CJ v Francine Carolyn Adams;; R v CJ
[2011] ACTSC 116
•14 June 2011
CJ v FRANCINE CAROLYN ADAMS;
R v CJ
[2011] ACTSC 116 (14 June 2011)
CRIMINAL LAW – sentencing – sentencing of youthful offenders – principle of individualised justice – how it is to be considered.
CRIMINAL LAW – sentencing – sentencing principles – consideration of a discount for the guilty plea to each charge.
APPEAL AND NEW TRIAL – appeal – appeal from Children’s Court – Magistrates Court Act 1930 (ACT), Div 3.10.2 – fresh material relevant to sentence – appeal upheld – new sentences imposed.
Crimes (Sentencing) Act 2005 (ACT), ss 37, 116, 117
Crimes Act 1900 (ACT), ss 26, 151, 375
Criminal Code 2002 (ACT), ss 49, 308, 311, 312, 403
Bail Act 1992 (ACT), s 49
Magistrates Court Act 1930 (ACT), ss 216, Div 3.10.2
Burge v McCarron & Ors [2011] ACTSC 87
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
R v PM [2009] ACTSC 24
R v P (1991) 53 A Crim R 112
Hogan v Hinch (2011) 275 ALR 408
EX TEMPORE
ON APPEAL FROM THE CHILDRENS COURT OF THE ACT (SCA 78 of 10) AND
SENTENCING REMARKS (SCC: 356, 365 of 2010 & 204 of 2011)
No. SCA 78 of 2010
No. SCC 204 of 2011
No. SCC 356 of 2010
No. SCC 365 of 2010
Judge: Refshauge J
Supreme Court of the ACT
Date: 14 June 2011
IN THE SUPREME COURT OF THE ) No. SCA 78 of 2010
) No. SCC 356 of 2010
AUSTRALIAN CAPITAL TERRITORY ) No. SCC 365 of 2010
No. SCC 204 of 2011
ON APPEAL FROM THE CHILDRENS COURT OF THE ACT (SCA 78 of 2010):
CJ
Appellant
v
FRANCINE CAROLYN ADAMS
Respondent
AND SENTENCING REMARKS FOR:
R
v
CJ
ORDER
Judge: Refshauge J
Date: 14 June 2011
Place: Canberra
THE COURT ORDERS THAT:
CJ be convicted of the following offences:
a) burglary on 8 August 2009 (CH 2011/185) and a theft of property from those premises (CH 2011/286);
b) aggravated burglary of a shop at Cook on 22 December 2009 (CH 2010/1597) and theft of property from those premises (CH 2010/1598);
c) burglary on 28 February 2010 (CH 2010/1858) and damaging a flyscreen when entering that property (CH 2010/1859);
d) burglary on 24 May 2010 (CH 2010/1700) and theft of property from those premises (CH 2010/1839); and
e) breaching a suspended sentence (CH 2009/10112).
Convictions of the following offences committed on 15 December 2009 be confirmed:
a) assault (CH 2010/60);
b) two counts of intentionally causing damage (CH 2010/58 and CH 2011/59);
c) forcible entry (CH 2010/61); and
d) failing to appear in accordance with a bail undertaking (CH 2010/1589)
CJ be subject to a deferred sentence order, the court being satisfied of the eligibility and suitability provisions of s 116 and s 117 of the Crimes (Sentencing) Act 2005 (ACT).
CJ appear before the Supreme Court on 28 March 2012 at 9.30 am for sentence for the offences of which he has been convicted and for the offences subject of the appeal from the Children’s Court.
