Director of Public Prosecutions v Myles (No 2)

[2024] ACTSC 231

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Myles (No 2)

Citation: 

[2024] ACTSC 231

Hearing Date: 

15 July 2024

Decision Date: 

18 July 2024

Before:

Hopkins AJ

Decision: 

See [38].

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Drug and Alcohol Treatment Order cancelled – unsatisfactory circumstances – s 80ZE imposition or resentence – resentence – rehabilitation in custody – intensive correction order

Legislation Cited: 

Crimes (Sentencing) Act 2005 (ACT) ss 11, 80ZE

Cases Cited: 

DPP v Myles, unpublished, Supreme Court of the Australian Capital Territory, SCC 155, 156 of 2023, Refshauge AJ, 21 August 2023)

Hogan v Hinch [2011] HCA; 243 CLR 506

R v Cook (No 2) [2024] ACTSC 27

R v Tonna (No 2) [2022] ACTSC 362

Texts Cited: 

Supreme Court of the Australian Capital Territory, Behavioural Contract Protocol – Sanctions and Incentives, 30 September 2021

Transcript of Proceedings, DPP v Myles (Supreme Court of the Australian Capital Territory, SCC 155, 156 of 2023, Refshauge AJ, 3 November 2023)

Parties: 

Director of Public Prosecutions ( Crown)

Ryan Anthony Myles ( Offender)

Representation: 

Counsel

B Chifuntwe ( Crown)

C Duffy ( Offender)

Solicitors

ACT Director of Public Prosecution ( Crown)

Legal Aid ACT ( Offender)

File Number:

SCC 115 of 2023

SCC 116 of 2023

HOPKINS AJ:

Introduction and Background

1․Ryan Myles, on 21 August 2023, you were sentenced to a total of 3 years and 11 months imprisonment for offences of:

(a)burglary (CAN 1239/2022);

(b)unlawful possession of stolen property (CAN 1240/2022);

(c)aggravated dangerous driving (CAN 5134/2022);

(d)dishonestly driving a motor vehicle without consent (CAN 1037/2023);

(e)aggravated dangerous driving as a repeat offender (CAN 1040/2023); and

(f)driving disqualified as a repeat offender (CAN 1036/2023).

2․Your sentence was backdated to commence on 15 February 2023 to take account of time in pre-sentence custody: see DPP v Myles, unpublished, Supreme Court of the Australian Capital Territory, SCC 155, 156 of 2023, Refshauge AJ, 21 August 2023).

3․A Drug and Alcohol Treatment Order (Treatment Order) was made to enable you to serve this sentence in the community under strict supervision, with support that was intended to enable you to address your dependence on illicit substances. This dependency had substantially contributed to your offending. 

4․You did not perform well on your Treatment Order. Within two weeks of your release from custody, you were subject to a formal warning and then sanctioned for alcohol and illicit substance use (see Supreme Court of the Australian Capital Territory, Behavioural Contract Protocol – Sanctions and Incentives, 30 September 2021).

5․On 8 September 2023, you were required to serve seven days in custody because of your use of illicit substances and failure to attend a urinalysis test.

6․You returned to the community on 15 September 2023.

7․On 27 October 2023, after further sanctions for non-compliance with your Treatment Order, including for illicit substance use, dishonesty and breach of curfew, you were again returned to custody.

8․On 3 November 2023, your Treatment Order was cancelled. At the point of cancellation, Refshauge AJ found that there was no indication that you were making “any genuine attempt” to rehabilitate yourself: Transcript of Proceedings, DPP v Myles (Supreme Court of the Australian Capital Territory, SCC 155, 156 of 2023, Refshauge AJ, 3 November 2023) 4.

9․Despite this, Refshauge AJ gave you a further opportunity to progress your rehabilitation while in custody. Rather than proceeding to impose the outstanding sentence upon you or resentence you, he adjourned your sentence to enable you to apply for and then participate in the 14-week prison-based Karralika Solaris Therapeutic Community Rehabilitation Program (Solaris TC).

10․On 3 May 2024, you graduated from that program. In a letter, dated 11 July 2024, the Justice Services Case Manager of Karralika Programs says that you “worked professionally within the program and treated all participants, staff, and other members of the AMC with respect”.

11․Your achievement makes you eligible for further Karralika Therapeutic programs and support upon your return to the community. You have been assessed as suitable for the Karralika Matrix Day Program (Matrix Day Program), with a start date of 29 July 2024.

