Fleet v Leeson (No 3)

[2023] ACTSC 206

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Fleet v Leeson (No 3)

Citation: 

[2023] ACTSC 206

Hearing Date: 

1 August 2023

Decision Date: 

1 August 2023

Before:

McCallum CJ

Decision: 

In respect of each good behaviour order imposed by me on 20 June 2022, I cancel those orders and resentence the offender to an intensive correction order for each charge for a period of 12 months from 1 August 2023 to 31 July 2024, subject to the core conditions listed in s 42 of the Crimes (Sentence Administration) Act 2005 (ACT) and the following additional conditions:

(a)  That the offender undertakes any counselling, treatment and programs as directed by the Director-General of ACT Corrective Services or their delegate particularly regarding drug relapse prevention and mental health.

(b)  That within 7 days the offender contact the EveryMan Program and further that he undertake any course of treatment or counselling recommended by the officer in charge of that program.

(c)   That within 7 days the offender contact his general practitioner and make an appointment to resume his mental health care plan if so recommended.

(d)  That the offender inform the Director-General of ACT Corrective Services or their delegate within 2 days in the case that his employment at Fenway Public House comes to an end.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – breach of a good behaviour order – cancellation of previous good behaviour order and resentencing to intensive corrections order – consideration of whether the importance of upholding orders of the Court should properly give way to the interests of rehabilitation

Legislation Cited: 

Crimes (Sentence Administration) Act 2005 (ACT) ss 42, 65, 110

Cases Cited: 

Fleet v Leeson [2021] ACTSC 153

Fleet v Leeson (No 2) [2022] ACTSC 150

Guy v Anderson [2013] ACTSC 5

Markarian v The Queen [2005] HCA 25; 228 CLR 357

R v XXL [2022] ACTSC 24

Parties: 

Eliott John Fleet ( Appellant)

Dean Leeson ( First Informant)

Keira Seton (Second Informant)

Representation: 

Counsel

T Crispin (Appellant)

D Swan (Respondents)

Solicitors

InPrivate Law ( Appellant)

ACT Director of Public Prosecutions (Respondents)

File Number:

SCA 16 of 2021

McCALLUM CJ:

1․On 23 April 2021, Eliott Fleet was dealt with by the Magistrates Court for a series of offences committed over 2020 and early 2021, importantly including, on 8 January 2021, the serious offence of attempting to escape from lawful custody and resisting a territory official.

2․The offence on that date was committed when, during the hearing of an application for bail, Mr Fleet became angry, threw a box of tissues at the magistrate and attempted to leave the custody of the corrective services officers who had brought him to Court.

3․The magistrate who dealt with Mr Fleet on 23 April 2021 sentenced him to a relatively stern term of imprisonment, being a period of 28 months with a non-parole period of 20 months in aggregate for all of the offences for which he was dealt with. 

4․Justice Burns allowed an appeal against those sentences, primarily on the ground that the magistrate had overlooked important information concerning Mr Fleet’s subjective circumstances: see Fleet v Leeson [2021] ACTSC 153. His Honour noted in careful detail the material to which the magistrate had failed to have regard, which included a strong subjective case showing important steps taken by the offender towards rehabilitation from drug misuse and anger management issues deriving from a number of sources set out in detail in his Honour’s judgment. His Honour imposed terms of imprisonment providing for full-time imprisonment from 7 December 2020 to 27 July 2021 (the period already served). The balance was suspended immediately with a good behaviour order for a period of 12 months from 28 July 2021 to 27 July 2022.

5․Mr Fleet breached those orders and I dealt with the breach: see Fleet v Leeson (No 2) [2022] ACTSC 150. For the reasons recorded in that judgment, I sentenced Mr Fleet to a short term of imprisonment and suspended the sentences imposed with a good behaviour order for a period of 12 months from 20 June 2022 to 19 June 2023.