CJ be released on bail into the company of a staff member of Directions ACT to appear before the Supreme Court on 23 November 2011 at 9.30 am (for bail review) and 28 March 2012 at 9.30 am (for sentence) on the following conditions, that:
a) he proceed directly to Karralika Therapeutic Community (Therapeutic Community) for admission to the program of that agency;
b) he remain in that program until it is completed;
c) he obey all reasonable directions of the officer-in-charge of the Therapeutic Community and that he does not leave the program or premises without the express permission of the officer-in-charge of the Therapeutic Community;
d) he consent to the officers of the Therapeutic Community providing any information reasonably required by CADAS and by the officer delegated to supervise him;
e)
if he is not admitted or he is discharged from the program before its completion, he is to report to the Registrar of the Supreme Court within
24 hours with a view to having his bail reconsidered;
f) he is not to consume alcohol or illicit drugs;
g) he is to submit to breath analysis and urinalysis whenever reasonably required;
h) he is to submit to the supervision of the Director-General or her delegate and obey all reasonable directions of the person delegated to supervise him;
i) he accept monitoring by CADAS and consent to CADAS providing any information reasonably required by the officer delegated to supervise him.
For consideration by me today is an appeal from a decision of the Children’s Court and a series of offences which have been committed to this court for sentence. Together, they represent a major amount of criminal activity. This presents the court with a complex sentencing task, especially with the need to balance the fact that the offences are all quite serious offences and the fact that the appellant, as I will call the offender, is young and pleads for a chance to engage in rehabilitation.
The matter is further complicated in that the appeal first came before Teague AJ who indicated that he was minded to allow the appeal but was unable to complete the sentencing before his time as an acting Judge sitting here came to an end. I shall briefly deal with the appeal matter.
The appeal matter
The appeal concerned a nasty incident which occurred on 15 December 2009, leading to the appellant facing the following charges:
(a)A charge of assault, an offence under s 26 of the Crimes Act 1900 (ACT) (the Crimes Act) carrying a maximum penalty of two years imprisonment.
(b)One charge of forcible entry onto land contrary to s 151 of the Crimes Act, an offence punishable with a maximum of 20 penalty units, that is, a fine of $2,200 or imprisonment for one year or both.
(c)Two charges of intentionally causing damage to property prohibited by s 403(1) of the Criminal Code 2002 (ACT) (the Criminal Code), an offence attracting a maximum penalty of 1,000 penalty units, that is, a fine of $110,000 or imprisonment for 10 years or both.
(d)A charge of failing to appear in accordance with a bail undertaking he gave under the Bail Act 1992 (ACT) (the Bail Act), an offence against s 49(1) of that Act, which renders him liable to a maximum penalty of 200 penalty units, that is, a fine of $22,000 or imprisonment for two years or both.
The incident occurred when the appellant was in the company of four other young men in a car as it drove past a bus stop at which the victim was waiting. The males in the car made obscene gestures and shouted racial and disgusting taunts at the victim, and when he responded, in a quite restrained way, they turned the car around and chased him into his home, putting him in great fear for his life.
While continuing to shout racial abuse, they burst into the grounds of the victim’s house, damaging the fence gates and nine fence panels and damaging a sliding door to the house. The victim was so scared he picked up a knife to protect himself, but the males did not actually enter the room where he was.
The appellant threw a pot through the laundry door, smashing two of the decorative panels and causing lacerations to the victim’s arms and wrists. The victim was terrified for his life. A neighbour called out, “The police are coming,” and the males, other than the appellant, climbed back into the car and left the area. The victim then caught up with the appellant, tripping him and they had a tussle in which the victim kicked the appellant, his foot connecting with the appellant’s face.
There were other incidents where the victim struck and kicked the appellant while detaining him until police arrived. It appears that on 1 February 2010, he failed to appear in court following his arrest and subsequent bail and a warrant was issued. He was arrested, much later, on 9 September 2010 and remanded in custody where he has remained.
On 1 November 2010, he was sentenced to fifteen months imprisonment for the assault, six months imprisonment for each charge of intentionally damaging property and six months imprisonment for the charge of forcible entry onto land. The learned sentencing Magistrate imposed what she termed “no separate penalty” on the charge of failing to appear. That needs to be revisited in the light of my decision in Burge v McCarron & Ors [2011] ACTSC 87.
