Director of Public Prosecutions v Payne
[2024] ACTSC 306
•8 October 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Payne |
Citation: | [2024] ACTSC 306 |
Hearing Date: | 26 September 2024 |
Reasons Date: | 4 October 2024 |
Date of orders: | 8 October 2024 |
Before: | Christensen AJ |
Decision: | See [83] |
Catchwords: | CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – act of endangering life by intentionally and unlawfully discharging a loaded arm – factual dispute as to knowledge of infant in the vehicle – seriousness of discharge of firearm in suburban location – offensive motive – inferences as to effect on victims – plea of guilty at hearing in Magistrates Court – consideration of likelihood of compliance with drug and alcohol treatment order – primacy of rehabilitation in sentencing exercise – notion of remorse – rehabilitation surest guarantor of community protection – treatment order imposed |
Legislation Cited: | Crimes Act 1900 (ACT) s 27 |
Cases Cited: | Barbaro v The Queen [2012] VSCA 288; 226 A Crim R 354 |
Parties: | Director of Public Prosecutions ( Crown) Chris James Payne (Offender) |
Representation: | Counsel M Dyason ( Crown) D Ager ( Offender) |
| Solicitors ACT Director of Public Prosecutions Peter Agoth & Associates ( Offender) | |
File Number: | SCC 157 of 2024 |
CHRISTENSEN AJ:
Introduction
1․Chris Payne is to be sentenced for an act of endangering life by intentionally and unlawfully discharging a loaded arm, being a .22 calibre rifle, at another person. The offence is contrary to s 27(3)(d) of the Crimes Act 1900 (ACT) and carries a maximum penalty of 10 years imprisonment.
2․Mr Payne seeks that the inevitable term of imprisonment that must be imposed be served by way of a drug and alcohol treatment order (treatment order): s 12A Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
Offence
3․On Thursday 25 May 2023, the victim was contacted by a male associate as to the sale of a motorcycle belonging to the victim. They arranged to meet at an address in Turner. It was also intended that the male associate would help settle a feud between the victim and Mr Payne. The victim’s understanding was that the feud was in relation to Mr Payne believing that the victim owed him money.
4․On Friday 26 May 2023 at about 3:30am, the victim attended, by vehicle, at the address with his partner and their infant child. The victim entered the residence while his partner stayed in the vehicle with their infant.
5․Upon entry to the residence, the victim believed that he could hear Mr Payne talking inside, but when he entered, the victim did not see Mr Payne and the back door had been left ajar. Their mutual associate was inside the bathroom and spoke to the victim through the door, asking him to “give him a minute”.
6․The victim walked back outside to his vehicle and spoke to his partner. His partner got out of the vehicle to tend to their child. The victim observed Mr Payne come around the corner from behind some bushes to the side of the unit. Mr Payne was with at least two other people and appeared to be holding something.
7․The facts provide that the victim suspected Mr Payne was holding a black .22 calibre rifle with a dark brown handle. He had seen the offender with this firearm before.
8․Mr Payne approached within approximately 10 meters of the victim. The victim is described as knowing something wasn’t right, and he told his partner to get back inside. She rushed back inside. The victim got into the driver’s seat and reversed out of the driveway.
9․The victim attempted to turn his vehicle around to continue driving towards a nearby street. The victim saw Mr Payne approach the vehicle, lift the firearm up with his right hand, before placing his left hand on the forearm of the firearm.
10․The victim saw Mr Payne point the firearm at the vehicle from several metres away before Mr Payne actioned it by pumping the forearm of the firearm. The victim accelerated towards the nearby street.
11․As the victim accelerated away, he heard the sound of a .22 calibre rifle fire, and he saw a flash of light emanating from the muzzle of the firearm. The round shot from the firearm ricocheted off the vehicle between the rear driver’s side window and the top of the vehicle. This caused the victim to duck, and he drove into a gutter, popping the front driver’s side tyre.
12․The victim sped off, driving to Knowles Place in Civic.
13․At about 3:41am, the victim received a call from a number he knew to be connected with Mr Payne. The victim recorded the call. The following exchange can be heard:
Victim’s partner My [child] was in the fucking car and you want to fucking shoot at it
Offender I apologise, I apologise
14․Later in the recording, the following exchange can be heard:
Offender Stay the fuck out of it, it’s none of your business is it
Victim’s partner Well it is when you fucking shoot at the car with me and my fucking child in it
Offender Oi, is there anything in the car? No
Victim’s partner What?
