Ayala v Poole (No 2)
[2017] ACTSC 85
•28 April 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Ayala v Poole (No 2) |
Citation: | [2017] ACTSC 85 |
Hearing Date: | 1, 5 April 2016 |
DecisionDate: Reasons Date: | 6 April 2016 28 April 2017 |
Before: | Refshauge ACJ |
Decision: | 1. The sentences of periodic detention made in respect of the counts of common assault are set aside and the following orders are made under s 61 of the Crimes (Sentence Administration) Act 2005 (ACT). 2. On the first count of common assault (CC14/11582), the sentence of six months imprisonment is confirmed and imposed, to commence on 12 March 2016. 3. That sentence be suspended today. 4. Jarome Ayala be required to sign an undertaking to comply with the offenders Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months from today with a community service condition that he perform 144 hours of unpaid community work within 18 months from today. 5. On the second count of common assault (CC14/11583), the sentence of six months imprisonment is confirmed and imposed, to commence on 12 March 2016. 6. That sentence be suspended today. 7. Jarome Ayala be required to sign an undertaking to comply with the offenders Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months from today with a community service work condition that he perform 144 hours of unpaid community work within 18 months from today. 8. The hours of community work to be performed according to Order 7 are to run concurrently with the hours of work to be performed under Order 4. 9. Jarome Ayala attend ACT Corrective Services, Eclipse House, London Circuit, Canberra City by 4:00pm today, 6 April 2016. |
Catchwords: | APPEAL – GENERAL PRINCIPLES – Appeal from Magistrates Court – appeal dismissed – sentence confirmed – re-sentencing CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – periodic detention – periodic detention not available – sentence related order – order contrary to law – sentence stayed – “serving a sentence of imprisonment” – re-open sentencing – re-sentencing CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – re-sentencing – common assault – family violence matters – mental health problems – depression – anxiety – post traumatic stress disorder – resistant to counselling or treatment – alcohol use – evidence from author of Court Duty Report – not suitable for community service work – finding of unsuitability overridden – extend time to perform community service work – sentence suspended – Good Behaviour Order |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), ss 11, 12(2), 55, 61, 901, Pt 5.4, Ch 20 Crimes (Sentence Administration) Act 2005 (ACT), s 6 |
Cases Cited: | Ayala v Poole [2016] ACTSC 63 Hadba v The Queen (2004) 146 A Crim R 291 |
Parties: | Jarome Ayala (Appellant) Sylvia Rachel Poole (Respondent) |
Representation: | Counsel Mr J Ayala (Self Represented) assisted by Mr D Emmerson (Appellant) Mr K Lee (Respondent) |
| Solicitors Jarome Ayala (Self-represented) (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 13 of 2015 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Cook Date of Decision: 2 February 2015 Case Title: Poole v Ayala Court File Numbers: CC 14/11582 and CC 14/11583 |
REFSHAUGE ACJ:
On 21 March 2016, the Court dismissed an appeal commenced by Jarome Ayala, the appellant, from a conviction for two counts of assault. See Ayala v Poole [2016] ACTSC 63.
When dismissing the appeal, the Court confirmed the convictions and sentences imposed in the ACT Magistrates Court. This is a desirable approach as explained in Hall v CL (No 2) [2015] ACTSC 294 at [19].
The difficulty that has arisen is in relation to the sentences in the Magistrates Court. For each assault, Mr Ayala was sentenced to six months imprisonment with the first three months to be served by periodic detention and the balance of the term of imprisonment suspended and a Good Behaviour Order was made for 12 months.
The problem with that sentence arises from the decision by the ACT Government to bring to an end the option of serving a sentence of imprisonment by periodic detention. The ACT Legislative Assembly made legislative amendments to give effect to that decision.
A question has arisen as to whether these provisions affect the sentence imposed on Mr Ayala and, if so, require action, for the sentence would then become one that is contrary to law.
The legislative amendments
On 5 December 2014, the Crimes (Sentencing) Act 2005 (ACT) was amended to restrict the circumstances under which a court may order that a sentence of imprisonment be served by periodic detention. Amongst the amendments there was inserted into the Act an amendment to s 11(3) which provided that periodic detention must be for a period of at least three months and must end before 1 July 2016. That means that it must end no later than 30 June 2016.
Subsequently, the Crimes (Sentencing and Restorative Justice) Amendment Act 2016 (ACT) repealed the provisions in the Crimes (Sentencing) Act authorising a court to order that a sentence of imprisonment be served by periodic detention (s 11) and for regulating the making of such an order under Pt 5.4 and substituted provisions for an Intensive Corrections Order. That repeal commenced on 2 March 2016.
A transitional provision was inserted in Ch 20 of the Crimes (Sentencing) Act and, in particular, inserted s 901 which relevantly provided:
(1)This section applies to an offender who, immediately before the commencement day, is serving a sentence by periodic detention.
(2)Subject to subsection (3), this Act, the Crimes (Sentencing) Act 2005 and legislation mentioned in the Crimes (Sentencing and Restorative Justice) Amendment Act 2016, schedule 1 (Consequential amendments), as in force immediately before the commencement day, continue to apply to the offender as if the amendments made by the Crimes (Sentencing and Restorative Justice) Amendment Act 2016 had not been made.
The conclusion of the appeal
As noted above at [1], the Court dismissed Mr Ayala’s appeal on 21 March 2016 and confirmed the convictions and sentences.
The filing of the Notice of Appeal commencing Mr Ayala’s appeal had, however, stayed the execution of the sentences imposed on Mr Ayala by virtue of s 216(1)(a) of the Magistrates Court Act 1930 (ACT), until the appeal was decided.
The decision of this Court to dismiss the appeal and confirm the sentences imposed on Mr Ayala was the deciding of the appeal and this automatically lifted the stay: s 216(1)(a) of the Magistrates Court Act.
At the date on which the appeal was decided, however, the provisions relating to periodic detention had been repealed and there were no legislative provisions supporting periodic detention unless the operations of the repealed provisions had been saved by s 901 of the Crimes (Sentencing) Act.
Further, in Snaidero v Crompton (No 2) [2014] ACTSC 367 at [15], I held that the order dismissing an appeal constituted the imposition of the sentence formerly imposed by the Magistrates Court. When the appeal was dismissed on 21 March 2016, however, there was no legislative provision which enabled or permitted a sentence of imprisonment to be served by periodic detention.
Thus, the imposition of the sentences that had been stayed became a sentence related order (see s 55 of the Crimes (Sentencing) Act) that was contrary to law.
The only way this would be avoided was if s 901 of the Crimes (Sentencing) Act, namely the transitional provision, applied to preserve the provisions permitting the imposition of an order that the sentence of imprisonment be served by periodic detention and the regulation of such a disposition.
That depends on whether the pre-condition for the operation of that provision was satisfied, namely that Mr Ayala was, immediately before 2 March 2016, serving a sentence by periodic detention.
At that time, Mr Ayala was clearly subject to a sentence of imprisonment to be served by periodic detention, though it was stayed.
In my view, it could not be said that he was then serving the sentence. It was stayed. He was not required to serve any periods of periodic detention.
I am fortified in my conclusion by the decision of Higgins J in Kelly v Hains (1995) 120 FLR 333, where his Honour had to consider the meaning of the phrase “serving a sentence of imprisonment”. His Honour held (at 336) that where a conviction was entered for an offence committed during a parole period being served by an offender, the parole order was automatically revoked and, if the parole period had expired at the date of the conviction, the revocation took place immediately before the expiry of the parole period. The offender was then serving the sentence of imprisonment originally imposed so the Court was required to set a new non-parole period unless it declined to do so.
