Director of Public Prosecutions v Reid (No 2)

[2024] ACTSC 350

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Reid (No 2)

Citation: 

[2024] ACTSC 350

Hearing Dates: 

31 October – 1 November 2024

Decision Date: 

1 November 2024

Reasons Date:

5 November 2024

Before:

Taylor J

Decision: 

(1)    The ICO imposed on 28 April 2021 is cancelled.

(2)    The offender is to serve the remainder of the sentence in full-time detention to commence on 1 November 2024 and expire on 16 March 2025.

(3)    The non-parole period is to commence on 28 April 2021 and expire on 27 July 2023.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of ICO – commission of further offences – whether cancellation of the ICO is not in the interests of justice – positive engagement while in custody – ICO cancelled – non-parole period set

Legislation Cited: 

Bail Act 1992 (ACT) s 49

Crimes (Sentence Administration) Act2005 (ACT) ss 42(1)(a), 65, 80

Crimes (Sentencing) Act 2005 (ACT) s 65(1)

Crimes Act 1900 (ACT) s 116(3)

Public Order (Protection Of Persons And Property) Act 1971 (Cth) s 11(1)

Cases Cited: 

DPP v McIntosh(No 3) [2022] ACTSC 348

R vFolauhola [2024] ACTSC 87

Parties: 

Director of Public Prosecutions ( Crown)

Jason Adam Reid ( Offender)

Representation: 

Counsel

E Wren ( DPP)

E Wallis ( Offender)

Solicitors

ACT Director of Public Prosecutions

Legal Aid ACT ( Offender)

File Number:

SCC 196 of 2020

TAYLOR J:

Introduction

1․The offender, Jason Adam Reid, was sentenced by Elkaim J on 28 April 2021.  The following sentence orders were made: 

(a)Receiving stolen property (CC5933/2020): imprisonment for 9 months (reduced from 12 months) to commence on 28 April 2021 and end on 27 January 2022.

(b)Attempt minor theft (CC8609/2020): imprisonment for 4 months (reduced from 6 months) to commence on 28 April 2021 and end on 27 August 2021.

(c)Three counts of trespass (CC8610/2020, CC6154/2020 and CC6206/2020): a fine of $750 for each offence (making a total of $2,250) to be paid within 12 months.

(d)Theft (CC6153/2020): imprisonment for 2 years (reduced from 2 years and 6 months) to commence on 27 November 2021 and end on 26 November 2023.

(e)Theft (CC6205/2020): imprisonment for 2 years (reduced from 2 years and 6 months) to commence on 27 November 2022 and end on 26 November 2024.

(f)Burglary (CC8613/2020): imprisonment for 6 months (reduced from 7 and a half months) to commence 28 July 2024 and end on 27 January 2025.

(g)The total period of imprisonment is 3 years and 9 months to commence on 28 April 2021 and end on 27 January 2025.

(h)The above imprisonment is to be served by way of an Intensive Correction Order.

2․The overall effect of the sentences imposed was a period of imprisonment set to expire on 27 January 2025, to be served by way of an Intensive Correction Order (ICO).  The offender committed fresh offences in 2023 (the fresh offences) which saw him committed to this Court for consideration of whether the ICO imposed in April 2021 by Elkaim J should be cancelled.  On 1 November 2024 I cancelled the ICO and reserved my reasons.  These are those reasons. 

Background

3․The fresh offences were committed on 16 and 27 June 2023.  A review of the bench sheets from the ACT Magistrates Court for those offences revealed that the offender failed to appear in relation to the fresh offences on 1 August 2023.  This generated a further charge of failing to appear.  The charge alleging the failure to appear is currently particularised as having occurred on 1 August 2022, which is an error.  It is of no real moment for the purposes of these proceedings, but the error will require amendment in the Magistrates Court. 

4․The offender was remanded in custody on 30 August 2023 in relation to the fresh offences after he was arrested in Queensland on 28 August 2023 and extradited to the Australian Capital Territory (ACT).  The offender entered pleas of guilty to several of the fresh offences in the Magistrates Court and on 13 August 2024 the offender was found guilty of those fresh offences and convictions were recorded.  The fresh offences are listed for sentence in the Magistrates Court on 27 November 2024.  They are:

(a)CC2023/6268: Aggravated destroy or cause damage to property involving family violence contrary to s 116(3) of the Crimes Act 1900 (ACT) (the Crimes Act), an offence that occurred on 16 June 2023 with a maximum penalty of 3 years of imprisonment, 60 penalty units or both. 

