Aviles v the King - [2023] NTSC 59

CITATION:Aviles v the King [2023] NTSC 59
PARTIES:AVILES, Juan Araya

v
THE KING

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:22117931
DELIVERED:  6 July 2023
HEARING DATE:  28 March 2023, 21 April 2023 and 6 July 2023.
JUDGMENT OF:  Burns J

Supreme Court Rules, Rule 81A.11 (2) (a)
Sentencing Act 1995 (NT), s 42

REPRESENTATION:
Counsel:
Crown:S Evans
Accused:J Franz
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Darwin Family Lawyers
Judgment category classification: C
Judgment ID Number: Bur2312
Number of pages: 7

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Aviles v the King [2023] NTSC59
No. 22117931
BETWEEN:

JUAN ARAYA AVILES

AND:

THE KING

CORAM: BURNS J
REASONS FOR DECISION
(Delivered 6 July 2023)
Introduction

On 12 January 2022, the applicant, Juan Salvador Araya Aviles, was sentenced in this Court to 4 years imprisonment for an offence of supplying a commercial quantity of cannabis. That sentence commenced on 8 June 2021 and will expire on 7 June 2025. The sentencing Judge ordered that the applicant serve 2 years full-time imprisonment with the balance of 2 years to be suspended upon the applicant complying with stated conditions for a period of 2 years from the date of suspension (the Suspended Sentence Order).
The conditions the applicant is obliged to comply with from the date of suspension are:
The offender is to be supervised by community corrections for a period of 12 months following release on the following conditions:
a.The offender will be under the ongoing supervision of a probation and parole officer, and must obey all reasonable directions from a probation and parole officer, and must report to a probation and parole officer within 2 clear working days after your release from custody;
b.The offender must tell a probation and parole officer of any change of address or employment within 2 clear working days after the change;
c.The offender must not leave the Territory except with the permission of a probation and parole officer;
d.The offender will not possess or consume a dangerous drug, and will submit to testing as directed by a probation and parole officer for the purpose of detecting the presence of dangerous drugs;
e.The offender will participate in assessment, counselling and/or treatment as directed by a probation and parole officer.
By an application dated 5 April 2023, the applicant has applied under Rule 81A.11(2)(a) of the Supreme Court Rules, read in conjunction with s 42 of the Sentencing Act 1995 (NT), for an order that the Suspended Sentence Order be varied as follows:
· to remove conditions a., b., c., and e.; and
· to remove from condition d. the words “and will submit to testing as directed by a probation and parole officer for the purpose of detecting the presence of dangerous drugs
The application is supported by an affidavit sworn by the applicant on 5 April 2023. In the affidavit, the applicant deposes to the following:
a)    on 7 June 2023 he was released from custody on administrative detention. This is home detention which is approved by the Superintendent of the Darwin Correctional Centre. Since that time he has been supervised by Samantha Milne, a Probation and Parole Officer of NT Corrections. He moved into rented accommodation arranged for him by his mother and brother. He has been consistently employed since he was released. He initially reported to Ms Milne weekly, then fortnightly, and most recently monthly. He has been drug tested regularly and breathe tested weekly for alcohol. He has remained abstinent from drugs and alcohol and all of his test results have been negative;
b)   on 7 June 2023 his suspended sentence would come into force, ending his administrative home detention;
c)    on 2 March 2023, his lawyer wrote to Ms Milne submitting his application to transfer his supervision from NT Corrections to Corrections in South Australia;
d)   he subsequently spoke to Ms Milne who told him that the supervision conditions of his suspended sentence could not be transferred to South Australia;
e)    he is applying to vary the terms of his Suspended Sentence Order to enable him to return to South Australia.
The reasons for the applicant seeking the variation of the Suspended Sentence Order are set out in his letter to NT Corrections dated 19 February 2023 which was annexed to the letter sent by the applicant’s lawyers to Ms Milne on 2 March 2023. Those reasons may be summarised as follows:
·     his father is unwell, and since the applicant’s arrest his father has been placed in a nursing home in Adelaide. He suffers from Alzheimer’s disease and there is no one to assist him by taking him out for day outings and to visit him. The applicant wishes to return to Adelaide to be able to care for his father;
·     his mother is unwell, having been through an operation to remove the tumour from her shoulder last year from which she has not fully recovered. She is unable to do normal household chores and cannot assist the applicant’s father. The applicant wishes to return to Adelaide to also be able to care for his mother;