All sentences were directed to be served concurrently, making a total period of imprisonment of fifteen months. Because the sentencing is in the Children’s Court, no non-parole period is imposed. Her Honour, however, did not address that issue. Given the maximum penalty for the charge of forcible entry, the sentence seems high in comparison to the sentences for damaging property offences which carries a higher maximum penalty.
The non-penalty for the serious offence of not appearing in accordance with his bail undertaking seems unreasonably low, but the prosecution does not seem to have appealed against it.
Jurisdiction
Appeals from sentencing decisions of the Children’s Court are dealt with under Div 3.10.2 of the Magistrates Court Act 1930 (ACT) (the Magistrates Court Act). I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 the principles surrounding such appeals. I apply them in this case.
The sentences imposed in the Children’s Court are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence. I may uphold the appeal and substitute a sentence for the original sentence if I am satisfied the exercise of the sentencing discretion of the Children’s Court was affected by specific error, but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate and that I am not merely ‘tinkering’.
Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations or failing to take account of relevant or material considerations. If I find specific error, but the original sentence nevertheless appears to be appropriate, I should dismiss the appeal rather than allowing the appeal and re-imposing the same sentence.
Even if I cannot identify a specific error, I may uphold the appeal and substitute another sentence for the original sentence if I find the sentence to be manifestly excessive, unreasonable, plainly unjust or plainly wrong.
Under s 216 of the Magistrates Court Act, the institution of the appeal stays the execution of the sentence on which the appeal has been taken and accordingly, this needs to be addressed when the appeal is decided.
The appeal
A notice of appeal describes the grounds of appeal in this matter as follows:
(a)Her Honour erred in failing to give any or any sufficient weight to the appellant’s pleas of guilty.
(b)Her Honour failed to state the penalty that would otherwise have been imposed but for the pleas of guilty as required by the provisions of s 37 of the Crimes (Sentencing) Act 2005.
(c)Her Honour erred in failing to have regard to all available sentencing options.
(d)That the sentence imposed for the offence of common assault (CH 2010/60) was disproportionate to the objective facts as admitted.
(e)Her Honour failed to have any or any sufficient regard to rehabilitation.
(f)Her Honour failed to give adequate reasons for her decision.
(g)That the sentences were manifestly excessive in all of the circumstances.
As I have said, Teague AJ indicated that he would have allowed the appeal and re-sentenced the appellant. His Honour, unfortunately however, did not record his reasons.
A fair reading of her Honour’s reasons for the sentence imposed in the Children’s Court shows that at least for the assault charge she did allow a discount for the appellant’s plea of guilty. The amount cannot be discerned because the discount from two years (for her Honour described the assault as, “the worst category of the offence”) to fifteen months also included the appellant’s, “youth and prospects for rehabilitation” and, it appears, the need to avoid a crushing sentence which her Honour described as, “that you have got to see some light at the end of the tunnel.”
Her Honour, however, did not refer to any discount in respect of the other charges to which the appellant had also pleaded guilty. That these sentences were shorter than the sentence for the assault charge and to be served concurrently did not release her Honour from the statutory obligation of giving a discount, if appropriate, and, if so, of specifying what it was. If no discount was to be given, reasons for that decision were required.
Given that a discount was given on one charge arising out of the same events, it is hard to see a rationale for not giving a discount on the sentences for the other charges. It seems to me also that her Honour did not address the need to consider how much time in actual custody the appellant had to serve and construct an appropriate combination sentence if her Honour’s consideration led that way to meet that demand. I referred to that matter in R v PM [2009] ACTSC 24. If sentenced as an adult, the appellant would have been entitled to at least consideration of a non-parole period.
The other matter that I take into account is that her Honour had before her, as fresh charges, some of the further offences that have now been committed to be dealt with by this court. Had they been dealt with at the same time, there is no doubt that her Honour would have had to construct a sentence that integrated a total punishment for all the offences being faced by the appellant.