12․You have also been assessed as suitable to serve the custodial sentence by way of an intensive correction order in the community, supervised by ACT Corrective Services. Under this order, you would be subject to drug and alcohol testing and be required to participate in rehabilitation programs, including the Matrix Day Program.  

13․Your brother has offered to support you with accommodation and with employment. His home is drug and alcohol free.

14․Thanks to your hard work, and the commitment and support of others, you are in a very different situation today than when your Treatment Order was cancelled on 27 October 2023. Your progress towards rehabilitation is critical to consideration of whether your original sentence should be imposed or whether you should be resentenced to an intensive correction order: R v Tonna (No 2) [2022] ACTSC 362.

15․Your lawyer submitted that I should resentence you so that the remainder of your sentence can be served as an intensive correction order. The prosecutor acknowledged your hard work and agreed that it was open to the Court to proceed in this way.

16․I have decided that it is appropriate to resentence you as proposed by your lawyer, requiring you to serve the remaining 2 years, 7 months and 19 days from today as an intensive correction order. I will now explain why this is appropriate.

Decision to resentence

17․Because your Treatment Order was cancelled due to unsatisfactory circumstances, I must either impose the sentence that was suspended or resentence you: s 80ZE(2) of the Sentencing Act.

18․In either case, I must take account of the extent to which you have complied with the treatment and supervision part of the Treatment Order: s 80ZE(2) of the Sentencing Act.

19․The greater the degree of compliance with the treatment and supervision part of the Treatment Order, the more likely it will be that a resentence is appropriate.

20․In contrast, a high degree of non-compliance will ordinarily result in the imposition of the suspended sentence of imprisonment.

21․This approach is necessary to ensure that “current and potential participants on the Drug and Alcohol Sentencing List appreciate the privilege available to them and the likely consequences of non-compliance”: R v Cook (No 2) [2024] ACTSC 27 at [19]-[20].

22․However, though important, the degree of compliance with the Treatment Order is only one of the circumstances to consider.

23․The discretion to resentence arises where “the court considers it appropriate in the circumstances”: s 80ZE(2)(b) of the Sentencing Act. This enables a court to consider all of the circumstances that are relevant and known at the time of deciding whether to impose or resentence.

24․Mr Myles, you failed to comply with your Treatment Order. Your repeated breaches of that Order demonstrated a high degree of non-compliance.

25․Despite this, I am satisfied that the circumstances that have arisen since the cancellation of the treatment order make it appropriate to resentence you, enabling you to progress your rehabilitation in the community by serving the outstanding term as an intensive correction order. These circumstances are as follows:

(a)Since the imposition of your Treatment Order, you have spent a further 279 days in custody.

(b)Whilst in custody you have completed the 14-week Solaris TC, spending a total of approximately 6 months in that community. You have also completed various workplace and employment competency courses, taken on employment in the bakery, and have been selected as a peer mentor.

(c)You are receiving appropriate medication for your mental health and have worked with the Canberra Health Services to create a detailed Health Care Plan, setting out recovery goals, the challenges you expect to face in recovery and your strategies for meeting these challenges.

(d)You have been accepted into the community-based Matrix Day Program.

(e)You are able to live with your brother at his home, which is alcohol and drug free. He can offer you employment in his painting company, with the flexibility to ensure that you can meet your Matrix Day Program and other rehabilitation and supervision commitments. He clearly loves you and believes in you. He also has high expectations of you and wants you to commit to your rehabilitation, hold a job and remain away from those who are a negative influence on you.

26․Finally, in considering your circumstances, I have read your letter to the Court dated 11 July 2024. In that letter, you expressed shame about your offending, explained what you have done to focus on your rehabilitation since your Treatment Order was cancelled, and committed to ensuring that your future is different to your past.

27․Rehabilitation is not linear. The failure to comply with your Treatment Order was a significant backward step. However, even backward steps can be understood as a foundation for continuing to climb the mountain towards abstinence and healing. Your progress whilst in prison since the cancellation of your order demonstrates that you are ready to take the next step on your climb in the community.

Resentence

28․Your lawyer and the prosecutor agree that the original sentence imposed on you on 8 May 2023 appropriately took account of all of the relevant circumstances of the offences you committed, and of you, as the person who committed these offences: DPP v Myles, unpublished, Supreme Court of the Australian Capital Territory, SCC 155, 156 of 2023, Refshauge AJ, 21 August 2023).

