Jayke Steven Fleury v The Queen

[2008] ACTCA 20

JAYKE STEVEN FLEURY v THE QUEEN
[2008] ACTCA 20 (11 November 2008)

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 47 - 2007
No. SCC 65 of 2007

Judges:        Higgins CJ, Penfold and Marshall JJ
Court of Appeal of the Australian Capital Territory
Date:           11 November 2008

IN THE SUPREME COURT OF THE       )          No. ACTCA 47 - 2007
  )          No. SCC 65 of 2007
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JAYKE FLEURY

Appellant

AND:THE QUEEN

Respondent

ORDER

Judges:  Higgins CJ, Penfold and Marshall JJ
Date:  11 November 2008
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. The sentence imposed by Gray J be confirmed.

1. The sentence and non-parole period commence on 17 April 2007.

IN THE SUPREME COURT OF THE       )          No. ACTCA 47 - 2007
  )          No. SCC 65 of 2007
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JAYKE FLEURY

Appellant

AND:THE QUEEN

Respondent

Judges:  Higgins CJ, Penfold and Marshall JJ
Date:  11 November 2008
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. Dealing first with the application to admit into evidence as fresh evidence the report of Dr Stevens, we note of course that Dr Stevens’ report was not available to his Honour Gray J, nor was there any application made for an assessment of that kind to be placed before his Honour.  Having said that, we note that on page 2 of the report, the following remarks appear:

Mr Fleury expressed some enthusiasm to enter into a community based rehab program for those on methadone.  Given that he so quickly offended when he was last released on bail, I think that it would be more appropriate that he have a more structured environment either fully residential and closely supervised, or to be treated while incarcerated.

1. Then, the next paragraph, referring to Mr Fleury’s extensive criminal history, ends by saying:

If a custodial sentence is given, I recommend that Mr Fleury be placed in a correctional centre containing a therapeutic community so that his treatment needs can be appropriately met.

1. The remainder of the report does refer to Mr Fleury’s poor judgment, which was certainly something of which his Honour was made aware, and we suppose, has to be regarded as confirmed by the offending behaviour which was the subject of the sentencing proceedings. 

1. Going to that offending behaviour, we will just refer to Dr Stevens’ summary of it.  There were two major offences, the armed robberies, but also the stealing of cars in connection with it.  Mr Fleury’s report of that was, “I went and stole a car and was going to do armed robbery.  I grabbed another bloke I know and he insisted on doing it,” whatever that may mean, “We drove to a couple of shops, robbed, then went on to the dealer.  On the way, the police spotted us,” and then there’s a description of a car crash in attempting to escape from police.  The next one was on his 21st birthday.  He had taken some pills:

… had no money, took a cab to Woden, stole a car, drove around past a video shop.  I pulled over robbed them, then went to the dealer.  I went home took the drugs, and the police came.

1. Now, it seems to us that does not add very much in terms of what would be regarded as a different explanation for the offences than his Honour had before him.  The assessments which follow under paragraph 10 of the report add little either.  Certainly it is not surprising, in view of the appellant’s previous family history, but it really does not add anything, by way of saying his criminal responsibility would have been regarded as less. had that assessment been made and tendered to his Honour.  It really does no more than confirm what his Honour already knew and was told through the mechanism of the pre-sentence report and the Drugs of Dependence assessment. 

1. In our view, the report should not be admitted on the grounds, firstly, that it was not evidence that was before his Honour nor could it have been, but it adds very little to it and in our view it is not material to, and would have been futile, in fact it would only have confirmed the sentence his Honour imposed. 

1. So far as the mental health evidence is concerned, certainly there was a statement in the pre-sentence report and in the Drugs of Dependence assessment which raised the question of the anxiety and depression with which Mr Fleury was afflicted.  Of course there is no doubt that that would have been taken into account as explaining why it was that he may have become addicted to drugs in the first place, but, as has often been said, the fact that crimes are committed with a view to satisfying a drug addiction is not a mitigating factor. 

1. His Honour did take account, as is obvious, of the plea of guilty.  Not only does his Honour say so, but for the first offence, which was that which was committed in company with Mr Gerstinmeier, Mr Gerstinmeier chose to plead not guilty, was given five years, Mr Fleury four.  That seems to us to reflect the fact that Mr Fleury owned up and pleaded guilty. 

1. The same can be said for the second offence which was not very dissimilar to the first, save it was not apparently in company with anyone. 

1. For that reason, no doubt, a good one, Mr Bradfield does not challenge the sentences or indeed the sentence structure.  The only question is as to the non-parole period for which his Honour’s assessment of that is at page 13 of the Appeal Book, where his Honour said, “Mr Fleury is a young man of 21 years of age.  He has a very significant criminal history, predominantly as a juvenile but also as an adult offender.”

And his Honour observed:

It seems most of his offending history may be linked to his illicit substance abuse.  His extensive criminal history, together with his proven non-compliance with the community-based orders that have been offered to him, makes it difficult to offer leniency to him in sentencing him for these offences. 

1. Now with that it is difficult to disagree.  His Honour does, however, go on to say:

There does appear, however, to have been some change in Mr Fleury’s insight and attitude over the time that he has been in custody in relation to these offences. 

1. And his Honour concluded in that paragraph by saying:

He is clearly a prime candidate to undertake rehabilitation, if he maintains the attitude that he now takes.  But the commitment that he might have has yet to be demonstrated.  He also recognises the difficulties that long-term residential rehabilitation would place on his relationship.

1. With respect, that seems to us to be an entirely reasonable assessment and we can see no error in the structure of the sentence or in the sentence that his Honour imposed.  We would therefore confirm that sentence with the proviso that, of course, the commencement date does need to be revised to reflect the time that Mr Fleury has spent on bail, so that the sentences and the non-parole period would commence on 17 April 2007. 

1. Otherwise, we would dismiss the appeal.

   I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

   Associate:

   Date:    11 November 2008

Counsel for the Appellant:  Mr I Bradfield
Solicitor for the Appellant:  BevanSnell Lawyers
Counsel for the Respondent:  Mr J White
Solicitor for the Respondent:  Director of Public Prosecutions for the ACT
Date of hearing:  11 November 2008
Date of judgment:  11 November 2008