Their consideration was, however, adjourned and committed to this court because the prosecution refused to consent to them being dealt with in the Children’s Court under s 375(8)(d) of the Crimes Act. I have now to deal with these and the other matters. In effect, that seems to me to amount to fresh material relevant to sentence and which I need to take into account. That in itself re-activates and enlivens the sentencing discretion in relation to those matters on appeal. For these reasons, I will uphold the appeal and re-sentence the appellant.
The additional offences
I also have to sentence the appellant for additional offences, mainly burglaries and thefts committed between August 2009 and May 2010. These are:
a)a burglary on 8 August 2009 of residential premises at Harrison and theft of a TV screen, karaoke machine and black mobile and Bose speaker, valued at $3,599;
b)a burglary on 10 August 2009 at residential premises in Torrens and theft of items including cash, two mobile phones, an Apple iPod and other items, the property stolen totalling in value $10,708.51 and also damage to that property, being a broken window used to gain entry;
c)an aggravated burglary, the aggravation being that it was committed in company of a shop in Cook, ACT on 22 December 2009 and theft of alcohol, cigarettes and confectionary from that shop valued at $998.40;
d)a burglary on 28 February 2010 of residential premises at Nicholls, ACT and damaging a flyscreen at those premises used to gain entry; and
e)a burglary of residential premises at Macarthur on 24 May 2010 and theft of property from those premises valued at $3,115 and breach of a suspended sentence.
Aggravated burglary is an offence against s 312 of the Criminal Code, and attracts a maximum penalty of 2,000 penalty units, that is, a fine of $220,000 or twenty years imprisonment or both. Burglary is an offence under s 311 of the Criminal Code which provides for a maximum penalty of 1,400 penalty units, that is a fine of $154,000, fourteen years imprisonment or both.
Theft, an offence prohibited by s 308 of the Criminal Code renders the appellant liable for 1,000 penalty units, that is, a fine of $110,000, or ten years imprisonment or both. Damage property, an offence against s 403(1) of the Criminal Code attracts an identical penalty.
The circumstances of these offences are not particularly remarkable, and I do not need to detail them. They involve, simply, the entry by the appellant into the respective premises, occasioning damage in two cases and theft in some cases of not insignificant amounts of property. No doubt they were very distressing to the owners of the shop and the homes which were illegally entered and whose property which, no doubt, they had worked hard to earn the money to purchase, was taken and in some cases, not able to be returned.
Background
The appellant is the fifth of his mother’s eight children and the second of his father’s children. Neither of his parents has played an active, positive role in his upbringing.
Indeed, he was “given away” to his maternal grandmother when he was two months old and she was “the main one that brought [him] up,” during his early childhood. His mother led a transient lifestyle, often living in other states and her whereabouts were often unknown. She did come back and take charge of the appellant from time to time, then returning him to his grandmother.
The appellant had no contact with his father until approximately five years ago and has only had limited contact with him since. He has a child himself, a boy who was born in 2009. Although his relationship with his son’s mother has dissolved, he and his ex-partner are working together towards “being better parents and better role models” for their child.
Prior to being remanded in custody he had regular contact with his ex-partner and would be invited to her residence to see his baby. He has expressed a wish to resume that relationship, and to be a father to his son. That clearly is an important motivator if he genuinely accepts that and wishes to play a useful role model in his child’s life.
The appellant’s educational background is limited. Having completed primary school and despite being enrolled in a local high school, he did not commence study there. A number of attempts were made by several support agencies to engage the appellant in youth education programs within the community, however, he has been unwilling to undertake further education, preferring to gain employment, although he has never been employed.
He has, however, been engaged in educational vocational courses during various periods of incarceration, including a barista course, OH&S white card course, landscaping and general education programs with a view to attaining a Year 10 Certificate.
