Director of Public Prosecutions v Clarke (No 3)
[2024] ACTSC 395
•13 December 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Clarke (No 3) |
Citation: | [2024] ACTSC 395 |
Hearing Date: | 25 October, 12 December 2024 |
Decision Date: | 13 December 2024 |
Before: | Taylor J |
Decision: | (1) The intensive correction order made on 15 September 2023 is cancelled. (2) The remainder of the sentence is to be served in full time detention to start on 13 August 2024 and end on 15 June 2026. (3) The non-parole period will start on 15 September 2023 and end on 14 April 2025. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – breach of intensive correction order – commission of further offences and illicit substance use – whether intensive correction order covering sentences for two offences to be treated as one order – non-parole period applicable dates – whether cancellation of the intensive correction order is not in the interests of justice – determination to cancel intensive correction order |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) ss 42(1)(a), 64, 65, 73 Crimes (Sentencing) Act 2005 (ACT) s 11 |
Cases Cited: | DPP v Clarke (No 2) [2023] ACTSC 261 DPP v Reid (No 2) [2024] ACTSC 350 Henry v The Queen [2019] ACTCA 5 Millard v The Queen [2016] ACTCA 14; 19 ACTLR 270 R v DU (No 5) [2022] ACTSC 172 R vFolauhola [2024] ACTSC 87 R v Hanson (No 2) [2023] ACTSC 158 Taylor v R [2014] ACTCA 9 The Queen v Ruwhiu [2023] ACTCA 18 |
Texts Cited: | Explanatory Statement for the Crimes (Sentencing and Restorative Justice) Amendment Bill 2015 |
Parties: | Director of Public Prosecutions ( Crown) Kevin Thomas Clarke ( Offender) |
Representation: | Counsel C Daly ( DPP) J Masters ( Offender) |
| Solicitors ACT Director of Public Prosecutions Peter Agoth & Associates ( Offender) | |
File Numbers: | SCC 297 of 2022 SCC 298 of 2022 |
TAYLOR J:
Introduction
1․On 15 September 2023 I sentenced the offender Kevin Clarke to a period of imprisonment to be served by way of an intensive correction order, commencing on that day and expiring on 14 June 2026: see DPP v Clarke (No 2) [2023] ACTSC 261 (Clarke (No 2)). The sentence of imprisonment comprised of two partly concurrent periods of imprisonment imposed for the offence of aggravated dangerous driving and the offence of driving a motor vehicle at a police officer.
2․The offender breached the core conditions of the intensive correction order, after returning a positive urinalysis result on 15 January 2024 when the presence of methylamphetamine and amphetamine was confirmed.
3․On 15 February 2024 the Sentence Administration Board (the Board) dealt with that breach and determined to cancel the offender’s intensive correction order pursuant to s 64 of the Crimes (Sentence Administration) Act 2005 (ACT) (the CSA Act). Accordingly, the offender was to serve the remaining two years and four months of imprisonment by way of full-time detention, expiring on 14 June 2026 unless the intensive correction order was reinstated before that date.
4․The offender applied for the intensive correction order to be reinstated. The Board conducted a hearing on 13 August 2024 and resolved to reinstate the intensive correction order effective from 13 August 2024. An order pursuant to s 73 of the CSA Act was made reinstating the intensive correction order.
5․On 4 June 2024 the offender was convicted and sentenced for an offence of driving while disqualified and an offence of failing to stop a motor vehicle for police. These offences were committed on 8 February 2024. Special Magistrate Hopkins sentenced the offender to a term of imprisonment expiring on 11 August 2024 and in addition, committed the offender, pursuant to s 65(4)(b) of the CSA Act to be dealt with by this Court in relation to the intensive correction order.
6․The effect of those circumstances is that the offender has been in full time custody since 15 February 2024.
7․The offender, having been convicted of offences punishable by terms of imprisonment, is in breach of the intensive correction order imposed on 15 September 2023: s 42(1)(a) of the CSAAct.
8․The matter was before me on 25 October 2024. The proceedings were adjourned on that date for the parties to further consider the issues for determination. Those issues included:
(a)whether the intensive correction order made with respect to the two separate offences is one intensive correction order?;
(b)if the intensive correction order is cancelled whether a non-parole period should be set; and
(c)if a non-parole period is set, the date it should commence.
One intensive correction order?