His Honour noted the distinction in the then Parole Act 1976 (ACT) between a person being “under” a sentence of imprisonment, that is when on parole, and “serving a sentence of imprisonment”. If the parole period is completed without revocation, then the prisoner is “deemed to have served the period of imprisonment”. He or she is not serving it while on parole.
In my view, Mr Ayala cannot be said to have been serving the sentence of imprisonment by periodic detention immediately before 2 March 2016 as the sentence was stayed and, accordingly, the transitional provisions did not apply.
What can be done about the sentence?
There seemed to me to be two options available to consider in order to address this matter.
In the first place, the Court may, under s 61 of the Crimes (Sentencing) Act, re-open proceedings in which a sentence related order has been made that is contrary to law and proceed to re-sentence the offender.
In the second place, the Court has power under s 218 of the Magistrates Court Act to address issues such as these to ensure that no injustice is suffered by an unsuccessful appellant. See Schwalm v The Queen [2012] ACTCA 43 at [16], relying on Hadba v The Queen (2004) 146 A Crim R 291. This is regularly done: Re Osman (2010) 244 FLR 397 at 400; [17]-[19]. Certainly, in my view, the Court had this power at the time of dismissing the appeal.
The issue appears to have arisen in this case because, when Mr Ayala attempted to complete his periodic detention, ACT Corrective Services declined to accept him to serve periodic detention.
It seems to me likely that, having confirmed the sentence, the Court was functus officio and the error could not be corrected by a belated application of the powers under s 218 of the Magistrates Court Act, as construed in Hadba v The Queen. See Jovanovic v The Queen (1999) 92 FCR 580 at 584; [15]-[18].
Accordingly, I consider that the time for such orders has passed, though there may be a question as to when the orders of the Court in the appeal had “passed into the records of the court”.
The surest method is to re-open the sentencing under s 61 of the Crimes (Sentencing) Act for the purposes of making a sentence related order that is not contrary to law. I shall proceed in that way.
Re-opening the sentences
When I proceeded to hear submissions on the sentence that should now be imposed, the respondent, ably represented by Mr K Lee, tendered some further material about a prior offence committed by Mr Ayala. I rejected the tender.
Although it would have been admissible at the sentencing proceedings, it seemed to me that, subject to one exception, I should not allow material to be admitted that was available at the time of the sentence related to any period prior to the initial imposition of the sentence, and yet which was not before the learned Magistrate, other than in exceptional circumstances.
There was, in this case, no prosecution appeal against sentence; the proceedings are not designed to change the level of severity of the sentence but merely to ensure the sentence complies with the law. That is to say, this is not a re-sentencing in the sense that the sentencing discretion is to be exercised entirely afresh. There may be circumstances where such material should be admitted. In my judgement, this is not one of them.
On the other hand, material relevant to the sentence which has occurred since the sentence was imposed, may be relevant. For example, the need to take into account compliance with the sentence imposed and, in particular, service of pertinent elements, will be relevant so account can be taken of them rather in the way that they are taken into account when re-sentencing after breach of a Good Behaviour Order or following a referral back by the Sentence Administration Board when it decides an offender cannot complete periodic detention. See R v Kekalainen (No 2) [2015] ACTSC 369.
Sentences
Mr Ayala had been sentenced to six months imprisonment for each of the counts of common assault. Each sentence was to run concurrently and, in each case, the first three months was ordered to be served by periodic detention. The sentences were then to be suspended, presumably for three months, though that was not stated. See s 12(2) of the Crimes (Sentencing) Act.
A summary of the facts is set out in Ayala v Poole at [5]-[15] by Walmsley AJ. I do not need to repeat them but I take them into account.
I have also read the Pre-Sentence Report, the Report of the Court Alcohol and Drug Assessment Service (CADAS) and a character reference, all tendered to the learned Magistrate and admitted into evidence. I also had his criminal history.
They disclose that Mr Ayala is now 34 years old and unemployed. He has had, with the exception of what is described as “sporadic periods of unskilled employment”, a history of unemployment. This appears to be related to his mental health.
