R v Avis
[2013] ACTSC 294
•18 December 2013
R v PHILIP TERENCE AVIS
[2013] ACTSC 294 (18 December 2013)
CRIMINAL LAW – Judgment and Punishment – Re-sentencing on breach of good behaviour order – Whether expired order can be cancelled
Crime (Sentence Administration) Act 2005 (ACT), ss 108, 116
Guy v Anderson [2013] ACTSC 245
R v Avis (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 2 October 2009)
R v Avis (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 29 September 2010)
R v Avis (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 25 May 2012)
R v Govinden (1999) 106 A Crim R 314
EX TEMPORE JUDGMENT
No. SCC 133 of 2009
Judge: Refshauge J
Supreme Court of the ACT
Date: 18 December 2013
IN THE SUPREME COURT OF THE )
) No. SCC 133 of 2009
AUSTRALIAN CAPITAL TERRITORY )
R
V
PHILIP TERENCE AVIS
ORDER
Judge: Refshauge J
Date: 18 December 2013
Place: Canberra
THE COURT ORDERS THAT:
No further action be taken on the breach of the good behaviour order.
On 17 July 2008, Philip Terence Avis was charged that, between 17 February 2008 and 1 May 2008, he did traffic in a controlled drug other than cannabis, namely methylamphetamine. On 2 October 2009, on his plea of guilty, I made a deferred sentence order and granted him bail to appear before me six months later in R v Avis (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 2 October 2009). Unfortunately, there were difficulties, because of his physical condition, in making progress in that period and I adjourned the sentence until 29 September 2010, when I sentenced him to two years’ imprisonment, suspending all but five days of that sentence because of pre-sentence custody, and made a good behaviour order with a probation condition and a community service work condition. See R v Avis (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 29 September 2010).
On 28 March 2011, an information was sworn to the effect that Mr Avis had not been attending for community service work. I adjourned the proceedings to give him an opportunity to complete that work and he appeared before me again on 25 May 2012 with the community service work completed with “satisfactory attendance” and an assessment that he was “a motivated worker”. There were other positive matters and, in the circumstances, I cancelled the order and simply made a fresh good behaviour order for a period of six months. See R v Avis (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 25 May 2012).
Within that period of six months, namely, on 16 August 2012 he was, however, charged with a further offence. It was an offence of driving whilst disqualified from holding or obtaining a licence. Since then, however, he has been further dealt with by me for a charge of theft, for which, for reasons that I set out in my reasons for sentence, I made a good behaviour order for two years with a condition that he undertake 300 hours of community service work. See R v Avis (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 19 February 2013).
For various reasons not presently material, the charge of driving whilst disqualified was not finalised until earlier this year, when he was sentenced in the Canberra Magistrates Court, on 22 August 2013, for that offence and a term of three months’ imprisonment was imposed, to be immediately suspended, and a good behaviour order was made, requiring him to sign the usual undertaking for a period of six months with other conditions. He was also dealt with for breaching a bond for which a term of imprisonment of four months was imposed, to be served by periodic detention. That order constituted a breach of the good behaviour order I had made on 25 May 2012, because of the date of the offence. Mr Avis appeared before me because of the breach of that order.
The question arose as to what action I could take, since the good behaviour order had ended. Section 108 of the Crimes (Sentence Administration) Act 2005 (ACT) sets out the options that can be taken when a good behaviour order is breached. Section 116 of the Crimes (Sentence Administration)Act provides that a court may act, notwithstanding that the term of a good behaviour order has ended. Nevertheless, it seemed to me there was a real question as to whether I could take significant action, because that was only available to me if I were to cancel the order. There seems to me to be a difficulty in cancelling an order that has already expired.
In all of the circumstances, however, I do not think that significant action is required. The other alternatives under s 108(2) of the Crimes (Sentence Administration) Act include that I take no further action, I give the offender a warning about the need to comply with the offender’s good behaviour obligations, I give the Director-General directions about the offender’s supervision or I amend the good behaviour order.
Since Mr Avis has appeared before me, I note that he has now continued with the obligations that he has had and he has completed 174 of the 300 hours that I required him to undertake in respect of community service and his attendance has been good, although there has been one unexplained absence. His performance, I am told, has also been good. As to the periodic detention, there is one session remaining that will be completed at the end of this week and therefore he has also complied with that obligation.
He has, since 16 August 2012, committed no further offences. As Mr Edmonds, who appeared for Mr Avis, properly pointed out, it is five years since the original matter which brought him before the court. Although there have been further offending since that time, there are only two offences, the theft and the drive whilst disqualified, that have breached the law, other than breaches of court orders.
The most recent breach is, as Mr Edmonds rightly pointed out, for a different and unrelated offence and, therefore, should be viewed in a somewhat different light than if it had been a breach by commission of an offence of the same kind and, in particular, one that related to his long-standing drug addiction which has not, in more recent times, resulted in further offending, beyond that for which I dealt with him on 19 February 2013. This accords with what I have said in Guy v Anderson [2013] ACTSC 245 at [36].
Mr Edmonds submitted that Mr Avis appears now to have turned a corner, albeit somewhat belatedly, and, while the continued appearance in this court and ‘quasi-drug court’ approach to the matter is not one that is desirable, it may have ultimately had the effect that he is back now on a pro-social course. The courts have said, particularly in cases such as R v Govinden (1999) 106 A Crim R 314 at 319, that one must look sceptically at suggestions that offenders have turned a corner. Nevertheless, it does seem to me that the proof that Mr Avis has turned a corner is in the fact that he has not, for some considerable time, committed any offences; that he remains unlikely to offend because of his drug addiction, which he seems to have managed, that he has understood the need to comply with court orders, which he is complying with in general in a most adequate way.
There was no submission made from the Crown that I need to take a more significant action that would require me to address the question of whether I am in a position in these circumstances to cancel the order.
In all of the circumstances, it seems to me that Mr Avis is well protected by the efforts that he has made and the community is well protected by his apparent rehabilitation and the fact that that will be under some scrutiny by the good behaviour order that I made on 19 February 2013 which has just over another twelve months to run. In all those circumstances, I consider that it is appropriate that I take no further action and that is the order that I make.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 31 March 2014
Counsel for the prosecution: Ms M Hunter
Solicitor for the prosecution: ACT Director of Public Prosecutions
Counsel for the defendant: Mr P Edmonds
Solicitor for the defendant: Paul Edmonds & Associates
Date of hearing: 24 September, 18 December 2013
Date of judgment: 18 December 2013
4
1
1