Victim Excuse me Chris? What?
OffenderWake the fuck up, wake the fuck up, next time if I do, I won’t fucking miss you got me cunt
15․The facts provide that during the conversation, Mr Payne demanded the victim pay him the money he owed him and asked him to come and speak with him in person.
16․At about 4:10am, the victim and his partner entered the Canberra City Police Station and reported the incident to police. Police inspected their vehicle and observed a dent above the rear driver side window, consistent with a projectile ricocheting off of the vehicle. A subsequent forensic analysis of the dent where the projectile struck established there was lead, consistent with a bullet ricocheting off of the vehicle.
17․Immediate investigations by police were unsuccessful in locating Mr Payne or the firearm.
Factual finding as to knowledge of infant
18․It was submitted on behalf of Mr Payne that the Court cannot, or at least ought not, sentence him on the basis that he had actual knowledge that the infant was in the vehicle at the time he discharged the firearm. The prosecution accepted that this may not be a finding the Court could make beyond reasonable doubt.
19․The extent of evidence relied upon as to any knowledge of this are the representations to the victim’s partner made by Mr Payne during the phone call shortly after the offence. It was submitted that these representations may be, by inference, demonstrative of Mr Payne’s knowledge that an infant was in the car in that the offender’s response is not one of shock or surprise. Further, that there is an implicit acceptance of the fact of the presence of the child, with Mr Payne having responded with either an apology or a potential attempt to justify his conduct.
20․I do not accept that an inference can be drawn from the representations that Mr Payne had knowledge of the infant’s presence in the vehicle. The representations he made afterwards are not necessarily an acknowledgment of this with them being equally consistent with an apology offered upon being informed of the child’s presence. A not unreasonable inference also available from the circumstances of the offending, in particular the time and the reason for the victim’s attendance at the location, is that Mr Payne would not have had an expectation that there was an infant in the car.
21․I am though satisfied that the agreed facts establish on the balance of probabilities that the offender must have known that there was at least one other occupant given Mr Payne’s proximity to the vehicle as the victim’s partner was returning inside of it. Mr Payne was at least reckless as to there being other occupants of the vehicle beyond the primary victim.
Nature and circumstances
22․While there is nowhere that offending conduct of this type should occur, for it to occur in a high-density suburban setting must be regarded as a serious aspect to the offending. It not only endangered the victim’s life in accordance with the acceptance of the elements of the offence, but the nature and circumstances of the offending involved causing likely alarm, and potential physical harm, to other community members.
23․I accept what was submitted on behalf of Mr Payne that the time of the morning when the offending occurred meant there was a reduced likelihood of physical harm to other community members, at least in terms of people moving about on the street. However, this does little to reduce the seriousness of this aspect given there was an increased likelihood of community members being woken by the discharge, causing them alarm and distress. And there was, as the prosecution submitted, an increased likelihood that had the projectile come to go through a wall or window of a nearby house, an occupant would have been present and potentially physically harmed.
24․The prosecution also submitted that there was a degree of planning involved in the offending. The prosecution describes the planning as involving the victim having been lured to the location on the pretext of the sale of a motorbike and with a purpose to settle the feud. It was submitted that when the victim arrived, he was confronted by the offender and two others, and that at this time the offender was in possession of the firearm.
25․I do not accept that there was a ‘luring’ of the victim in the sense contended as there is nothing in the agreed facts that informs as to whether there was a genuine intention as to the sale of a motorbike. Nonetheless, it is apparent on the facts that Mr Payne, without himself directly engaging with the victim prior to discharging the firearm, committed the act. To this extent, there was an element of planning and an apparent degree of pre-meditation as to at least confront the victim with the firearm, one that was armed and capable of being discharged, and that ultimately was. The actual discharge may have involved an aspect of spontaneity. It was fortunately only a single discharge of the firearm that did not cause any physical harm to any persons.
26․The prosecution further submitted that the motivation for the offending, being an ongoing feud, is an aggravating feature, with reliance on what was said by Penfold J R v Pattman [2017] ACTSC 331 (Pattman). In Pattman her Honour cited Yammine v The Queen [2010] NSWCCA 123 in which the NSW Court of Criminal Appeal held that having a defensive motive for possession of a firearm is not a mitigating factor, and her Honour observed that an offensive motive for possession of a firearm “might be an aggravating factor” (at [47]).