He suffers from anxiety and depression and a post-traumatic stress disorder, but it appears that he is resistant to engaging with treatment or counselling for that.
I heard from Mr Ayala on the sentencing and he indicated that, in the past, he had experienced difficulties, particularly with medication, but that he feels that he is able to manage his mental health at this stage. Although treatment has been successful, to some extent, he feels that it is essential for that success that it be voluntary. He is not currently prescribed or consuming any medication for the medical condition. He is not currently being counselled, but he has recently had a successful experience of counselling at a local health centre and he indicated to me that he would consider
re-connecting with that counsellor in appropriate circumstances.
He is in a relationship with the victim of the offences and they have now reconciled and appear to be living together.
Mr Ayala has had a problem with alcohol, where he would drink to excess at least twice a week. Alcohol was a precipitator for the assaults. He has, however, addressed that issue and the CADAS report stated that he had told the author that his current use was “very occasional” and that he has not consumed alcohol for about four months. He is confident he can continue to manage his alcohol use without further treatment or intervention.
This, however, is contradicted, to some extent, by the Court Duty Report, that I obtained in connection with re-sentencing, which stated that he had been consuming seven to nine standard drinks two to four times a month and the alcohol use disorders identification test assessed his use of alcohol in the past 12 months as at high risk levels and that he is almost certainly dependent. It was suggested that he may benefit from intensive alcohol related counselling.
Mr Ayala suggested to me that what he had said to the author of the Court Duty Report may have been misunderstood and that he uses alcohol for the limited purpose of managing his depression, but he considers that he is not dependent. This is an issue I cannot determine, but it is clear that he needs to be careful about his use of alcohol, particularly as it is clearly a precipitator of crimes that have brought him into the criminal justice system. He has completed a driver education program, required for the return of his driver licence, which had been cancelled.
He does not use any illicit substances.
A character reference stated that, over the past five years, Mr Ayala had matured and made a concerted effort to improve his life. He has family support and regular contact with his daughter, which has improved his mental health.
His criminal record extends back to 2001. He has convictions for 11 offences, of which four were relatively minor traffic offences, three were drink-driving offences, consistent with his abuse of alcohol, but, worryingly, the more recent offences were offences of common assault and possession of a knife.
He has been in custody for a short period when bail was refused. His response to community based orders has been satisfactory in part.
I have read the sentencing remarks of the learned Magistrate. Her Honour considered that denunciation of his conduct and holding him accountable were particularly relevant to the sentence to be imposed. Her Honour also considered rehabilitation a significant factor, though it was not entirely clear how that was reflected in the sentence.
Her Honour considered, too, that he needed to be deterred from engaging in the conduct again. Her Honour found that his plea of guilty had utility to the administration of justice and was indicative of remorse. Her Honour took into account Mr Ayala’s age, personal circumstances and the reports tendered.
Her Honour took into account Mr Ayala’s mental health, which reduced the need for general deterrence, and his criminal record, which reduced the scope for leniency.
Her Honour considered that the fact that the offences were family violence offences to be an aggravating factor.
Her Honour then imposed the sentences described above (at [3]).
Imposing a fresh sentence
I note that Mr Ayala has completed three periods of periodic detention.
Mr Lee, for the respondent, pointed out that there were four possible options for
re-sentencing:
(a) Full time imprisonment for the balance of the periodic detention period;
(b) An Intensive Correction Order;
(c) A Good Behaviour Order with probation and community service work conditions; or
(d) A Good Behaviour Order with no conditions.
I could also impose a fine. That, however, seems inappropriate both having regard to the seriousness of the offence but also given that Mr Ayala is a recipient of Centrelink payments.
The first option does not seem warranted on the approach outlined by the learned Magistrate, who recognised the need for rehabilitation and that Mr Ayala’s mental health reduced the appropriateness of general deterrence.
There are practical difficulties for the second option which would significantly delay sentence for some months and risk a full time sentence which is contraindicated.