(b)CC2023/6269: Trespass on premises contrary to s 11(1) of the Public Order (Protection Of Persons And Property) Act 1971 (Cth), an offence that occurred on 16 June 2023 with a maximum penalty of 10 penalty units.

(c)CC2023/7896: Aggravated destroy or cause damage to property involving family violence contrary to s 116(3) of the Crimes Act, an offence that occurred on 27 June 2023 with a maximum penalty of 3 years of imprisonment, 60 penalty units or both.

(d)CC2023/8544: Failure to appear after bail undertaking contrary to s 49 of the Bail Act 1992 (ACT), an offence that occurred on 1 August 2022 with a maximum penalty of 2 years of imprisonment, 200 penalty units or both.

5․The offender, having been convicted of offences punishable by terms of imprisonment, is in breach of the ICO imposed by Elkaim J on 28 April 2021: s 42(1)(a) Crimes (Sentence Administration) Act2005 (ACT) (the CSA Act).

6․The fresh offences were also committed in breach of a New South Wales (NSW) parole order which the offender was subject to after a sentence of imprisonment was imposed on him in NSW in December 2021.  The parole order was registered in the ACT on 7 November 2022 and has since expired (on 15 August 2024). 

7․The Sentence Administration Board (SAB) cancelled the offender’s ICO, and indeed the transferred parole order, on 31 August 2023.  This occurred after the offender was charged with the fresh offences and after the offender had returned a positive urinalysis result.  The cancellation of the ICO by the SAB saw the offender serving the sentence imposed on 28 April 2021 by way of full-time imprisonment until the expiration of the sentence. 

8․I note here that the sentence of imprisonment was set to expire on 27 January 2025. Pursuant to s 80 of the CSA Act the effect of the offender being the subject of a warrant issued by the SAB on 12 July 2023 was an automatic extension of the sentence.  Consequently, the sentence now expires on 16 March 2025.  The SAB is to hear an application by the offender for reinstatement of the ICO on 5 December 2024. 

9․Notwithstanding that the SAB cancelled the ICO in August 2023, the breach of the ICO was properly committed to this Court, the sentencing court, for the purposes of s 65(4) of the CSA Act. 

Cancellation of the ICO

10․The first point to address is the cancellation of an ICO that has already been cancelled by the SAB.  A point that has been considered by Mossop J in DPP v McIntosh(No 3) [2022] ACTSC 348 (McIntosh) at [5]-[6]:

5. The position is, therefore, one in which an offender is committed to this court in order to cancel an intensive correction order which has already been cancelled. The drafting of the legislation does not appear to contemplate this circumstance. It therefore does not explain how, logically, an intensive correction order which has already been cancelled may be cancelled again. Yet, there is a difference in the consequences of cancellation of an intensive correction order by the Board under s 64 of the Crimes (Sentence Administration) Act and cancellation by the sentencing court under s 65 of the Crimes (Sentence Administration)Act. That is because a Board cancellation may be undone by the Board itself after the offender has served at least 30 days of the sentence by full-time detention: s 73. That does not apply in relation to a cancellation by the sentencing court.

6. Notwithstanding the logical difficulty with cancelling an intensive correction order that has already been cancelled, having regard to the different consequences of cancellation by the Board and cancellation by the sentencing court it is the least undesirable interpretation of the legislation to treat it as permitting cancellation by the court of an intensive correction order previously cancelled by the Board. I observe that similar issues arise in relation to cancellation of good behaviour orders which have already expired and the difference between the legislative simplicity and the messiness of reality may need to be considered by the legislature at some stage.

11․For the reasons explained by his Honour, I intend to follow the course adopted in McIntosh.  I echo the conclusion expressed as to the need for legislative reconsideration of some of the provisions that prescribe the regime that governs ICOs. 

12․Section 65(2) of the CSA Act provides that where a person has been convicted or found guilty of an offence committed after a person has been sentenced to an ICO, the sentencing court must cancel the ICO as soon as practicable unless cancellation is not in the interests of justice. 

13․Upon cancellation of the ICO the court must order that the remainder of the sentence be served in full-time detention: s 65(2)(b) CSA Act. 

14․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 ICO is in the interests of justice:

(a) Where the term of the ICO 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 ICO 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].

15․Ultimately, the offender did not resist the cancellation of the ICO.  In view of the conduct of the offender in the lead up to the SAB cancellation in August 2023, I agree that there is no basis to determine that cancellation of the ICO is not in the interests of justice.  I have formed that view taking into account the following circumstances.

16․The offender’s compliance with the ICO when it was operating was limited, noting that he committed the fresh offences in breach of the ICO and bail conditions, as well as returning a positive urinalysis.  Further, the offender failed to appear at a SAB hearing and a warrant was issued for his arrest; the offender absconded to Queensland and was extradited back to the ACT on 29 August 2023 and has since been remanded in custody. 