The appellant has an extensive history of poly-substance abuse. He started using alcohol at a very young age and by the age of ten was using cannabis on an infrequent basis, but this increased to daily use by age eleven. He began using amphetamines and methylamphetamine at about age thirteen on a regular basis. Prior to custody he was using three points per day of Ice, a large amount of cannabis (he described that: “basically it was constant, all day, every day”), three pills of Ecstasy a day and about three bottles of either Bundy Rum, Cougar, Jack Daniels or Smirnoff alcohol straight, more if he was in the company of mates.
When the author of the helpful pre-sentence report, dated 4 February 2011, asked him how he funded such a drug habit he replied:
There’s this chick I know who likes me. She would give them to me. She took equipment off me instead of cash. Cameras, jewellery, whatever I could get. I would steal it for her and she would sell it all in an instant and get her money that way.
He has completed a twelve week alcohol and other drugs course at the Ted Noffs Foundation and was compliant with directions to undertake regular urinalysis. He said:
I was going really well. I wasn’t using. My sister was keeping me on the straight and narrow but then they told me I couldn’t live with her anymore and I went back to using.
His claim that he had reached abstinence is not supported completely by urinalysis, although it did show a reduction in his drug use which is significant in itself.
He then failed to follow proposals that the Ted Noffs Foundation had made to him that he continue with alcohol and drug treatment and counselling so as to address his substance abuse issues. He refused then to engage further with such programs, claiming that he did not require any further intervention.
That clearly has not been true and I am satisfied that the offences that he has committed have been largely, if not entirely, to support his drug habit.
He has now been assessed as suitable to enter the Karralika Program offered by the Alcohol and Drug Foundation of the ACT and a bed is available for him today.
The appellant has some challenges with his mental health. He was diagnosed with Attention Deficit and Hyperactivity Disorder when he was thirteen and has been prescribed Ritalin for this condition. Dr Kasinathan, a Forensic Psychiatrist, has prescribed him with Lithium but indicated apparently that he did not find any major mental illness.
The appellant, however, has suggested that he has been diagnosed as suffering from Depression and Bi-Polar Disorder and that Lithium was prescribed for those symptoms. Certainly, Lithium is well known as a prescription drug to address Depression. It does seem to me that there is a need for a Forensic Mental Health Report in due course before final sentencing.
He has attended counselling sessions with Relationships Australia to improve his parenting skills and to address issues in his relationship with his ex-partner. He has arranged to have further sessions once he is released from custody. He and his partner attended two or three sessions which he described as, “really good, really helpful.”
In relation to the current offences, the appellant said:
For any of my offences, it’s always gonna [sic] be the same. I did them because I had no money, had nowhere to live, had nothing. I get no support from mum or my dad or anyone else. Nan can’t help me, she’s in a nursing home. I did it because I needed money to live on and to get some clothes and stuff. I didn’t have nothing [sic].
It seems to me that while that is almost certainly true, he also used the money that he obtained from these offences to feed his drug habit.
He did indicate that since being incarcerated in the Alexander McConachie Centre, he has found that a really bad experience. That was clear from the letters he wrote to me and hopefully it is a wake-up call and will be the motivator that he needs to build on some good work that he has done at the Ted Noffs Foundation, but that he needs to really address in the future.
The appellant said in his letter:
I didn’t want to get locked up. I wanted to be there for my son. If I went to any of those places they would have called the police and they’ll put me back inside. That’s what they used to do to my brother. Every time he went to ask someone for help, they always called the cops and he’d get locked up. I didn’t want to end up like him.
The author of the Pre-Sentence Report assessed him as follows:
... [The appellant’s] life history has been set against the backdrop of traumatic events inflicted upon him by dysfunctional parents. Even his earliest childhood experiences of the world around him included physical abuse, neglect, substance use, criminal activity and unpredictability around even the most basic needs such as food and shelter.
It is also agreed that the readily accepted anti-social attitudes and behaviours of his family members have significantly influenced his own thought processes. Sadly, these factors have deluded him into believing that his offences and his unacceptable actions are not criminal, they are survival strategies.