That leaves the third and fourth options. The fourth option seems inadequate to meet the sentencing approach of the learned Magistrate. That leaves the third option
Accordingly, I sought an assessment for community service. I received the Court Duty Report to which I have earlier referred (at [41]), which contained that assessment.
Unfortunately, that assessment returned showing that Mr Ayala was unsuitable for a community service work condition to a Good Behaviour Order, specifically due to his mental health issues.
I was greatly assisted by the author of that report making himself available at short notice and giving oral evidence before me. He indicated that he had carefully considered the matter and had explored with Mr Ayala the circumstances of his mental health. He was concerned that his depression, in particular, appeared to make it difficult for Mr Ayala to get going in the morning. He said Mr Ayala struggled with getting out of bed, but Mr Ayala indicated to me that getting out of bed was not a problem so much as leaving the house, which caused anxiety and tension for him.
The author of the Court Duty Report indicated that there were, at the moment, two options for community service work: work within stores operated by The Salvation Army and team work for cleaning up an area of the Tidbinbilla Nature Park. The latter requires Mr Ayala to work within teams and it was the author’s opinion that that would put pressure on him.
It is not so likely that he would be working with other members of the community service work teams when working for The Salvation Army stores and that seemed a better option but it is a matter, of course, for ACT Corrective Services. The author was also concerned that Mr Ayala was self-medicating with alcohol. That is a matter of concern, but, if Mr Ayala is, as he now says, managing that without abusing alcohol, then it may be that it is to his benefit ultimately.
Mr Ayala, in personally making submissions to me, though being assisted by a
non-admitted person with some legal knowledge but, therefore, entitled to address me directly, indicated to me that, after careful consideration of the matter, he felt that he was able to complete community service work and that he was able to manage his mental health for that purpose. He said that he would try to undertake it so as to complete the community service work as soon as possible and then perhaps
re-connect with the counsellor from whom he had received some assistance of some significance.
On a careful consideration of the matter, and it should not be done without careful consideration, it seems to me that I am justified in overriding the finding of unsuitability of Mr Ayala for community service work in the circumstances. I did indicate to Mr Ayala, and it is to be remembered that, should the matter become too difficult, it would be desirable for him to return to Court, as he is able to do under the Crimes (Sentencing) Act, to seek a variation of the Good Behaviour Order that I propose to make, were he unable to complete the community service work condition.
That would be preferable to awaiting a breach where, because of the difficulties he may experience, he fails to attend for community service work and breach action is taken by the ACT Corrective Services.
In that context, it seems to me that it is appropriate that the re-opening of this sentence can result in the making of a Good Behaviour Order. See GW v The Queen [2016] ACTCA 9 at [17].
There are two further matters I need to address. The first is that it was submitted to me that I should give Mr Ayala a little extra time in which to complete the work, even though he intends, at the present, to try and complete it as quickly as possible.
That seems to me a sensible matter because that would give him time, if there are problems that he experiences, either to get some mental health assistance and have another attempt to complete the work within the total period or, alternatively, to come back to Court. That does mean, however, that I would have to extend the Good Behaviour Order beyond the 12 months that was imposed by the Magistrate, but it seems to me that that is appropriate in all the circumstances.
The second matter was the question of whether to require Mr Ayala to attend treatment and counselling as directed under a probation condition.
The reason why that may be thought to be desirable was that Mr Ayala’s mental health conditions were the reason he was assessed as unsuitable for a community service condition. It was sufficient, for example, to justify his receipt of a disability pension through Centrelink. The difficulties that his mental health may cause is that his anxiety condition might be aggravated by the condition of the community service, especially if working in a team situation.
At the present, he was not medicated or under psychiatric or psychological care. The author of the Court Duty Report was concerned that he may be self-medicating with alcohol and that would risk him being sent away because arriving while intoxicated. As noted above (at [62]), Mr Ayala felt his alcohol use had been misunderstood. This was corroborated in the CADAS Report.