6․Mr Fleet breached those orders in an offence committed on 15 October 2022 consisting of a breach of a family violence order.  The breach itself was relatively minor having regard to the full scale of potential breaches of such orders.  It consisted in the offender having attended the address of his former partner, who was the person in need of protection under an order made on 30 October 2021 by Chief Magistrate Walker at the time of one of the earlier breaches of an earlier good behaviour order.  Mr Fleet was dealt with for that offence in the Magistrates Court earlier this year on 17 March 2023 and was, again, convicted to a term of imprisonment fully suspended and with a good behaviour order for a period of 18 months. 

7․The good behaviour order which Mr Fleet has breached has now expired.  However, the prosecutor submitted that there is no indication in the Crimes (Sentence Administration) Act 2005 (ACT) that s 110 does not continue to apply. In particular, the expiration of the good behaviour order does not raise the complication that arises in the case of an expired intensive correction order considered by Mossop J in R v XXL [2022] ACTSC 24 at [35]-[37]. The difficulty that arises in the case of an intensive correction order is that it is unclear what is meant by the words “the remainder of the offender’s sentence” in s 65(2) of the Act if the section is being applied after the order has expired. No such issue arises in relation to an expired good behaviour order, where the section permits the court dealing with the breach to “impose the suspended sentence imposed for the offence”: s 110(2)(a).

8․It follows that, in accordance with s 110(2), I must cancel the good behaviour order made by me last year and either impose the suspended sentence imposed for the offence or re-sentence the offender for the offence.

9․I accept that, in making that determination, it is important to have regard to the authorities which remind judges of the need, where a good behaviour order has been breached, to uphold the integrity of its orders. 

10․That said, as submitted by Mr Chen, who appeared for Mr Fleet on the last occasion before me, there is in this jurisdiction no presumption that the breach of a suspended sentence of imprisonment should necessarily result in the imposition of the original term of imprisonment.  As I noted in my earlier judgment at [18], Mr Chen referred me in that context the decision of Refshauge J in Guy v Anderson [2013] ACTSC 5 at [83] where his Honour said:

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.

11․In my respectful opinion, the absence of any such presumption is an appropriate recognition of the sentencing discretion.  As is trite, every sentencing exercise is unique.  Individualised justice requires the Court to consider all relevant factors, assess their significance and make a value judgment as to the appropriate sentence: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [51] (McHugh J). That assessment is made at the time the person is being sentenced.

12․In the case of a breach of a good behaviour order, the fact that an offender has breached an order of the Court imposed at the time of sentence is plainly a serious matter and one which warrants serious evaluation by the Court.  However, it is but one of the factors relevant to the sentencing task at the time the offender is dealt with for the breach. 

13․Other relevant factors include the experience of the offender since the original sentence was imposed, including the circumstances of the breach.  If it be the fact that an offender has, since first being sentenced, demonstrated a strong case of rehabilitation and has favourable prospects for future good behaviour notwithstanding the breach offence, that is a factor which can and must be taken into account.

14․In the present case there are two strong factors in Mr Fleet's favour militating against the imposition of the original suspended sentence.  The first is the fact that he still has the employment which I regarded as a strong consideration when I dealt with him previously. 

15․There was at that time before me a letter dated 15 June 2022 from Ms Catherine Brown, the head chef at Fenway Public House, who spoke favourably of Mr Fleet, albeit in qualified terms.  She said, “Elliott is a hard worker and tries his best each shift.  He has fitted back into the flow of the kitchen and is part of the team”.

16․The evidence before me today includes a letter from Mr Jacob Adrian Jankovic, also of Fenway Public House, dated 27 July 2023.  So far as one can tell from a letter of recommendation from a single person, it appears that the experience of Fenway Public House in the past 12 months has been that Mr Fleet has not only maintained his hard effort but has indeed begun to excel as an apprentice chef.  Mr Jankovic states that Mr Fleet has outstanding qualities as an apprentice, including unwavering reliability, punctuality and transformation into “a valued member of the community”.  Those are encouraging words.