27․The motivation for possession of a firearm has been held by the NSW Court of Criminal Appeal as being relevant to the assessment of the objective gravity of the offence and the moral culpability of the offender: Sumrein v The Queen [2019] NSWCCA 83. None of these authorities assist directly as to the role of motivation in assessing the form of offence here.
28․I accept that the conduct that occurred here was in the nature of an offensive motive, rather than a defensive one. There was an intentional and deliberately targeted discharge of the firearm towards the vehicle in circumstances of an ongoing dispute. Whether this requires characterisation of the motivation here as an aggravating feature is not necessary to resolve. This is particularly so given the Sentencing Act in this jurisdiction does not prescribe factors of aggravation or mitigation that must be taken into account but rather sets out the matters that must be considered where they are relevant and known to the Court: s 33 Sentencing Act. It suffices to observe that the nature and circumstances of the offending were such that it was an offence of high objective seriousness, committed by an offender with, subject to what is observed below, a high level of moral culpability.
29․For the offender to have done this in a circumstance where there was an infant in the vehicle, even if this was not known to him, is particularly concerning. This aspect highlights the serious level of harm that offending behaviour of this type may occasion. Endangering the life of an individual, in circumstances where others were exposed to the conduct establishing the offence, must be met with a stern sentence that reflects the sentencing purposes of deterrence, accountability, and community protection.
Effect on the victim
30․The sentence to be imposed must also reflect the sentencing purpose of recognising the harm done to the victim and the community: s 7 Sentencing Act. The Court is to have regard to the effect of the offence on the victims that is known to the Court: s 33(1)(f) Sentencing Act.
31․The prosecution submitted that the Court would infer that the victim and his partner would have experienced a level of emotional and psychological injury. On behalf of Mr Payne, it was cautioned that the Court not draw conclusions to this extent, in the absence of evidence establishing psychological sequelae.
32․This was, appropriately, not a submission that the Court draw any inference about the harm from the absence of victim impact statements: s 53(1)(b) Sentencing Act. Nor was it, appropriately, a submission that the Court cannot draw reasonable inferences as to the effect of the offence. There can be no doubt that the Court is entitled to draw reasonable inferences from what is known to the Court as to the effects of the offence on victims and on the community: R v Miller (1995) 2 VR 348, applied in, for example, R v Childs [2021] ACTSC 170 at [10].
33․Here, it can reasonably be inferred that the incident was a frightening one that caused immediate distress. It would have been distressing to be pursued by the offender and to have a firearm discharged at, and hit, the vehicle. The effects from that distress would likely have been felt for some time.
34․The agreed facts include that the victim responded to the discharge by ducking. It is readily inferable that the victim experienced immediate fear and alarm given his response to the discharge of the firearm. This response in itself caused damage to the victim’s vehicle, along with the damage caused to the vehicle from the projectile itself. Further, it can reasonably be inferred that any community members who heard or saw the incident will have been alarmed, although I accept that there is no information to suggest that other community members were so affected.
Subjective circumstances
35․Mr Payne is now 37 years of age and was aged 36 years at the time of the offending. [Redacted]. His mother experienced substance dependency issues and was tragically murdered in 2006. He has no contact with his father. He has a number of siblings with whom he has limited contact. Mr Payne’s grandfather died when he was aged seven, and his grandmother has been diagnosed with cancer and he is unsure how much longer she will live.
36․In addition to his challenging family circumstances, Mr Payne describes a difficult upbringing, having been born opiate addicted due to his mother’s substance use. He had challenges in school, and left at the age of 14 years and commenced a roof tiling apprenticeship. To his credit, Mr Payne has worked consistently as a roofer when in the community, and has his own business in this field.
37․When in the community, his work occupies much of his time and he describes not having much time for socialising. He acknowledges having both positive and anti-social influences. He has previously had long-term partners. He has an adolescent daughter that lives with her mother in Sydney and with whom he has not had contact for some time.
38․Mr Payne reported a history of problematic alcohol use, drinking to intoxication daily between the ages of 17 and 25 years. He ceased chronic alcohol use after the death of a friend in a motor vehicle accident, and only consumes alcohol at significant events in social settings.
39․From the age of 18 years he has used methamphetamine, after being introduced to the substance by a previous employer. He initially used recreationally, but increased to daily use at the age of 20 years. His use has been, on his description, up and down since then, with a period of abstinence from the age of 24 to 26 years. Prior to his most recent remand in custody, he was experiencing stress and homelessness which contributed to his relapsing.
