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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fleet v Leeson (No 2)

Details

AGLC: Fleet v Leeson (No 2) [2022] ACTSC 150
Case: [2022] ACTSC 150
Decision Date

CaseChat Overview and Summary

This case involved a re-sentencing hearing for Eliott John Fleet, who had breached good behaviour orders imposed by Burns J. Dean Leeson represented the respondent. The offender had been initially sentenced by a Magistrate for a series of separate offences, including attempting to escape from lawful custody, but an appeal against the excessiveness of those sentences was upheld by Burns J. The offender breached the good behaviour order on two separate occasions, for which he was sentenced by Magistrate Theakston. The court was required to decide whether to cancel the previous good behaviour orders and re-sentence the offender to further periods of good behaviour for the same period. The court also had to consider whether to impose fresh good behaviour bonds to effectively prolong the period of supervision, as this would strike the appropriate balance between punishing the offender and promoting his rehabilitation, which in turn would be the best measure to protect the community.

The court agreed with the submission that cancelling the good behaviour orders and resentencing the offender to further periods of good behaviour for the same period was appropriate. The court noted the offender's employment as an apprentice cook and his positive engagement with supervision. The court also noted that the period of imprisonment the offender had already served for the two recent offences was sufficient. The court was satisfied that the object of rehabilitation could in some circumstances be the primary consideration to which the Court should give consideration. The court made orders cancelling the previous good behaviour orders and resentencing the offender to further periods of good behaviour for the same period, with conditions that the offender accept supervision 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 court's reasoning was based on the fact that the offender had shown positive engagement with supervision and had not returned any urine samples indicating the consumption of illicit substances. The court also noted that the offending constituting the breach of the suspended sentence orders was distinct from the underlying offences for which he stood to be resentenced. The court was satisfied that this was a case where the object of rehabilitation could in some circumstances be the primary consideration to which the Court should give consideration.

Orders