17․The second factor favourable to Mr Fleet today is the pre-sentence report which, while expressing some equivocation in some areas, is on the whole favourable.  Of particular significance, in my assessment, is the fact that Mr Fleet has a new relationship which he describes as having a positive influence on him.  The author of the report states that Mr Fleet “described his new partner as a positive influence noting she is a strong, independent woman who does not use illicit substances”.  The report otherwise notes the continuation of a number of the prosocial influences that were relied upon in the previous hearing before me.

18․Mr Fleet has been assessed as suitable for community service, but the author of the pre-sentence report notes that he may have limited capacity to complete another order at this time.  That is consistent with information provided to me by Mr Crispin of counsel this morning that the offender works anywhere between 38 and 70 hours per week in his role as an apprentice chef.

19․Separately, the report notes that the offender has been assessed as suitable for an intensive correction order and that he has signed an undertaking to comply with all the obligations of such an order.  The author recommends that particular factors that might be targeted in additional conditions of an intensive correction order are drug prevention and mental health supports.  The author also recommends that the order should contain an additional condition that he undertake counselling, treatment or programs as directed specifically regarding drug relapse prevention and mental health.

20․The prosecutor provided helpful and concise written submissions in which he very fairly noted that the breach offence did not involve actual or threatened violence and that there have been no further allegations of offending since the commission of that offence in October last year.

21․The prosecutor also noted the favourable factors recited in the pre-sentence report, including the following: 

(1)That although Mr Fleet’s historical compliance with Corrective Services has been poor, “his compliance in recent times has improved”.

(2)The fact that he remains in employment, currently works fulltime and is in the second year of his apprenticeship.

(3)That he reports ceasing the use of methamphetamine but continues to use both cannabis and Valium. 

[I interpolate to note that at the proceedings on sentence this morning before me, the Court was informed from the bar table that Mr Fleet is no longer using Valium].

(4)That his engagement with alcohol and drug counselling has been “inconsistent”. 

(5)That he has approached EveryMan for treatment to address self-identified anger issues but has cancelled multiple appointments.

(6)Finally, that the author of the pre-sentence report has an opinion of positive changes made by the offender in the past 12 months, including fulltime employment, a positive romantic relationship, removal of negative peer associations and being “mostly abstinent from drugs and alcohol”, and that the author assesses him as currently having a low risk of re-offending, significantly reduced from the assessment in May last year that he had a high risk of offending.

22․The prosecutor quite properly submitted that, whereas on the last occasion the prosecution did not contend for the imposition of a fulltime sentence of imprisonment, “on this occasion the court is faced with an offender who on the one hand has furthered his rehabilitation and on the other hand, has again breached orders of this court”.

23․Whilst it is always a matter of concern when an offender breaches a good behaviour order, in my assessment, this is a case in which the importance of upholding orders of the Court can properly give way to the interests of rehabilitation, having regard to the very strong progress the offender has made. 

24․For those reasons, I do not propose to impose a sentence of fulltime imprisonment.

Orders

25․Instead, I make the following orders. 

(1)In respect of each good behaviour order imposed by me on 20 June 2022, I cancel those orders and resentence the offender to an intensive correction order for each charge for a period of 12 months from 1 August 2023 to 31 July 2024, subject to the core conditions listed in s 42 of the Crimes (Sentence Administration) Act 2005 (ACT) and the following additional conditions:

(a)That the offender undertakes any counselling, treatment and programs as directed by the Director-General of ACT Corrective Services or their delegate particularly regarding drug relapse prevention and mental health.

(b)That within 7 days the offender contact the EveryMan Program and further that he undertake any course of treatment or counselling recommended by the officer in charge of that program.

(c)That within 7 days the offender contact his general practitioner and make an appointment to resume his mental health care plan if so recommended.

(d)That the offender inform the Director-General of ACT Corrective Services or their delegate within 2 days in the event that his employment at Fenway Public House comes to an end.

I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum

Associate:

Date: 22 November 2023