17․The period of ‘compliance’ demonstrated by the offender in the period since the ICO was imposed in April 2021 and prior to the August 2023 remand, must be assessed considering the nine months he spent in custody in NSW for separate offending from 14 December 2021 until he was granted parole on 14 September 2022 and returned to the ACT. 

18․I acknowledge that the offender appears to have engaged well since his remand in custody.  He has been employed as a sweeper.  The offender has returned negative urinalysis results on two occasions in October 2024.  He has been receiving Buvidal injections for the last four months and has been engaging enthusiastically in various educative and health programs including in relation to drug rehabilitation.  The offender received a commendation for outstanding work performance as well as a pay increase.  The offender has been referred to Relationships Australia.  The offender has attended several counselling sessions via an audio-visual link with this service and through an AMC family worker.  The offender has been placed on a waitlist for counselling with EveryMan Australia and has also been found suitable for temporary Justice Housing when he is released from custody.  The author of an intensive correction order assessment report completed in October 2024 considered the offender suitable to be released on another ICO. 

19․Notwithstanding the efforts the offender has demonstrated while in custody, and consistent with the position adopted by him in these cancellation proceedings, I am not satisfied in the circumstances that it is not in the interests of justice to cancel the ICO.  Accordingly, I must cancel the ICO. 

20․The term of the ICO has not yet ended.  On 31 August 2023 the SAB cancelled the offender’s ICO and the parole order transferred from NSW.  The cancellation of the offender’s ICO and parole resulted in him being required to serve the following terms of imprisonment:

(a)The remaining 1 year, 6 months and 16 days on the ICO, commencing 31 August 2023 and ending 16 March 2025.  The offender still has the remaining balance to serve if the Court determines to cancel the ICO. 

(b)The remaining 11 months and 16 days of the term of imprisonment on which he was released to parole.  The term of imprisonment ended on 15 August 2024. 

21․The original sentence imposed in April 2021 to be served by ICO was for a total period of 3 years and 9 months of imprisonment. This is a total period that would ordinarily require the imposition of a non-parole period: s 65(1) of the Crimes (Sentencing) Act 2005 (ACT) (the Crimes Sentencing Act). 

22․Section 65(5) of the CSA Act provides that where an ICO is cancelled, the effect of which is an order directing that the offender serve the remainder of the sentence by full-time detention, the court may impose a non-parole period.  The court must state when the period of full-time detention starts and ends and may set a non-parole period for the period of full-time detention if—

(i) the sentence of imprisonment for which the intensive correction order was made is more    than 12 months; and

(ii) the period of full-time detention is more than 30 days.

23․In this instance, both circumstances at (i) and (ii) exist.  The remainder of the sentence that the offender was liable to serve in full-time detention arising from the cancellation of the ICO on 1 November 2024, was 4 months and 16 days of imprisonment.  If I do not set a non-parole period this will see the offender potentially released on 16 March 2025, having been in full-time imprisonment since August 2023, without the usual transitional parole supports provided to those who have spent significant periods in full-time imprisonment.  I do not consider that such a situation would be in the offender’s or the community’s interest, especially in light of the more recent efforts by the offender in furtherance of rehabilitation and his eventual release back into the community. 

24․The parties agreed that a non-parole period should be set by refence to the original term of imprisonment imposed; the effect of which would be the offender being eligible for parole immediately. This is consistent with the terms of s 65(6) of the CSA Act which provides that part 5.2 of the Crimes Sentencing Act (the part in relation to non-parole periods) applies to a non-parole period set under s 65(5)(b), as if the non-parole period had been set under part 5.2.

25․Of course, the offender’s eligibility for parole is a circumstance that could be affected by the outcome of the outstanding sentencing proceedings in the Magistrates Court.  Undoubtedly when the offender comes to be sentenced by the learned magistrate in November, if a term of imprisonment is to be imposed for those offences, the principal of totality will have application. 

26․I consider it is appropriate to impose a non-parole period and that the period be calculated by refence to the term of imprisonment originally imposed. 

Conclusion

27․The ICO must be cancelled and a non-parole period should be set. 

Orders

28․For those reasons, I made the following orders:

(1)The ICO imposed on 28 April 2021 is cancelled.

(2)The offender is to serve the remainder of the sentence in full-time detention to commence on 1 November 2024 and expire on 16 March 2025.

(3)The non-parole period is to commence on 28 April 2021 and expire on 27 July 2023.

I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor.

Associate: O Ferguson

Date: 5 November 2024