Fleet v Leeson (No 2)
[2022] ACTSC 150
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Fleet v Leeson (No 2) |
Citation: | [2022] ACTSC 150 |
Hearing Date: | 20 June 2022 |
DecisionDate: | 20 June 2022 |
Before: | McCallum CJ |
Decision: | (1) In respect of the good behaviour orders imposed by Burns J on charges CC2021/1115 and CC2021/1117, I cancel those orders and resentence the offender as follows: (a) On charge CC2021/1115, the offender is sentenced to a term of imprisonment for 71 days commencing on 20 June 2022 and expiring on 29 August 2022. (b) On charge CC2021/1117, the offender is sentenced to a term of imprisonment for 2 months commencing 20 July 2022 and expiring 19 September 2022. (2) Each of those sentences is suspended with a good behaviour order for a period of 12 months from 20 June 2022 to 19 June 2023 with conditions that the offender accept supervision of the Director General responsible for adult corrections or that person’s delegate for that period of 12 months or such lesser period as deemed appropriate by his supervising officer, and obey all reasonable directions of each such person including directions that he undertake counselling or treatment for the prevention of drug abuse and to address mental health issues. |
Catchwords: | CRIMINAL LAW — JURISDICTION, PRACTICE AND PROCEDURE — Judgment and Punishment — Sentence —Breach of good behaviour order — Cancellation of previous good behaviour order and resentencing to further good behaviour order |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) |
Cases Cited: | Fleet v Leeson [2021] ACTSC 153 Guy v Anderson [2013] ACTSC 5 |
Parties: | Eliott John Fleet ( Appellant) Dean Leeson ( Respondent) |
Representation: | Counsel E Chen ( Appellant) D Swan ( Respondent) |
| Solicitors Legal Aid ACT ( Appellant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | SCA 16 of 2021 |
McCALLUM CJ:
These are proceedings for breach of good behaviour orders imposed by Burns J. The offender, Eliott Fleet, was initially sentenced on 23 April 2021 by a Magistrate for a series of separate offences including offences of attempting to escape from lawful custody. He was sentenced by her Honour to an aggregate term of imprisonment for 28 months with a non-parole period of 20 months which, had that sentence remained on foot, would yet to have expired.
An appeal against the alleged excessiveness of those sentences was upheld by Burns J: see Fleet v Leeson [2021] ACTSC 153. That decision was given on 28 July 2021. His Honour upheld a contention that the Magistrate had given inadequate consideration to what his Honour’s judgment reveals was a strong subjective case. I will return to the detail of the matter recorded in the judgment.
The orders made by Burns J included a series of individual sentences of varying periods. The eighth order made was as follows:
“The sentences imposed are to be served by way of full-time imprisonment from 7 December 2020 until 27 July 2021. The balance of the sentences are suspended with a good behaviour order for a period of 12 months from 28 July 2021 to 27 July 2022 with conditions that the appellant accept the supervision of the Director General responsible for adult corrections or that person’s delegate for that period of 12 months or such lesser period as deemed appropriate by his supervising officer, and obey all reasonable directions of each such person, including directions that he undertake counselling or treatment for the prevention of drug abuse and to address mental health issues.”
The offender breached the good behaviour order on two separate occasions. The first breach occurred on 29 October 2021 in the context of a domestic dispute. It was alleged that, during that dispute, he damaged the lock of a door which was already damaged. As a result of that incident, the Chief Magistrate made a family violence order on 30 October 2021. On 24 April 2022, the offender breached that family violence order by being present at the premises of his ex-partner.
The offender was sentenced for those two matters by Magistrate Theakston on 31 May 2022. By then, he had spent a number of days in custody, recorded by the Magistrate as being 45 days although it is acknowledged in the submissions before me that that was in error and that he had in fact served a total of 38 days in custody for the two new offences.
In any event, the Magistrate considered that that period of imprisonment was sufficient to meet the objects of sentencing and, having regard to other material before him, including the strong subjective case to which I have already referred, imposed in one instance a term of imprisonment that had already expired and, in the second case, a term of imprisonment that ended on the day of sentencing, that is, 31 May 2022.
It remains to deal with the offender for the two breaches of the good behaviour order imposed by Burns J constituted by the two offences for which the offender was dealt with by Magistrate Theakston.
The material before the Court includes a letter dated 15 June 2022 from Katherine Brown, the head chef at Fenway Public House. She indicates that she has been in that position since the opening of that institution in 2019. She met the offender at the Alexander Maconochie Centre as she was the hospitality trainer and assessor there for two years. She noted his interest in cooking and getting back to finishing an apprenticeship when he was released from custody. She told him to come to see her when he was released, and he did. Since that time, he has been working three days a week at Fenway Public House building up to five days full-time as an apprentice cook. Ms Brown describes the offender in the following terms:
“Eliott is a hard worker and tries his best each shift. He has fitted back into the follow [perhaps meant to read “flow”] of the kitchen and is part of the team.”