40․Mr Payne reports long term mental health issues, understanding that he has been diagnosed with anxiety, depression, borderline personality disorder, attention deficit disorder and obsessive compulsive disorder. He has recently commenced medication and treatment.
Criminal history
41․Mr Payne has an extensive criminal history, one that derives from Queensland, NSW, and the ACT. He has been previously convicted, and imprisoned, for offences inclusive of violence, driving, stalking, contravention of a protection order, failure to appear, and minor drug offences. There are no previous offences of the type the subject of sentence, although in NSW he has been fined for firearm related offences. He has previously breached a parole order in ACT for failing to attend appointments and failing to live at his approved accommodation.
42․His criminal history does not permit leniency, and emphasises the need for community protection in the sentence to be imposed. It warrants observing though that Mr Payne’s criminal history does reflect periods without offending, and in particular, that during the time he was abstinent from drugs from 24 to 26 years, there is a corresponding period without offending behaviour.
43․In speaking with Corrective Service report writers in early 2024, Mr Payne is described as reflecting on his history of driving offences and as describing that he has been making an effort to avoid further driving related charges. His criminal history reflects that he was last convicted of a driving offence in 2021, this being his last occasion before the courts prior to the offence now the subject of sentence.
Plea of guilty
44․A plea of guilty was entered on the first day of a hearing listed in the Magistrates Court. The matter then came to be committed for sentence in the Supreme Court.
45․While ordinarily a plea of guilty entered in the Magistrates Court prior to committal to the Supreme Court might readily attract a reduction on sentence in the order of 25 percent, there is clearly a distinction when it is a plea of guilty at a hearing stage in that Court. A plea of guilty at that stage does not reflect full utilitarian value for the justice system as it required the preparation and resources necessary for a hearing, and the involvement of witnesses, up to the late stage.
46․Accordingly, while the plea of guilty was entered in the Magistrates Court, it was not one that can attract a reduction that might otherwise be accorded by the Supreme Court for a plea at that stage in the criminal justice system. I consider a reduction in the order of 15 per cent is appropriate.
Remorse and insight
47․As to whether Mr Payne exhibits remorse and insight in relation to the offending, the prosecution submitted that the Court would not be satisfied that a depth of remorse is demonstrated. While it was accepted that he demonstrates insight, it was submitted that Mr Payne engages in “victim blaming”.
48․The information before the Court includes that Mr Payne reports heavy methamphetamine use at the time of the offence and that he believes he would have handled the situation differently if not affected by illicit substances. He spoke of there being an altercation with the victim which had begun in the days leading up to the offence and that he tried other means to resolve the dispute. He expressed to report writers his disappointment in himself for his behaviour. He described being upset at media reporting and his family finding out about the offending. A previous report describes that while Mr Payne claimed to feel bad about this behaviour, he also attempted to minimise the offence by claiming the victim had threatened him.
49․I accept that immediately after the offence the offender did not display a depth of remorse or insight. While there was an apology offered, the extent to which this can be said to be genuine is dissipated by what was said soon after. Since then, as submitted on Mr Payne’s behalf, his substance dependency challenges, and mental health, have improved. It was submitted that his thinking has become clearer, and his insight crystallised.
50․It is helpful to consider what is meant by remorse in this context. Acting Justice of Appeal Simpson in Brzozowski v The King [2023] NSWCCA 129 explained at [3] that:
It is well established that remorse is available to be taken into account as a mitigating circumstance in sentencing. That has long been the case, and, although it is not always so expressed, the rationale must be that remorse (genuine remorse) is indicative of rehabilitation and the unlikelihood of further offending. If that is not so, it is difficult to see what relevance remorse has in the sentencing process.
(Citations omitted.)
51․Her Honour observed (at [6]) what was said by Brereton JA in Patel v the Queen [2022] NSWCCA 93; 366 FLR 314 at [41], citing the Victorian Court of Appeal in Barbaro v The Queen [2012] VSCA 288;226 A Crim R 354 at [36] and [38], that remorse is concerned with the attitude of an offender after the event, and it involves genuine regret. There is a distinction to be:
[D]rawn between the anguish of being caught and punished, on the one hand, and – on the other – the determination to change one’s behaviour and, to the extent possible, make amends. The first is not remorse at all. The second is.
52․Further that:
[A] person wishing to rely on remorse as a mitigating factor needs to satisfy the court that there is genuine penitence and contrition and a desire to atone.
