R v Annesley
[2014] ACTSC 90
•30 April 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v ANNESLEY |
Medium Neutral Citation: | [2014] ACTSC 90 |
Hearing Date(s): | 30 April 2014 |
DecisionDate: | 30 April 2014 |
Before: | Penfold J |
Category: | Sentence |
Catchwords: | SENTENCE – Breach of good behaviour order constituted by further offending – new offences less serious than previous offences for which suspended sentence imposed – offender re-sentenced. CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – breach of good behaviour order made in connection with suspended sentence – circumstances in which suspended sentence would appropriately be imposed – circumstances in which offender would appropriately be re-sentenced – disadvantages of returning offender to custody when rehabilitation is progressing – offender re-sentenced. |
Decision: | 1. The good behaviour order made on 4 November 2011 is cancelled. 2. The offender is re-sentenced as follows: · for arson on 11 November 2008, to 20 months imprisonment; · for burglary on 11 November 2008, to 18 months imprisonment; the second sentence to commence six months after the start of the first sentence, giving a total sentence of 24 months. 3. The sentence is backdated to 1 March 2013. 4. The next three months of the sentence are to be served as periodic detention. 5. On 29 July 2014, the remaining sentence (seven months imprisonment) is suspended. 6. The offender is ordered to sign a good behaviour undertaking with effect from today for 12 months, subject to the conditions: (a) that for such period not exceeding 12 months as Corrective Services considers necessary, the offender accept the supervision of ACT Corrective Services; and (b) that the offender undertake such counselling, courses and programs as his supervising officer directs. |
Parties: | The Queen (Crown) Neil Annesley (Offender) |
File Number(s): | SCC No. 97 of 2009 |
Introduction
In November 2011, I sentenced Neil Annesley for several offences including arson and burglary and re-sentenced him for an offence of sexual intercourse with a person under the age of 16 years. I imposed a total sentence of three and a half years which included the whole of the partly-suspended sentence for the sexual intercourse offence. That sentence was backdated to take account of time already spent in custody and also some months in residential rehabilitation. The remaining 10 months of the sentence was suspended subject to a two-year good behaviour order.
Mr Annesley has now breached the good behaviour order by committing two offences, one of drive while disqualified in November 2012 and one of assault occasioning actual bodily harm in May 2013. He was sentenced for those offences in the Magistrates Court to a six-month good behaviour order and a further period of disqualification from driving for the driving offence, and to 60 hours community service and a 12-month good behaviour order for the assault occasioning actual bodily harm offence.
Options for dealing with outstanding sentence
My options in relation to the outstanding 10 months of the sentence I imposed are as follows:
(c)to impose the remaining 10 months, requiring Mr Annesley to serve it in full time custody; or
(d)to re-sentence Mr Annesley to the same or a different sentence and then to provide for how that sentence, the newly-imposed sentence, is to be served, the options for which would include:
(i)a further suspension of the outstanding 10 months;
(ii)service of some or all of the period in full-time custody, by periodic detention, or by a combination of those;
(iii)if the sentence were partly or fully suspended, attaching a community service order to the relevant good behaviour order.
I have before me a Pre-Sentence Report prepared for the Magistrates Court in March this year assessing Mr Annesley as suitable for periodic detention and for community service.
I do not see it as either necessary or in the interests of the community to require Mr Annesley to serve the remaining 10 months of the outstanding sentence in full-time custody, although he certainly needs a reminder that suspended sentences and associated good behaviour orders need to be taken seriously. I reach those conclusions for reasons already expressed today and set out below, having regard among other things to evidence that Mr Annesley had until relatively recently been using cannabis on an occasional basis, but has abandoned any other illicit drug use.
I’ve put on the record before the view that a person who abuses a suspended sentence by going on in exactly the way that led up to his sentencing ought to be sent back to gaol, and probably won’t get another suspended sentence in a hurry.
However, a person who is clearly still struggling with whatever brought him to the point of committing offences that led to the imposition of the original sentence part of which was suspended, who is still struggling with those things but is managing, if not to eliminate further offending but to reduce the frequency and the nature of that offending, in my view ought to be at least considered an option for ongoing support and supervision, not just in his interests but at least as much in the community’s interest.
I could send Mr Annesley to prison for 10 months. That would certainly give him a nasty shock and it wouldn’t be a pleasant 10 months, but then what? He’d be in there for 10 months with people who are unlikely to turn him more pro-social. He will quite likely have access to an assortment of illicit drugs, for all I know possibly more ready access to the more serious drugs than to cannabis. I don’t know but I suspect, again, that it is easier, if you can get hold of these things at all, to take or use something like methamphetamine or heroin quickly and secretively than it is to sit around the cottages smoking cannabis for half the day without being detected. There may also be less pay-off from cannabis to whoever’s taking illicit drugs into the prison.
He sits in prison for 10 months either still using cannabis or using something else instead because we all at least assume, I won’t say we know but we can certainly assume, that life in prison is pretty boring at the best of times. And then he comes out, he’s no closer to finding a job, he’s probably a bit further from finding a job because he’s been in prison for the last 10 months and, yes, he’s cleared off all the offences on his record, with the possible exception of the most recent good behaviour orders, but he might, in fact, be starting again back where he was five years ago.
Putting Mr Annesley’s interests aside, none of that is in the community’s interest. It costs the community a lot more to keep him in prison than it does to have him out in the community but doing something useful, it doesn’t improve Mr Annesley’s chances of rehabilitating himself, it does improve his chances of slipping right back to where he was however many years or months ago.
Re-sentencing
Mr Annesley, please stand. I note your conviction for two offences committed during the term of the good behaviour order I imposed on 4 November 2011 and I cancel that good behaviour order.
I now re-sentence you to 20 months imprisonment for the arson and 18 months imprisonment for the burglary. The burglary sentence is to commence six months after the start of the arson sentence. That gives a total sentence of 24 months, which will be backdated 14 months to take account of time served, being to 1 March 2013.
I have wavered between imposing some periodic detention, and making a community service order for a significant number of hours in connection with the remaining 10 months of that sentence, but I’ve finally chosen a period of periodic detention to ensure that you will, in fact, clear off a bit more of the outstanding 10 months of your sentence. As well, periodic detention might be less intrusive to any employment opportunities that come your way than would a substantial requirement to perform community service in the next few months.
Accordingly, the remaining 10 months of the sentence will be served:
(a)first as three months periodic detention, commencing on Friday 2 May 2014 with the last weekend of period detention commencing on Friday 25 July 2014; and
(b)then the final seven months of the sentence will be again suspended;
and I order you to sign a 12-month good behaviour order to take effect immediately.
The good behaviour order will be subject to conditions:
(a)that you accept supervision by ACT Corrective Services for such period not exceeding 12 months as Corrective Services considers necessary; and
(b)that you undertake such counselling, courses and programs as your supervisor directs.
Mr Annesley, I hope that three months of periodic detention will be enough to remind you that you really do need to behave yourself for the next 12 months, because if you come back here again after further offending in that 12 months, I will find it very hard to avoid sending you back to full-time custody to clear off this sentence.
| I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Date: | |
Representation: | Counsel: Mr T Hickey (Crown) Mr P Edmonds (Offender) |
| Solicitors: ACT Director of Public Prosecutions (Crown) Canberra Criminal Lawyers (Offender) |
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