·     he is concerned for his safety and well-being if he remains living in Darwin. In prison, he removed himself from the general area and placed himself in protection to avoid violence and persecution from his co-offenders. The applicant stated that his co-offenders wanted him to lie to the police and the Court to say that the cannabis was not for them. He refused, and they threatened him with violence. He understands that one of his co-offenders will be entirely at liberty from September 2023. He is concerned that while working and living in Darwin his co-offenders will find out where he is living and working and take revenge;
·     he wants to return to Adelaide to complete ongoing medical treatment to his jaw. He had three major operations in Adelaide in 2020, and was meant to have further operations but has been unable to undergo these procedures because the surgeon is in Adelaide and does not operate in Darwin. Specialised equipment is necessary to undertake which is available in Adelaide; and
·     nearly all of his family support, apart from the support of his partner, is in Adelaide. He has employment available to him when he returns to Adelaide.
A Community Corrections Compliance Report (Report) dated 28 April 2023 confirmed that the applicant had been compliant with his Administrative Home Detention Order. The Report also confirmed that the applicant had been subjected to random drug and breath testing during the period of his Administrative Home Detention Order and he had not recorded any positive breath or drug test results. He had never failed to provide a test sample when directed.
The Report stated that there are no current arrangements between the Northern Territory and South Australia which would permit a transfer of the applicant’s supervision under his Suspended Sentence Order from this Territory to South Australia. The Report advises Community Corrections would be unable to supervise the applicant remotely.
The operative statutory provision governing the present application is s 42 of the Sentencing Act, which relevantly provides
42 Variation of order conditionally suspending sentence
(1) A court which has made an order wholly or partially suspending a sentence of imprisonment on certain conditions may, on application under this subsection, if satisfied that:
(a)the circumstances of the offender have materially altered since the order was made and as a result the offender will not be able to comply with any condition of the order; or
(b)the offender has failed or is no longer willing to comply with a condition of the order;
vary or cancel the order and, subject to subsection (2), deal with the offender for the offence or offences with respect to which the order was made in any manner in which the court could deal with the offender if it had just convicted the offender of the offence or those offences.
If the term “no longer willing to comply” in s 42(1)(b) is given a narrow interpretation meaning that the offender is refusing to comply, the anomalous situation would exist whereby a variation of a suspended sentence could be made for such an offender but not for one, such as the applicant, who will comply if the application to vary is unsuccessful. The more sensible approach, which surely reflects the intention of the legislature, is that the term refers to an offender who is reluctant or not disposed to continuing to comply with the terms of the order.
Suspended sentence orders may apply to an offender for a period of years. The circumstances of the offender may alter during that time such that, while the offender is able to comply with the conditions of the order, it is desirable to vary the terms of the order. For example, the rehabilitation of an offender may be enhanced by changing the orders made at the time of sentencing.
I am satisfied that the application should be allowed for the following reasons:
a)    The significant period during which the applicant was released on Administrative Home Detention allowed Community Corrections to facilitate the applicant’s return to the community and to monitor the progress of his rehabilitation;
b)   the applicant has adhered to the requirements of his Administrative Home Detention and has cooperated with Community Corrections;
c)    the applicant has greater community and family support in Adelaide which will enhance his prospects for rehabilitation;
d)   there is less chance that the applicant will encounter his co-offenders in Adelaide than in Darwin. This will increase the applicant’s personal safety and enhance his prospects for rehabilitation; and
e)    it is in the interest of the applicant’s family and the community generally that the applicant be available to assist his aging and unwell parents in Adelaide.
I allow the application and make the orders sought by the applicant as follows:
1.    Conditions a., b., c., and e., will be deleted.
2.    There will be a new condition a. which will be that the offender will be under the ongoing supervision of a probation and parole officer and obey all reasonable directions of a probation and parole officer until 8 September 2023.
3.    There will be a new condition b. which will read that the offender is to leave the Northern Territory within 1 month of 8 September 2023 and reside in Adelaide.
4.    Condition D will be amended by deleting the words “and will submit to testing as requested by a probation and parole officer for the purposes of detecting the presence of dangerous drugs”.

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