53․Here, it is clear that Mr Payne has regret for the consequences that his offending behaviour has had on him and his family. In addition, he also demonstrates a level of remorse in that he expresses some appreciation for the wrongness of his conduct and sorrow for what occurred to the victim. Mr Payne is reported as saying “I’m just sorry it happened … I’m very sorry. I’m embarrassed and disgusted and the worst part is that I can’t take it back … it was a silly mistake and I’m sorry for the altercations. I feel bad about the whole thing, for the victim, myself, and my family”. Mr Payne otherwise expressed goals that are directed towards addressing his substance use and offending behaviour (see further below at [77]).
54․I am satisfied that Mr Payne displays a level of genuine remorse that is informative in considering the sentencing purpose of promoting rehabilitation.
Time in custody
55․Mr Payne has been remanded in custody from the date of arrest on 14 June 2023 solely in relation to the offence. A total period of 483 days is to be taken into account on the sentence to be imposed: s 63 Sentencing Act.
Current Sentencing Practice
56․The prosecution helpfully provided a number of authorities relevant to current sentencing practice, acknowledging the limitations that such authorities provide. I have considered the authorities, and the comparable authorities cited therein: R v Cunningham (No 3) [2021] ACTSC 326; R v Sidaros (No 6) [2021] ACTSC 24; R v Sharp [2019] ACTSC 175; Pattman; and R v Stott [2017] ACTSC 248.
57․The authorities provided involve more serious examples of this form of offending, which the prosecution conceded. In those matters there were multiple discharges of the firearm, examples where the victim was struck by the projectile, and offending occurring in the context of outlaw motorcycle group attacks or drive-by shooting circumstances. Imprisonment terms from 3 years and 4 months through to 4 years and 4 months were imposed.
58․The prosecution additionally referred the Court to R v Fairclough (No 2) [2020] ACTSC 134 but I find it to be of little comparative assistance as it involved the infliction of multiple stab wounds and an offence pursuant to s 27(3)(c) of the Crimes Act.
Consideration
59․This was serious offending that involves concerning aspects. It was deliberately done with full knowledge of there being multiple occupants of the vehicle. There was an apparent level of planning, and Mr Payne has, with little warning and while armed, approached towards the victim and his vehicle and fired a gun. Whether there was an explanation for this conduct, in Mr Payne’s mind at least, does little to mitigate or reduce the seriousness of the offending.
60․Mr Payne’s subjective circumstances, in particular those of his childhood, do warrant the application of the Bugmy v The Queen [2013] HCA 37; 249 CLR 571 principles. The prosecution supported this. That is, that Mr Payne’s childhood circumstances are acknowledged as being such that his moral culpability for his offending behaviour as an adult is reduced. The effects of his disadvantage in childhood do not diminish over time and are to be given full weight, even where, as here, there has been an escalation in the seriousness of Mr Payne’s offending behaviour.
61․Nonetheless, it is plain that the objective seriousness of the offending is such that, having considered possible alternatives, no penalty other than imprisonment is warranted.
62․The prosecution submitted that the sentencing purposes of deterrence, accountability, denunciation, recognition of harm, and ensuring adequate punishment ought to take primacy over sentencing purposes of promotion of rehabilitation and protection of the community.
63․I find it difficult to reconcile the position of the prosecution as to community protection. I infer there is an implicit acknowledgment that “rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest”: Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]. That is, the prosecution appears to be, appropriately, acknowledging that a sentencing exercise that gives primacy to rehabilitation is one that does not necessarily only entail fulltime imprisonment as a mechanism of community protection.
64․The prosecution otherwise submitted that the Court would be cautious as to Mr Payne’s capability to comply with a community based order, noting his lack of compliance with conditional liberty, good behaviour orders, his behaviour while in custody, and that his risk of reoffending is such that he is described as needing a “high level of supervision”. A previous report describes that Mr Payne “continues to display contradictory behaviour, making it difficult to gauge his attitude towards genuinely changing his life”.
65․Mr Payne is clearly someone who has demonstrated challenges of compliance with community based orders, albeit in a context of entrenched drug dependency. And he is described as displaying negative behaviours while in custody, conduct that has resulted in warnings and disciplinary action. But he is also described as displaying positive behaviours while in custody, with it reported that his attitude and behaviour have improved over time. He is employed in the kitchen at the Alexander Maconochie Centre (AMC) and is described as consistently receiving positive feedback regarding his attitude and work ethic. He has obtained qualifications towards a Certificate III in Hospitality.