9․The prosecution submitted that the intensive correction order imposed in relation to the two separate offences (CC2022/4422 and CC2022/4421) ought to be considered a single intensive correction order. The sentences I imposed were:
(a)CC2022/4422 – drive at police, 30 months of imprisonment to start on 15 September 2023 and end on 14 March 2026.
(b)CC2022/4421 – aggravated dangerous driving, 9 months of imprisonment to start on 15 September 2025 and end on 14 June 2026.
10․The offender re-offended on 8 February 2024, a date referable to the first of the sentences directed to be served by way of intensive correction order.
11․The prosecution submitted that it is the ‘order’ to serve the periods of imprisonment by way of intensive correction order that is breached. That order extends over the period calculated by reference to the individual sentences imposed for each offence. The prosecution submitted that the order that each sentence be served by intensive correction order was the order ‘active’ at the time of re-offending and it is that order that now stands to be considered for cancellation. The offender did not challenge the prosecution’s position. For the reasons that follow I consider that the position encouraged by the prosecution is the proper approach.
12․The Explanatory Statement for the Crimes (Sentencing and Restorative Justice) Amendment Bill 2015, which inserted the sentencing option of an intensive correction order into the Crimes (Sentencing) Act 2005 (ACT) (the Crimes (Sentencing) Act), records that “the new sentence, to be called an ‘intensive correction order’ is formulated by the Bill’s provisions to be a stand-alone way of serving a sentence of imprisonment”.
13․Section 11 of the Crimes (Sentencing) Act provides for the making of an intensive correction order. The section applies if an adult offender is convicted of “an offence”. While the language unhelpfully refers to a single offence, the note to the section prohibits an intensive correction order being combined with certain sentencing outcomes suggesting multiple offences were contemplated. Section 11(3) permits the Court to “make an intensive correction order” in relation to “the sentence of imprisonment” in particular circumstances. The sentence of imprisonment imposed was a total period of 33 months; the sentences imposed partly concurrently. This was the “sentence of imprisonment” subject to the order I made pursuant to s 11.
14․The prosecution suggested that an offender could be sentenced to entirely consecutive terms of imprisonment, be ordered to serve those sentences by intensive correction order and those orders could be considered “individual consecutive intensive correction orders”. This position suggested that a sentence structured in that way would not see cancellation of the first intensive correction order, contemplate cancellation of the second intensive correction order because they would be separate or “individual” orders made with respect to each individual “sentence of imprisonment”. Such an outcome raises the question of the effect of the terms of s 65(3) where it limits the option of an intensive correction order to a sentence of imprisonment “for more than two years but not more than four years”.
15․The prospect that entirely consecutive periods of imprisonment, directed to be served by intensive correction order, would result in “individual consecutive intensive correction orders”, seems to me to leave open an outcome I am not persuaded is permitted by the legislation. For example, on that approach a total sentence of eight years of imprisonment comprised of multiple, entirely consecutive terms, could see an order made that each period be served by intensive correction order, so long as no “individual” intensive correction order was for more than four years.
16․I am not persuaded that such an outcome is consistent with what appears to be the intention for the stand-alone sentencing option of an intensive correction order to only be available where an offender receives a total term of imprisonment of not more than four years, however it might be comprised. The issue was not substantively argued and is unnecessary for me to determine it for the purposes of this matter.
17․I am satisfied that the sentence imposed in this instance was the “sentence of imprisonment” for which one intensive correction order was made. Accordingly, I am considering the cancellation of one intensive correction order that covers the entire term of 33 months of imprisonment.
18․If the intensive correction order is cancelled, s 65(5)(b) makes provision for the setting of a non-parole period. If I determine to cancel the intensive correction order, the prosecution submitted that the date the full-time detention period should start would be 13 August 2024, the day the Board determined to reinstate the intensive correction order. The start date of the sentence of imprisonment was 15 September 2023. This would be the start date for the non-parole period, consistent with the approach I took in DPP v Reid (No 2) [2024] ACTSC 350.
Cancellation of the intensive correction order
Not in the interests of justice?
19․Cancellation of the intensive correction order is not mandatory. I can determine not to cancel the intensive correction order. Cancelling the intensive correction order would require the “remainder” of the sentence I imposed on 15 September 2023 to be served in full-time detention.