At the age of 18 years, [the appellant] has a criminal history in which his offences outnumber the years he has lived. He presents as a young man with little regard for the consequences of his offending behaviour on others and even less remorse for his actions. Sadly, he appears not to subscribe to the notion of learning from one’s mistakes. Nor, it appears, has juvenile detention been a deterrent against further offending. This is evidenced by his repeat offending and refusal to comply with the conditions imposed by the Courts.
Despite being offered numerous opportunities, assistance and support from a range of agencies and also the Court, he remains disinclined to lead a pro-social life. His significant and systematic resistance to address his criminogenic risk factors and reluctance to comply with the conditions of Court Orders is indicative of his unwillingness to recognise the ramifications of his offences on the victims of his offences, and the community in general.
Judging by his criminal portfolio, his history of non-compliance with Court Orders and the information provided by Community Youth Justice, it seems to be a case of [the appellant’s] history repeating itself. Since 2005, the details may have changed but the common threads remain – he commits an offence, pleads that it was the influence of the alcohol/drugs, makes pledges to rehabilitate himself and fails to deliver on these promises post-sentence.
At present, [the appellant] is assessed as being at high risk of re-offending.
That very depressing and perhaps slightly punitive assessment is supported by the various reports from Youth Justice which also indicate that he has not taken account of the opportunities that he has received. Nevertheless, I have read the letters that he has written to me and I am prepared to give him a further opportunity, but it will be a limited opportunity.
Conclusion
The common law approach to sentencing of youthful offenders was set out in
R v P(1991) 53 A Crim R 11 by Matthews J, with whom Gleeson CJ and Samuels JA agree, (at 116):
The approach to be adopted in the sentencing of young offenders has been discussed in a number of cases. In Wilcox (unreported, Supreme Court, NSW, 15 August 1979), Yeldham J remarked during the course of sentencing of a young offender that, ‘in the case of a youthful offender... considerations of punishment and general deterrence of others may properly be largely discarded in favour of individualised treatment of the offender, directed to his rehabilitation.’ His Honour relied upon Smith [1964] Crim LR 70, where it was said: ‘In the case of a young offender there can rarely be any conflict between his interest and the public’s. The public have no greater interest than that he should become a good citizen.’ This principle was also adopted by Hunt J in Bellavia (unreported, 16 August 1980).
Subsequent decisions of this Court, however, suggest that considerations of general deterrence should not be ignored completely when sentencing young offenders. In Broad (unreported, 30 March 1984), Street CJ referred to ‘the necessity to deter antisocial conduct ... commonly manifested by vandals in this city in current times’ but also was ‘concerned that for a young man of 19 with a clear earlier record and a supportive family background, importing as it does the prospects of real confidence in rehabilitation, a custodial sentence does not reflect the appropriate approach to be taken.’
In C, S and T (unreported, Court of Criminal Appeal, NSW Gleeson CJ, Allen and Studdert JJ, 12 October 1989), Gleeson CJ accepted a submission that:
[I]n sentencing young people ... the consideration of general deterrence is not as important as it would be in the case of sentencing an adult and considerations of rehabilitation should always be regarded as very important indeed.
As French CJ remarked in Hogan v Hinch (2011) 275 ALR 408 (at [32]):
Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.
I have given anxious consideration to all the circumstances in relation to the appellant, and I believe that ultimately he should have, as effectively his first foray into the criminal justice system as an adult, notwithstanding that it is a most depressing and inappropriate number of offences and amount of offending, an opportunity to address his behaviour.
I am impressed by the possibility that the need to provide a role model for his son may give a motivation for him seriously to address his behaviour at this stage and that the experience of being in an adult prison, the Alexander McConachie Centre, may also reinforce that motivation.
I convict the appellant of the following offences:
a) burglary on 8 August 2009 and a theft of property from those premises;
b) aggravated burglary of a shop at Cook and theft of property from those premises;
c) burglary on 28 February 2010 and damaging a flyscreen when entering that property;
d) burglary on 24 May 2010 and theft of property from those premises; and
e) breaching a suspended sentence.