Treatment order
66․In circumstances where Mr Payne seeks a treatment order, it is appropriate to firstly consider preliminary matters of eligibility per s 12A of the Sentencing Act. That is, Mr Payne has pleaded guilty to an eligible offence and the term of imprisonment to be imposed will be one that is within the statutory span that enlivens a treatment order: s 12A(1)(a)(b)(i) Sentencing Act. He is not subject to a sentencing order for another offence: s 12A(1)(c) Sentencing Act.
67․I am also satisfied, on the balance of probabilities, that Mr Payne is dependent on a controlled drug and his dependency substantially contributed to the commission of the offence: s 12A(2)(a)(i), (ii) Sentencing Act. He has given informed consent to such an order after the necessary pre-conditions for this were met: s 12A(2)(c) Sentencing Act.
68․It seems to me that the Court has a choice between imposing a nonparole order on Mr Payne, one that would be of such a period that there would be a limited period of supervision of him in the community upon release. Or, to make a treatment order. This will enable lengthier, and more onerous demands, in terms of the supervision and rehabilitation expectations.
69․The issue is whether Mr Payne is suitable for a treatment order, and whether such an order is appropriate, having regard to, amongst other matters, the caution as to rehabilitation prospects that the prosecution submitted was necessary.
70․An order that involves a part of Mr Payne’s term of imprisonment being served by way of a treatment order warrants careful consideration with it appropriate that there be a level of hesitation to make such an order. Mr Payne’s criminal history is one that demonstrates defiance of the law, and court orders, and his offending behaviour on this occasion is a further example of this.
71․His subjective background also does not enable significant confidence as to his willingness and capability to engage with a treatment order. He has a background of trauma, mental health, and substance dependency challenges that do not provide a solid foundation to achieve rehabilitation.
72․Equally though, Mr Payne’s subjective circumstances tend towards him being a potential participant for a treatment order having regard to the objects of such an order. Section 80O of the Sentencing Act provides these objects, namely:
(a)facilitate the rehabilitation of the offender by providing a judicially supervised, therapeutically oriented and integrated treatment regime; and
(b)reduce the offender’s dependency on alcohol or a controlled drug; and
(c)reduce the health risks associated with the offender’s dependency on alcohol or controlled drug; and
(d)assist with the offender’s integration into the community; and
(e)promote community safety by reducing the level of criminal activity caused by alcohol or controlled drug dependence in offenders.
73․Whether Mr Payne is someone that has a genuine intention, motivation, and capability, to achieve these objectives becomes the relevant issue. I am, with some hesitation, satisfied that he does. There are indications of prospects of rehabilitation, such as his remorse, his lack of offending when abstinent, and the examples of positive and prosocial behaviour that he does demonstrate, that give an appropriate level of confidence as to this.
74․He has not previously engaged with treatment for substance use, beyond courses he has participated in while in custody, and some limited counselling in the community. While in custody, Mr Payne has commenced opioid maintenance therapy, and he intends to continue accessing this treatment in the community. He returned a negative result from urinalysis drug testing conducted in early 2024.
75․He has made efforts to engage with rehabilitation services while in custody, and previously, made contact with the Canberra Recovery Hub with a view to engaging with that program once in the community. In the process of assessment for a treatment order, Canberra Recovery Services have found Mr Payne to be suitable, and have a place available for him with a residential rehabilitation program. There is a prospect of transitional housing with that program upon successful completion of the program. Mr Payne has otherwise applied for various accommodation options.
76․Despite these favourable matters, a hesitation does exist from Mr Payne’s failure to engage with Corrective Services for the purposes of assessment with that service for a treatment order. This does not bode well for his willingness to engage with supervision requirements of such an order. The Corrective Services assessment report dated 5 September 2024 provides that two attempts were made to engage with him. On one occasion, AMC staff were unable to facilitate the appointment. One the second occasion, it is reported that Mr Payne failed to attend and that the Correctional Officer advised the reason for the non-attendance was that “Mr Payne refused to attend”. At the sentence hearing, the Court was informed that Mr Payne misunderstood the requirement to attend given he had otherwise engaged with ACT Health Services for the purposes of their assessment.
77․Notably, Corrective Services did consider information that was otherwise known to the service and did not find Mr Payne unsuitable for a treatment order. The report provides that the service was, understandably, unable to provide a complete report.