20․Section 65 of the CSA Act provides:
65Cancellation of intensive correction order on further conviction etc
(1)This section applies if, after an offender was sentenced to serve intensive correction, the offender commits, and is convicted or found guilty of—
(a)an offence against a territory law, or a law of the Commonwealth, a State or another Territory, that is punishable by imprisonment; or
(b)an offence outside Australia that, if it had been committed in Australia, would be punishable by imprisonment.
(2)The sentencing court must, as soon as practicable—
(a)cancel the intensive correction order, unless cancellation is not in the interests of justice; and
(b)if the court cancels the intensive correction order—order that the remainder of the offender’s sentence be served by full‑time detention.
…
(7)If the court decides that it is not in the interests of justice to cancel the intensive correction order, the court must give reasons for the decision.
21․Accordingly, unless I determine that it is not in the interests of justice to cancel the intensive correction order, I must cancel the intensive correction order: s 65(2)(a) of the CSA Act. If I so determine, I must give reasons for the decision: s 65(7) of the CSA Act.
22․The offender submitted that the cancellation of the intensive correction order is not in the interests of justice. It was conceded that the offender has had the benefit of an intensive correction order before and has breached it, that illicit substance use has been a constant issue, and that his risk of re-offending has increased over time. The offender highlighted the following factors in relation to his subjective circumstances, said to favour cancellation not being in the interests of justice:
(a)the offender genuinely “tries again” after breaching and he has a robust plan in place;
(b)the plan for his return to the community includes living with his parents, undergoing treatment and courses, potential employment and rebuilding his relationship with his partner to live with her again;
(c)the offender recognised the need to address his problematic substance use through culturally appropriate treatment such as the Ngunnawal Bush Healing Farm, and he is willing to engage with the Canberra Recovery Services day program;
(d)the offender now has the necessary support and the “right frame of mind”; he acknowledged the need to avoid negative influences and focus on his family;
(e)the offender has completed courses while in custody over this period of remand including responsible service of alcohol; responsible service of gambling; first aid; and use of hygienic practices for food safety;
(f)the offender has been in custody since February this year; a significant period which has demonstrated to the offender the consequences of breaching conduct;
(g)the offender has been a “model prisoner” while in custody; and
(h)the author of the intensive correction order reinstatement assessment report found the offender suitable for reinstatement despite his history of breach conduct.
23․The prosecution submitted there is no basis to determine that it is not in the interests of justice to cancel the intensive correction order and pointed to the following factors:
(a)the fresh offending, while less serious than the original offences, was similar in nature and occurred only months into the intensive correction order;
(b)the offender by January 2024 had returned a positive result for drug use despite having completed the Solaris program while in custody. The offender was referred to Karralika following his January relapse;
(c)almost the entirety of the period the offender spent on remand awaiting the determination of his application for reinstatement was referrable to sentences imposed upon him for the fresh offending; and
(d)the offender has been more recently assessed as being a high risk for re-offending.
24․The prosecution submitted that even accepting that a genuine pathway to rehabilitation can include setbacks, this is not a matter where it can be found that cancellation of the intensive correction order “would interrupt an impressive pathway to rehabilitation”, as was the case in R v DU (No 5) [2022] ACTSC 172.
25․In R vFolauhola [2024] ACTSC 87 at [10] McWilliam J usefully set out the following circumstances that may inform a Court’s decision that not cancelling an intensive correction order is in the interests of justice, and I adopt them here:
(a) Where the term of the [intensive correction order] has ended by the time the offender becomes liable to be dealt with for the breach, following a finding of guilt: R v Dimitrov (No 2) [2020] ACTSC 54 at [13], [17]-[21]; R v Gunner (No 2) [2021] ACTSC 300 (Gunner) at [4]-[5]; R v XXL [2022] ACTSC 24 (XXL) at [37]-[38]; R v Kemppainen (No 3) [2023] ACTSC 323 (Kemppainen) at [10].
(b) Where the cancellation would interfere with rehabilitation: R v DU (No 5) [2022] ACTSC 172 (DU) at [26]; Gunner at [8].
(c) Where there has been a subsequent period of incarceration, with the consequence that the offender appreciated the gravity of supervision obligations attaching to an [intensive correction order] and there was an evident change in attitude to compliance: R v Hanson (No 2) [2023] ACTSC 158 at [17]-[21].
(d) Where there may be disproportionate hardship on third parties caused by the imposition of full-time imprisonment: DU at [20]-[21].
