R v Ayuel (No 2) - [2021] ACTSC 76

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Ayuel (No 2)
Citation:	[2021] ACTSC 76
Hearing Date:	28 April 2021
DecisionDate:	28 April 2021
Before:	Mossop J
Decision:	See [28]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – breach of good behaviour order – failure to adhere to supervision requirements – offender’s mental health difficulties impeding capacity to comply with supervision regime – resentenced – suspended sentence with good behaviour order imposed
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT), s 86
Cases Cited:	R v Ayuel [2020] ACTSC 213
Parties:	The Queen ( Crown) Mary Ayuel ( Offender)
Representation:	Counsel M Dyason ( Crown) P Edmonds ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Paul Edmonds & Associates ( Offender)
File Number:	SCC 336 of 2019

MOSSOP J:

Introduction

The offender, Mary Ayuel, was sentenced by me on 6 August 2020 for forcible confinement and an act endangering health: R v Ayuel [2020] ACTSC 213. The offending was serious but, as I pointed out at [37] of my reasons, did not have a clear explanation. She received an aggregate sentence of 28 months’ imprisonment which was suspended after serving 10 months’ imprisonment upon entry into good behaviour orders for a period of 18 months.

The good behaviour order on the charge of forcible confinement commenced on 6 August 2020 and was due to expire on 5 February 2022. In addition to the core conditions of the good behaviour order under s 86 of the Crimes (Sentence Administration) Act 2005 (ACT), I imposed the condition that the offender “be subject to supervision on parole by the Director-General for a period of 18 months or such lesser period as determined by the Director-General”.

The offender has breached the good behaviour order in relation to the charge of forcible confinement on numerous occasions since 6 August 2020 by failing to comply with the supervision condition.

Details of breaches

The details of the offender’s breaches are set out in an affidavit prepared by ACT Corrective Services which is dated 29 January 2021. They are, in summary, as follows.

On 8 September 2020 the offender reported to ACT Corrective Services to undergo a urinalysis drug screen. At that appointment she was advised to next report for supervision on 18 September 2020. The offender did not report as directed on 18 September and failed to notify ACT Corrective Services of her inability to do so.

On 30 September 2020 the offender reported for supervision and was directed to participate in a weekly Cognitive Self Change (CSC) program which was to begin on 1 October 2020. She failed to attend the CSC program on that day.

On 8 October 2020 the offender reported and was directed to obtain a mental health care plan from her general practitioner, engage with Directions ACT in relation to alcohol and drug counselling services and engage with Child and Youth Protection Services (CYPS) in relation to identifying…

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 R v Ayuel (No 2)

Details

AGLC: R v Ayuel (No 2) [2021] ACTSC 76
Case: [2021] ACTSC 76
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the case of R v Ayuel (No 2) was presided over by Justice Mossop on 28 April 2021. The case involved Mary Ayuel, who had previously been sentenced for forcible confinement and an act endangering health. This latest hearing focused on Ayuel’s failure to comply with her good behaviour order, which included a supervision requirement. The court was tasked with determining the appropriate course of action following these breaches, considering Ayuel's mental health issues that impaired her ability to adhere to the supervision conditions.

The primary legal issue before the court was whether to enforce the original sentence or to resentence the offender in light of her ongoing breaches of the good behaviour order, which were due to her mental health difficulties. The court had to balance the need to address the offender's non-compliance against her mental health impediments, which made it challenging for her to meet the supervision requirements. The decision hinged on whether continuing with the mandated supervision was beneficial to Ayuel’s rehabilitation and whether it would hinder her ability to address her mental health issues.

Justice Mossop concluded that continuing the supervision was not appropriate, as it was unlikely that Ayuel would comply with the regime and ongoing court involvement would complicate her efforts to manage her mental health. The court determined that re-sentencing was the appropriate course of action. The original sentence of 28 months' imprisonment, suspended after 10 months, was to be reinstated with the supervision requirement removed. This decision aimed to provide Ayuel with the opportunity to focus on her mental health and related issues without the burden of an unfeasible supervision regime. The court also adjusted the good behaviour order for the charge of endangering health to remove the supervision condition.

The final orders of the court included cancelling the original good behaviour order for the charge of forcible confinement, reinstating the suspended sentence with the same terms as the original, and amending the good behaviour order for the charge of endangering health to remove the supervision condition. This decision ensured that Ayuel could address her mental health issues more effectively while still fulfilling the requirements of her sentence.

Orders