78․In contrast, the ACT Health Services assessment found Mr Payne to be someone who “actively and appropriately participated in the assessment process”. These assessors had the opportunity to engage directly with Mr Payne and it is reported that Mr Payne has motivating factors to rehabilitate. This includes to reconnect with his daughter, to stop “self-sabotaging” his life, to see his family, and to develop insight into himself. Mr Payne is reported as saying “I don’t want to come back to jail ever again. I want to fix myself and I don’t want to be like this anymore”.
79․ACT Health Services do raise a concern as to Mr Payne’s suitability for a treatment order given his lack of long-term secure housing. A release onto a treatment order does, in Mr Payne’s circumstances, come with a risk of insecurity as to his future housing situation. There is though no concern that he does not have an intention to reside in the ACT, fulfilling the requirements of s 12A(2)(a) (iii) of the Sentencing Act, and he has accommodation available in the short term. Once he is able to resume employment, Mr Payne anticipates applying for private rental properties. I am satisfied that his housing situation is not a factor that should preclude Mr Payne from a treatment order.
80․Nonetheless, conscious of the hesitation that remains, I have given careful consideration to the role of community protection in the sentencing exercise, and the decision whether a treatment order is appropriate in such circumstances. I conclude that while enduring community protection cannot be guaranteed, as it never can be in any sentencing exercise, there is a circumstance arising here that warrants enabling Mr Payne the opportunity of a treatment order such that community protection is facilitated to an acceptable degree.
81․This circumstance is the high intensity supervision that a treatment order involves, which will be at a level that Mr Payne has not previously had the opportunity to engage with, or to embrace. The surest protection of the community is ultimately rehabilitation. A treatment order will provide Mr Payne, and the community, with such an opportunity. Mr Payne is someone who plainly has entrenched substance dependency and someone who reflects the very intention of the legislature in having a treatment order available for some offenders. It will be for Mr Payne to embrace the opportunity, and privilege, that a treatment order provides. He can expect that if he does not do so, little, if any, further leniency will be afforded.
82․Having regard to all of the information available to the Court, I am satisfied that Mr Payne is eligible and suitable for a treatment order (ss 80S, 80T Sentencing Act), it is the order that is appropriate (s 12A(2)(b)(i)-(iii) Sentencing Act), and it is the order that best fulfills the purposes of sentencing.
Orders
83․For those reasons the following orders are made:
(1)Chris James Payne be convicted of discharge loaded arms at person (CAN 6012/2023) and sentenced to 2 years, 6 months, 18 days imprisonment, reduced from 3 years imprisonment on account of his plea of guilty, commencing on 14 June 2023 and ending on 31 December 2025.
Drug and Alcohol Treatment Order
(2)A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Chris James Payne in respect of the eligible offence set out in Order 1, of which Chris James Payne has been convicted and for which he has been sentenced for a total term of 2 years, 6 months, 18 days imprisonment.
(3)The Drug and Alcohol Treatment Order be for 1 year, 2 months, 24 days, to commence on 8 October 2024 and end on 31 December 2025.
(4)The Custodial Part of the Drug and Alcohol Treatment Order for the eligible offence here be suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from 8 October 2024 to 31 December 2025.
(5)The Treatment and Supervision Part of the Drug and Alcohol Treatment Order be for 1 year, to commence on 8 October 2024 and end on 7 October 2025.
(6)Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), Chris James Payne be required to sign an undertaking to comply with the offender’s Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Treatment and Supervision Part of the Drug and Alcohol Treatment Order, 8 October 2025, until the end of the total sentence, 31 December 2025, with a probation condition that he accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him.
(7)For the Treatment and Supervision Part of the Drug and Alcohol Treatment Order:
(a)The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed;
(b)Chris James Payne undertake any program, treatment or counselling, alcohol and drug testing or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where he resides, with whom he associates and his attendance at court from time to time;
(c)Chris James Payne not return a positive test sample under alcohol and drug testing;
(d)Chris James Payne not consume or use alcohol, cannabis, illicit drugs and prescription drugs not prescribed to him; and
(e)Chris James Payne comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.
(8)Chris James Payne be directed to sign a sealed copy of this Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this Order is in force before he leaves the Court precincts.
(9)Chris James Payne be directed to appear in person or via electronic means for DASL review in Court at 12:30am on Friday, 11 October 2024.
| I certify that the preceding eighty-three [83] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen Associate: Date: |
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