Consideration
26․The intensive correction order reinstatement assessment report prepared in August 2024 for the Board’s hearing remains relevant to a consideration of whether to now cancel the intensive correction order and I have had regard to it.
27․There is still a lengthy period remaining on the intensive correction order; the sentence of imprisonment to which it is attached expires on 14 June 2026. I am especially troubled by the commission of the fresh offences only five months into the term of the intensive correction order, noting that the breaching offences were the same type of offence for which the offender was sentenced by me in September 2023; that is, driving a motor vehicle while disqualified and failing to stop a motor vehicle for police.
28․While the period between the making of the intensive correction order and the fresh offences was relatively short, such that the benefit of intensive support was still to be realised, it could not have been more obvious to the offender the risk he was taking when he determined to drive a motor vehicle. The statement of facts for the fresh offending does not reveal any compelling reason for his driving, nor was one submitted on his behalf in these proceedings. The offender then made circumstances worse by failing to stop for police. Another offence with which he is familiar, and for which he has been previously punished. I am satisfied the offender knew well the potential consequences of the behaviour he deliberately engaged in February 2024 having been given the opportunity to serve the period of imprisonment I imposed upon him in the community.
29․This view is further confirmed by the offender’s history with intensive correction orders. He was sentenced to a period of 15 months of imprisonment for a firearms offence in December 2020 to be served by intensive correction order. That order was the subject of multiple breaches in relation to ongoing drug use and non-compliance with supervision. Ultimately the order was cancelled and at the end of 2021 the offender was required to serve the remaining period of 3 months and 15 days in full time detention. He was released on 25 March 2022. Since that time, it could only be said that the offender has persistently engaged with the criminal justice system.
30․In Clarke (No 2) at [60] I noted that the offender gave unchallenged evidence in those proceedings “outlining strategies to guard against the temptation to drive a motor vehicle”. Clearly the confidence I expressed about those strategies demonstrating his resolve not to re-offend in this way, as well as some insight into his conduct, was misplaced.
31․The positive urinalysis results coming as early as January this year reflects the kind of temptation I was concerned would be a challenge for the offender if he was to serve his sentence of imprisonment in the community. The original offending occurred when the offender was under the influence of illicit substances. All of the material in the original sentencing proceedings supported the conclusion that a critical influence on the offender’s criminal conduct was his entrenched use of illicit substances. In Clarke (No 2) at [66] I observed:
The offender was found suitable for an [intensive correction order]. The [intensive correction order assessment report] identifies the critical factors that led to that finding as the offender’s stable relationship, his suitable accommodation and the successful completion of a drug residential rehabilitation program while in custody. Unsurprisingly the report is clear that the key to sustained success for the offender in the community is his capacity and willingness to continue to address the role that illicit substances play in his life.
32․The offender’s criminal history is also consistent with the challenge illicit substance use has presented to him for some time. In Clarke (No 2) at [13] I recorded the view of the author of a pre-sentence report that the offender had “a past pattern of conduct where [he] expresses confidence in the custodial environment about his ability to abstain but struggles to implement that confidence in the community”. I also observed at [63] that “it cannot be ignored that the offender has struggled to comply with community-based orders in the past and returned to offending behaviour when opportunities for rehabilitation have been presented to him”.
33․This pattern has unfortunately been vividly demonstrated by the offender’s breach of the core conditions of his intensive correction order and the commission of fresh offending. The use of illicit substance alone may be tolerated to an extent where an offender is otherwise demonstrating effort and the relapse is not joined by fresh offending. The offender in this instance has revealed the gateway to offending that illicit substance use presents to him. The offending he engaged in presented a risk to him and to the community. The fresh offending demonstrates the willingness of the offender to risk his liberty even when he claims to have much motivating him to do otherwise. It is the repeated combination of relapse and fresh offending that entirely undermines his capacity to remain in the community.
34․The offender has now spent over four months in custody solely attributable to the breach of the intensive correction order. The full-time custodial environment is not unfamiliar to the offender. When I sentenced the offender in September 2023 he had spent eight months in full time imprisonment, representing the longest period he had spent in that environment. Despite that period, the offender has again engaged in conduct demonstrating his preparedness to risk safety and to risk his liberty.