29․I will not alter the length of any of your sentences. I will adjust their start and end dates to take account of the time you have served in custody.

30․In effect, I am imposing the portion of your total sentence that has not yet been served and resentencing you so that the remaining term can be served as an intensive correction order.

Pre-sentence custody

31․Prior to being sentenced on 21 August 2023, you had spent 187 days in custody. Your original sentence was backdated on that day to take account of the time you had already served.

32․In addition, you spent 7 days in custody from 8 September 2023 to 15 September 2023. You were then remanded in custody from 27 October 2023 until today.

33․In total you have spent 466 days in custody in relation to the offences. I will backdate your total sentence to commence on 9 April 2023 to take account of this period.  

Intensive correction order

34․Because what remains to be served of your 3 year and 11 months’ sentence is 2 years, 7 months and 19 days from 18 July 2024 to 8 March 2027, I must consider the matters set out in s 11(3) of the Sentencing Act before making an intensive correction order.

35․Given that you have been found suitable for an intensive correction order and that you have made significant progress towards rehabilitation, I consider it appropriate to make such an order having regard to the level of harm you caused, the risk your pose and your moral culpability.

36․Rehabilitation, where it can be achieved, provides the best protection for the community: Hogan v Hinch [2011] HCA; 243 CLR 506 at [32] (French CJ).

37․Mr Myles, in your case, I am satisfied that you have the capacity to achieve rehabilitation with the supervision and support that will be provided to you as part of an intensive correction order.

Orders

38․For those reasons, I will make the following orders:

(1)The cancellation of the Drug and Alcohol Treatment Order dated 21 August 2023 be confirmed.

(2)The conviction of Ryan Anthony Myles of burglary (CAN 1239/2022) be confirmed and he be resentenced to 9 months imprisonment commencing on 9 April 2023 and ending on 8 January 2024.

(3)The conviction of Ryan Anthony Myles of unlawful possession of stolen property (CAN 1240/2022) be confirmed and he be resentenced to 6 months imprisonment commencing on 9 October 2023 and ending on 8 April 2024.

(4)The conviction of Ryan Anthony Myles of aggravated dangerous driving (CAN 5134/2022) be confirmed and he be resentenced to 9 months imprisonment commencing on 19 October 2023 and ending on 18 July 2024.

(5)The conviction of Ryan Anthony Myles of dishonestly driving motor vehicle without consent (CAN 1037/2023) be confirmed and he be resentenced to 11 months imprisonment commencing on 18 July 2024 and ending on 17 June 2025.

(6)The conviction of Ryan Anthony Myles of aggravated dangerous driving repeat offender (CAN 1040/2023) be confirmed and he be resentenced to 19 months imprisonment commencing on 18 May 2025 and ending on 17 December 2026. It is noted that the automatic disqualification from holding or obtaining a driver’s licence remains in effect until 20 August 2024. 

(7)The conviction of Ryan Anthony Myles of drive whilst disqualified repeat offender (CAN 1036/2023) be confirmed and he be resentenced to 6 months imprisonment commencing on 9 September 2026 and ending on 8 March 2027. It is noted that the automatic disqualification from holding or obtaining a driver’s licence remains in effect until 20 August 2024.

(8)In respect of Orders 5-7, namely the offences of dishonestly driving motor vehicle without consent (CAN 1037/2023), aggravated dangerous driving repeat offender (CAN 1040/2023) and drive whilst disqualified repeat offender (CAN 1036/2023), it be directed that the sentence of imprisonment of 2 years 7 months 19 days from today be served as an Intensive Correction Order from today, 18 July 2024 to 8 March 2027.

(9)It be recommended that the Commissioner of ACT Corrective Services or his delegate responsible for the supervision of Ryan Anthony Myles under the Intensive Correction Order direct Ryan Anthony Myles as follows:

i.That he undertake any program of treatment or rehabilitation as considered suitable by the person supervising him, should a program become available to him;       

ii.That he obey all reasonable directions of the person supervising him as to with whom he associates.

39․Mr Myles, we could not celebrate your graduation from a Treatment Order. Today is, however, a day to celebrate your progress and achievement towards rehabilitation and healing. It is also a day for you to commit to continuing to climb the mountain.

40․Facing and recovering from addiction is very difficult. You know this far better than I do. It has been your lived experience. You have demonstrated that you have the strength to continue this climb. The view will be worth it. I wish you luck.

I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Hopkins.

Associate: J Liu

Date: