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 a suitable parenting program ahead of her daughter returning to her care. The offender did not engage with Directions ACT or CYPS as directed.
On 15 October 2020 the offender notified ACT Corrective Services that she would be unable to attend the CSC program that day as she was unwell. ACT Corrective Services agreed to provide her with an authorised absence on the condition that she supplied a medical certificate. The offender did not provide a medical certificate.
On 26 October 2020 the offender reported as directed and was introduced to a specialist interventions psychologist. She was directed to engage with the psychologist on an ongoing basis and to next report for supervision on 5 November 2020.
On 29 October 2020 the offender contacted ACT Corrective Services to advise that she would be unable to attend her CSC session as she was unwell. The offender agreed to supply a medical certificate. She failed to do so.
On 2 November 2020 the offender failed to attend a scheduled appointment with her psychologist.
On 5 November 2020 the offender failed to report for supervision and to attend her CSC session as directed.
On 12 November 2020 the offender contacted ACT Corrective Services to advise that she would be unable to attend her CSC session because of illness. She has not provided a medical certificate to support that absence as directed.
On 16 November 2020 the offender notified ACT Corrective Services that she would be unable to attend a psychologist appointment that day due to illness. The offender again failed to provide a medical certificate in support despite being asked to do so.
On 23 November 2020 the offender failed to report for supervision and failed to attend a psychologist appointment scheduled for that day.
On 7 December 2020 the offender failed to report for supervision as directed.
On 21 December 2020 the offender failed to report for supervision as directed.
She has, however, reported for supervision on eight occasions and been in telephone contact with ACT Corrective Services on other occasions.
She attended the CSC program on three occasions but not on six other occasions. She has only attended one session with the psychologist. She was referred to Catholic Care for general support but did not engage with that service.
On 4 December 2020 she said she had not attended appointments because she “had a few things going on”.
She has been referred to quite a significant number of programs. It is not clear whether she would have been required to participate in all of those programs if she had attended and cooperated with some of them, or whether the number of programs with which she was required to engage increased as a result of her noncompliance in order to attempt to encourage her to engage with one or more of them.
Consideration
The proceedings were before me on 16 February 2021 when Ms Ayuel was unrepresented. On 22 March 2021 she was represented and an adjournment was sought so that some evidence could be obtained by subpoena.
The evidence tendered as a result of obtaining access to documents by that subpoena indicates that she has had two recent periods of hospital admission due to her mental health. The first was a period from 18 February 2021 until 7 March 2021. The second was from 11 March 2021 to 12 March 2021 or possibly longer – it is not possible to tell because the records tendered are not complete. On each occasion she presented with suicidal thoughts. The records do not record a clear diagnosis, other than depression.
I was told that currently there is an arrangement involving her young daughter being cared for by her mother, although Ms Ayuel has some access at the weekends. I am also told that Ms Ayuel is very focused on obtaining full custody of her child and finds it difficult to prioritise other matters.
The picture presented by the evidence in the medical records is overall somewhat unclear. It provides a picture of her mental health being disturbed to an extent that her ability to comply with supervision is impeded. Her relationship with her mother, her relationship with her child, her past trauma, and some illicit drug use, as well as depression have all contributed to making it difficult for her to comply with a regime of supervision, particularly a regime of supervision as comprehensive as she has been directed to undertake.
While supervision can be of assistance in reducing an offender’s likelihood of reoffending and assisting with their rehabilitation generally, in the present case I do not consider it appropriate to continue to mandate supervision where it is not of assistance, where it is likely that the offender will be unable to comply with the regime imposed, and where ongoing involvement with the court system will make it more difficult for her to address her mental health difficulties and the causes of those mental health difficulties.
Having found the breach established, I am obliged to cancel the good behaviour order and either impose the suspended sentence imposed for the offence or resentence the offender for the offence. In my view, the appropriate course is to resentence the offender for the offence in the same terms as the earlier sentence, except so as to delete the requirement for supervision.
Orders
As a consequence, the orders that I make are:
1. The good behaviour order imposed as a result of the orders of the Court on 6 August 2020 is cancelled.
2. On the charge of forcible confinement (SCCAN11/2020), the offender is convicted and sentenced to 25 months’ imprisonment starting on 7 October 2019 and ending on 6 November 2021.
3. The sentence is suspended forthwith, the offender having served 10 months of that sentence, upon the offender entering into an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months from 6 August 2020 to 5 February 2022.
4. The good behaviour order imposed in relation to the charge of act endangering health (SCCAN12/2020) is amended so that it is for a period of 11 months and 15 days and only subject to the core conditions.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 10 May 2021 |
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