28 Feb 13

Spiral said :

I think that the woman killed outside the Canberra Hospital last year by someone benefitting from one of Refshauge’s stupid decisions makes it pretty clear that the system is not working.

Well there’s a faulty argument if ever I saw one. Single examples are never indicative of the overall crime reduction strategy. In a low-sentencing regime like Canberra, you can always find people who commit a crime in the public when they could have been in prison. But in a high-sentencing regime you can always find people who weren’t serious criminals until they went to prison for something minor and got involved in the wrong crowd. It simply doesn’t matter what approach you take to crime reduction, there will always be cases that make it look bad.

What really matters is the overall crime rate and recidivism rates across the whole society. And you know what? Canberra doesn’t lock people up all that much but it’s still a pretty damn good place to live. So I’m pretty damn happy the decisions being made in our judicial system.

p996911turbo said :

Spiral said :

Do Refshauge and co think that they are in tune with what the people want, or do they know that their decisions are unpopular but believe that they know best?

The purpose of the judiciary is not to do what the public want. Otherwise we’d have lynch mobs roaming the streets.

I don’t think breaching a good behavior bond should automatically activate a suspended sentence. I think we should have a judge decide that on a case by case basis.

Whether this particular individual deserved to have his sentence activated or not isn’t something that we can judge without seeing all the facts. That’s what the court process is for.

Every single time one of these articles comes up on RiotACT it’s just full of vitriol towards the legal system and the offenders. Come on, let’s recognise the fact that we’re not able to see the whole picture and maybe have a bit more faith that the system is actually working.

I think that the woman killed outside the Canberra Hospital last year by someone benefitting from one of Refshauge’s stupid decisions makes it pretty clear that the system is not working.

The High Court’s thoughts on our judiciary in the Hillier case is also worth bearing in mind.

http://netk.net.au/australia/hillier.asp

p1 said :

johnboy said :

The high court has suggested otherwise.

Suggested what? That the original sentencing judge didn’t intend for the crim to do any time when they gave them a suspended sentence?

Due to the incompetence displayed by some in our judiciary

Justice Dyson Heydon was moved to extraordinarily florid language for a High Court judge: “A party which has a duty to assist the court in achieving certain objectives fails to do so. A court which has a duty to achieve those objectives does not achieve them. The torpid languor of one hand washes the drowsy procrastination of the other.”

It has become so desperate that the ACT Bar Association has lodged a formal complaint with Attorney-General Simon Corbell about one judge. The Canberra Times reported last week that the judge was Richard Refshauge who reportedly has 20 cases with the judgment outstanding for more than 18 months, and one for nearly four years.

Hmm justice Canberra style!

johnboy said :

The high court has suggested otherwise.

Suggested what? That the original sentencing judge didn’t intend for the crim to do any time when they gave them a suspended sentence?

johnboy said :

The high court has suggested otherwise.

Exactly and in no uncertain terms.

p996911turbo said :

Spiral said :

Do Refshauge and co think that they are in tune with what the people want, or do they know that their decisions are unpopular but believe that they know best?

The purpose of the judiciary is not to do what the public want. Otherwise we’d have lynch mobs roaming the streets.

I don’t think breaching a good behavior bond should automatically activate a suspended sentence. I think we should have a judge decide that on a case by case basis.

Whether this particular individual deserved to have his sentence activated or not isn’t something that we can judge without seeing all the facts. That’s what the court process is for.

Every single time one of these articles comes up on RiotACT it’s just full of vitriol towards the legal system and the offenders. Come on, let’s recognise the fact that we’re not able to see the whole picture and maybe have a bit more faith that the system is actually working.

That’s you isn’t Tezza,come on Chief Justice you’re not fooling anyone!

It should be changed so there is a presumption for activating a suspended sentence when a good behaviour order is breached. Therefore there would have to be a compelling reason for the magistrate or justice not to activate the suspended sentence, rather than the other way around as currently exists. And that way any whiff of ‘mandatory sentencing’ is avoided.

After all, if the original sentencing magistrate/justice didn’t want the offender to face the possibility of jail, then why would they include it in the sentence?

p996911turbo3:32 pm 28 Feb 13

Spiral said :

Do Refshauge and co think that they are in tune with what the people want, or do they know that their decisions are unpopular but believe that they know best?

The purpose of the judiciary is not to do what the public want. Otherwise we’d have lynch mobs roaming the streets.

I don’t think breaching a good behavior bond should automatically activate a suspended sentence. I think we should have a judge decide that on a case by case basis.

Whether this particular individual deserved to have his sentence activated or not isn’t something that we can judge without seeing all the facts. That’s what the court process is for.

Every single time one of these articles comes up on RiotACT it’s just full of vitriol towards the legal system and the offenders. Come on, let’s recognise the fact that we’re not able to see the whole picture and maybe have a bit more faith that the system is actually working.

The high court has suggested otherwise.

Do Refshauge and co think that they are in tune with what the people want, or do they know that their decisions are unpopular but believe that they know best?

thebrownstreak693:10 pm 28 Feb 13

p1 said :

I am against mandatory sentencing as a general rule.

This, however isn’t mandatory sentencing. A judge gave he a suspended sentence and bond. If the idea of the suspended sentence isn’t the “stick” in a carrot and stick scenario, what exactly is it for?

I firmly believe the judges should have the ability to treat cases individually, and if warranted, be lenient. The default though should be the activation of the sentence.

Just be careful, because both carrots and sticks can be shoved up your arse if you do the wrong thing…

I as most would agree that judges should have discretionary powers.The problem that we’ve had in the ACT,for many years,is quite simply that the calibre of judges has been the issue,particularly in regard to sentencing practices.Sadly this type of scenario will rear its ugly head for some time to come until the current crop of limp wristed misguided fools retire.One can only hope that they choose wisely when appointing judiciary in the future!

Refshauge, you’re a disgrace. Both to your profession and the wider community.

I am against mandatory sentencing as a general rule.

This, however isn’t mandatory sentencing. A judge gave he a suspended sentence and bond. If the idea of the suspended sentence isn’t the “stick” in a carrot and stick scenario, what exactly is it for?

I firmly believe the judges should have the ability to treat cases individually, and if warranted, be lenient. The default though should be the activation of the sentence.

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