35․In R v Hanson (No 2) [2023] ACTSC 158 (Hanson) Mossop J observed at [21] that an intensive correction order could operate to “retain maximum incentive for and pressure upon” an offender to continue along the path to rehabilitation. So much may be accepted. In this instance, if the intensive correction order did have that effect on the offender, it was short lived. The offender’s criminal history demonstrated that this is not the first occasion where an intensive correction order has not had a sustained effect on his motivation for reform. The offender’s experience of breaching an intensive correction order in 2021 and serving additional time in custody, does not appear to have effectively brough home to him the gravity of his obligations under such an order, as was the case in Hanson.
36․When I sentenced the offender in September 2023 his relationship was put forward as a pro-social factor strengthening the foundation for rehabilitation. The material now before me demonstrated that while the relationship appears to remain in place, it is no longer the solid foundation it once may have been. The intensive correction order reinstatement report from August 2024 noted that the offender’s initial suitability for an intensive correction order was based on a proposal for him to live with his partner. The reinstatement report records that:
[S]ince the cancellation of his order and ongoing third-party checks in relation to this arrangement, a lot of concerns were raised about the risk posed for this accommodation, primarily surrounding frequent reports of domestic disturbances and visits from police. Mr Clarke did acknowledge ongoing struggles with his relationship prior to the cancellation of his [intensive correction order].
37․The plan put forward by the offender is not dissimilar to that which was contemplated in September 2023. The offender remains supported by his family including being able to reside with his parents. The offender submitted that he plans to engage with drug rehabilitation day programs as he had in the lead up to September 2023. Notwithstanding that support and those plans, the reinstatement report of August 2024 categorised the offender as being at a high risk of re-offending and noted “service records demonstrate that Mr Clarke’s risk of re-offending has increased over time, likely due to his illicit substance use and continued offending in the community”.
38․The offender has not drawn to my attention any hardship that would be occasioned to his family or any other third party arising from an order that he serve the remainder of the sentence in full time detention. I am prepared to infer that such an order will have a negative effect upon his partner and their child as well as his other children, in terms of financial and other support the offender provides to them. I have had regard to that circumstance. I do not consider in this instance, that any hardship that might be experienced is a factor that weighs against cancellation of the intensive correction order.
39․This is not a case where it can be said that to cancel the intensive correction order would be to interrupt the offender’s consistent endeavours toward rehabilitation. The offender has demonstrated that which was foretold in the September 2023 material, where it recorded concerns as to his capacity to realise the aspiration he expressed to live a drug and offence free life.
40․I am satisfied that this is a matter where the “realistic prospect” of rehabilitation which underpinned the imposition of an intensive correction order in September 2023 has now been significantly diminished by the offender’s failure to grasp the opportunity that was made available to him, resulting in fresh offending. That is not to say that rehabilitation is entirely beyond the offender, but the reality is unless or until he substantively addresses his use of illicit substances and his willingness to engage in behaviour that risks his liberty, his capacity to comply with community-based orders will be severely compromised.
41․It has not been established that it is not in the interests of justice to cancel the intensive correction order. Accordingly, the order must be cancelled.
42․The sentence of imprisonment for which the intensive correction order was made was for longer than 12 months. The period of full-time detention the offender now stands to serve is longer than 30 days. Accordingly, I may set a non-parole period: s 65(5)(b) of the CSA Act. It is appropriate to do so and I have had regard to the principles that apply to that task: see Millard v The Queen [2016] ACTCA 14; 19 ACTLR 270 at 283-285 [61]-[66]; Taylor v R [2014] ACTCA 9 (Taylor) at [19]; Henry v The Queen [2019] ACTCA 5 at [33]-[37] and The Queen v Ruwhiu [2023] ACTCA 18 at [18] (citing Taylor with approval). I bear in mind that a non-parole period is the period that justice requires the offender to serve in custody, being the minimum period of actual incarceration required having regard to the objective seriousness of the offending, the offender’s subjective circumstances, the purposes of sentencing including punishment, and the offender’s prospects of rehabilitation
43․I consider it to be in the offender’s and the community’s interests that he have access to a significant period of supervision and support in order that he have the best chance of addressing those factors identified as critical to his risk of re-offending.
Orders
44․For those reasons, the orders of the Court are:
(1)The intensive correction order made on 15 September 2023 is cancelled.
(2)The remainder of the sentence is to be served in full time detention to start on 13 August 2024 and end on 15 June 2026.
(3)The non-parole period will start on 15 September 2023 and end on 14 April 2025.
| I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor. Associate: A Turner Date: 16 December 2024 |
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