The other material before the Court includes the matter to which I have already referred, namely, the remarks by Burns J when allowing the appeal against the initial sentences imposed by the Magistrate. As the ground of appeal was a complaint that the Magistrate had given inadequate consideration to the subjective case, his Honour was at pains to set out the important information contained in that case in some detail. I will not rehearse all of that material save to make a number of observations.
The offender’s education was limited and, as frequently occurs in the case of children deprived of the normal support of a strong and prosocial upbringing, he fell into drug and alcohol abuse, complicated by mental health issues. Burns J did, however, note that from the material before him one could glean that there had been an improvement in the appellant's compliance with supervision as at July last year. His Honour also noted that the material revealed attempts by the offender to engage in counselling, despite the difficulties presented by the COVID-19 pandemic.
One additional point to be made from his Honour's judgment concerns the topic of the offender’s engagement with rehabilitation from his drug abuse. A report acknowledged that his engagement with supervision had been positive, “but his return to custody had been a setback”. That observation accords with the common experience of the courts that, when an offender is able to demonstrate a good case of rehabilitation, a return to full-time detention can be counterproductive. That does not seem to me to serve the objects of sentencing in any constructive way.
On behalf of the offender Mr Chen submits that, in those circumstances and having regard to that positive material, the appropriate course for the Court to take now is to re-sentence the offender to the same sentence as was imposed by Burns J but to impose fresh good behaviour bonds, that is, effectively prolonging the period of supervision. Mr Chen submitted that this would strike the appropriate balance between punishing the offender and promoting his rehabilitation which, so it was submitted, would in turn be the best measure to protect the community. I respectfully agree.
Mr Chen noted six reasons why the course of cancelling the good behaviour orders and resentencing the offender to further periods of good behaviour for the same period would be appropriate.
First, he noted the employment that the offender presently holds as an apprentice cook and Ms Brown's description of him.
Secondly, he noted the remarks of Magistrate Theakston in sentencing the offender for the two breaches where his Honour described them as being towards the lowest end of the objective seriousness spectrum.
Thirdly, Mr Chen noted that, during the period while the offender has been subject to the supervision of ACT Corrective Services, he has not been the subject of any breach action through non-compliance with probation directions. He has been attending his supervision appointments as required and has not returned any urine samples indicating the consumption of illicit substances.
Fourthly, Mr Chen noted, as is trite, that the offending constituting the breach of the suspended sentence orders is distinct from the underlying offences for which he stands to be resentenced.
Fifthly, Mr Chen noted the legal principle that there is in this jurisdiction no presumption that the breach of a suspended sentence of imprisonment should result in the imposition of the original term of imprisonment. Mr Chen referred in that context to the decision of Refshauge J in Guy v Anderson [2013] ACTSC 5 at [83]:
“In the first place, it was suggested that her Honour erred in assuming that there was a presumption in favour of imposing the original sentence that had been suspended. Unlike all other Australian jurisdictions, there is, in this Territory, no statutory presumption of activation of the original sentence of imprisonment once a breach is proved: see Lorana Bartels and Simon Rice, ‘Reviewing Reforms to the Law of Suspended Sentences in the Australian Capital Territory’ (2012) 14 Flinders Law Journal 253 at 258.’”
Finally, Mr Chen noted the period of imprisonment the offender has already served for the two recent offences, being recorded as 45 days but in fact only 38 days. Mr Chen submitted that, having regard to the principle of totality, a further term of imprisonment would in all the circumstances be crushing because of the extent to which it would interfere with the progress and rehabilitation demonstrated by the offender whilst he has been awaiting resentence for the present matters. Again, I respectfully agree.
The Crown did not contend that the offender should be required to serve the balance of the terms of the imprisonment imposed and suspended by Burns J. I am grateful for the acknowledgement implicit in that position that the object of rehabilitation can in some circumstances be the primary consideration to which the Court should give consideration. I am satisfied that this is such a case.
For those reasons, pursuant to s 110 of the Crimes (Sentence Administration) Act 2005 (ACT), I make the following orders.
(1) In respect of the good behaviour orders imposed by Burns J relating to charge CC2021/1115 and CC2021/1117, I cancel those orders and resentence the offender as follows:
(a) On charge CC2021/1115, the offender is sentenced to a term of imprisonment for 71 days commencing 20 June 2022 and expiring 29 August 2022.
(b) On charge CC2021/1117, the offender is sentenced to a term of imprisonment for 2 months commencing 20 July 2022 and expiring 19 September 2022.
(2) Each of those sentences is suspended with a good behaviour order for a period of 12 months from 20 June 2022 to 19 June 2023 with conditions that the offender accept the supervision of the Director General responsible for adult corrections or that person’s delegate for that period of 12 months or such lesser period as deemed appropriate by his supervising officer and obey all reasonable directions of each such person including directions that he undertake counselling or treatment for the prevention of drug abuse and to address mental health issues.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum Associate: Date: |
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