I confirm the convictions for the assault on 15 December 2009, two charges of intentionally causing damage, a charge of forcible entry and failing to appear in according with a bail undertaking.
I note that the appellant is not serving, nor liable to serve, a term of imprisonment for an offence other than the offences for which I am sentencing you. I have considered the Pre-Sentence Report. I consider that CJ should be given an opportunity to address his criminal behaviour and the use of illicit drugs which have contributed to that behaviour before I sentence him for these offences. I am satisfied that I may release CJ on bail under the Bail Act.
Accordingly, I order that he appear before me at 9.30 am on 28 March 2012 to be sentenced for the offences of which I have convicted him and for the offences the subject of appeal from the Children’s Court. I release the appellant on bail to be released into the company of a staff member of Directions ACT to appear on that day, but also on 23 November 2011, and I impose the following conditions on his bail, that:
1. he proceed directly to Karralika Therapeutic Community (Therapeutic Community) for admission to the Program of that Agency;
2. he remain in that Program until it is completed;
3. he obey all reasonable directions of the officer-in-charge of the Therapeutic Community and that he not leave the Program or the premises without the express permission of the officer-in-charge of the Therapeutic Community;
4. he consent to the officers of the Therapeutic Community providing information reasonably required by CADAS and by the officer delegated to supervise him;
5. if he is not admitted, or is discharged from the program before its completion, he is to report to the Registrar of the Supreme Court within 24 hours with a view to his bail being reviewed;
6. he is not to consume alcohol or illicit drugs;
7. he submit to breath analysis and urinalysis whenever reasonably required;
8. he submit to the supervision of the Director-General or her delegate and obey all reasonable directions of the person delegated to supervise him;
9. he accept monitoring by CADAS and consent to CADAS providing any information reasonably required by the officer delegated to supervise him.
[His Honour then spoke directly to the appellant as follows:]
CJ, reading your history is a most depressing enterprise for me, particularly as you have had opportunities and you seem to have blown them. I hope I am right in discerning that the need for you to be a father to your son and the experience, which cannot have been pleasant, of being in the Alexander McConachie Centre has led you to the view that this is for the birds. This is no way for you to carry on.
You have said that to courts before, and then you have gone out and done just what you like. I will give you an opportunity. You are a young man. It is extraordinarily sad to see young men in this situation and I am going to give you that opportunity. But it will not be easy. You have had a lifestyle and an opportunity that will lead you easily back to crime unless you really work at this, and it will be hard.
But if you do that, the court will support you. I do not expect perfection; there will be occasions when you will drop the ball. The most important thing is if that happens, you come back and see me. We will see what we can work out. It may be that we cannot work anything out and you will have to go back to jail.
I hope not, but I will certainly do everything I can to try and support you if you are really committed to addressing the problems that you have in your life. I hope Karralika can do something for you; at least use this opportunity, and if you come back before me, make sure you do it and not run away for nine months like you did before.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 14 July 2011
Counsel for the Appellant: Mr J Sabharwal
(SCA 78 of 10)
Solicitor for the Appellant: Legal Aid ACT
(SCA 78 of 10)
Counsel for the Respondent: Ms M Hunter
(SCA 78 of 10)
Solicitor for the Respondent: ACT Director of Public Prosecutions
(SCA 78 of 10)
Counsel for the Crown: Ms M Hunter
(SCC 356, 365 of 10 and 204 of 11)
Solicitor for the Crown: ACT Director of Public Prosecutions
(SCC 356, 365 of 10 and 204 of 11)
Counsel for the Offender: Mr J Sabharwal
(SCC 356, 365 of 10 and 204 of 11)
Solicitor for the Offender: Legal Aid ACT
(SCC 356, 365 of 10 and 204 of 11)
Date of hearing: 9, 14 June 2011
Date of judgment: 14 June 2011
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