Mr Ayala’s position was that he has problems with medication as they made him quite ill. To attend for psychiatric counselling was stressful in itself. He considered that he would be better able to manage without mandated treatment, as that would add to the stress that the performance of community service work might itself bring.
I accept that Mr Ayala has the capacity to monitor his mental health so that, if performance of the community service work becomes problematic, he can seek assistance and he knows where to obtain that which is most beneficial for him. There is much to be said for encouraging autonomy in this situation. Accordingly, I will not require mandated treatment or counselling.
Accordingly, on 6 April 2016, I set aside the sentences of periodic detention made in respect of the two counts of common assault and, instead, imposed a sentence under
s 61 of the Crimes (Sentencing) Act 2005 as follows:
(1) On the first count of common assault, I confirm the conviction and impose the sentence of six months imprisonment to commence on 12 March 2016 to take into account the period of the sentence which has already been served.
(2) The sentence is suspended today.
(3) I require Jarome Ayala to sign an undertaking to comply with the offender’s Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months from today with a community service condition that he perform 144 hours of unpaid community work within 18 months of today.
(4) On the second count of common assault, I confirm the conviction and impose the sentence of six months imprisonment to commence on 12 March 2016 to take into account the period of sentence which has already been served.
(5) The sentence is suspended today.
(6) I require Jarome Ayala to sign an undertaking to comply with the offender’s Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 for a period of 18 months from today with a community service condition that he perform 144 hours of unpaid community service work within 18 months of today.
(7) The hours of community service work to be performed are to run concurrently with the hours of work to be performed under the earlier order.
(8) I require Jarome Ayala to report to ACT Corrective Services at Eclipse House, London Circuit, Canberra City by 4:00pm today.
[When imposing the sentence, His Honour then spoke directly to Mr Ayala]
That contains the formal order I make, Mr Ayala, but I just need to explain that to you, although we have had a conversation about that. I have confirmed the six months imprisonment. I have backdated it, as you have already served three weeks of that. I have suspended it today, so it is a suspended sentence, and I have made a Good Behaviour Order, as I am required to do, for 18 months so you will have to go over and sign an undertaking again to comply with the obligations and the principal obligation is not to commit any further offence punishable by imprisonment within that 18 month period. You now have that risk. If any such offence is committed, you can be brought back to Court and the sentence of imprisonment can be activated and imposed or other orders can be made. You need to just watch that and I just remind you that drink driving is an offence that would breach the order.
I have made a community service condition on each order for 144 hours because that is about the balance of the periodic detention, but it is concurrent so you only have to serve one lot of 144 hours. I have required you to complete that within the 18 month period.
I do emphasise that you should take control of your own destiny. If things are not going well, come back to the Court and we will see what can be done. I cannot guarantee anything – who knows, but you need to come back to the Court and you need to bring, if it is a mental health issue, some medical reports or something like that which assist.
My own view is that you should seriously consider going back to the counsellor that you worked with, but it is a matter for you. You know yourself best and, if you feel you just want to have a crack at the community service work, then that is a matter for you. I do say, however, that it puts you under stress to say “I am going to get 144 hours done in a month”. You can do that but that would put you under stress and stress is contraindicated for things like the PTSD and the anxiety. You need to pace yourself and work that through, speak to Corrective Services about how you are going to do that and the author of the Pre-Sentence Report; it may be useful have a chat with him now about how best to deal with that.
Take it on board that, whatever you think about the facts of the matter, whether you are guilty or not, the Court has found you guilty. This sentence has not set the convictions aside. Do the time, do it in this way rather than in another way and move on with your life. I hope this sentence will enable you to do that in a way that balances the need for the community to recognise and denounce the behaviour that you have been found to have committed and for you to be dealt with justly and fairly.
| I certify that the preceding seventy-nine [79] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Refshauge. Associate: Date: 28 April 2017 |
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