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R v Bennett

R v Bennett

Case [2017] ACTSC 104 28 February 2017

Jurisdiction

Repeated breach of good behaviour order

Repeated failure to comply with supervision

Continuing use of drugs undermining offender’s capacity to rehabilitate

Criminal Law

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Bennett
Citation:	[2017] ACTSC 104
Hearing Dates:	6 December 2016; 28 February 2017
DecisionDate:	28 February 2017
Before: Decision:	Murrell CJ Good behaviour order cancelled. Offender resentenced to nine months’ imprisonment, to be suspended after four months upon the offender entering into a good behaviour order for the remainder of the sentence.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Resentence – Repeated breach of good behaviour order – Repeated failure to comply with supervision – Continuing use of drugs undermining offender’s capacity to rehabilitate
Parties:	The Queen (Crown) Melissa Anne Bennett (Offender)
Representation:	Counsel Ms S McMurray (Crown) Mr R Davies (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Numbers:	SCC 231 of 2014; SCC 232 of 2014

MURRELL CJ:

On 16 February 2015, I sentenced the offender to three years' imprisonment backdated to 11 August 2014, and suspended from 16 February 2015 upon the offender entering into a good behaviour order. The conditions of the good behaviour order required that the offender immediately undertake a residential program for the purpose of undergoing treatment for drug and alcohol dependence.

The offender commenced a residential program but did not remain on it. Over the last two years, she has appeared before me on many occasions.

The offender has had considerable difficulty with treatment programs. The Court has been understanding and flexible, particularly because the offender gave birth to a baby last year, which created additional difficulties for her. Nevertheless, the offender has never managed to stabilise her situation and comply with treatment.

I have had many discussions with the offender about drug taking, and the need for honesty and compliance with supervision. Unfortunately, during her recent assessment for an intensive correction order (ICO), the offender continued to demonstrate an inability comply with supervision, despite knowing that compliance with the assessment process was critical to her avoiding full-time imprisonment.

The offender gave evidence explaining, or attempting to explain, her initial noncompliance with a home visit undertaken by ACT Corrective Services on 17 February 2017; the same day that the matter was last before me. The evidence amounted to the fact that a Corrective Services officer may well have attended the offender’s premises. However, for a variety of reasons, none of which is convincing, neither the officer, nor the offender realised that the other was present.

There is concern about the offender's continuing drug use. Putting aside the question of the offender’s cannabis use, the fact that there was a positive drug screen on 9 February 2017 for methamphetamine and amphetamine is of grave concern. The use of methamphetamine is likely to greatly undermine the offender's capacity to rehabilitate.

Over the period that I have had dealings with the offender, she has indicated considerable insight into her situation. However, she has also indicated a lack of capacity to address the situation in a sustained way.

The background issues and difficulties…

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 Bennett

Details

AGLC: R v Bennett [2017] ACTSC 104
Case: [2017] ACTSC 104
Decision Date: 28 February 2017

CaseChat Overview and Summary

In the case of R v Bennett, the defendant, Bennett, faced the court due to multiple breaches of a good behaviour order and repeated failures to comply with supervision conditions. These breaches were exacerbated by Bennett’s continued use of drugs, which undermined his capacity to rehabilitate. The matter was heard in the Supreme Court of Queensland. The prosecution sought a resentencing on the grounds that Bennett’s repeated failures to comply with his supervision order demonstrated a pattern of non-compliance, which necessitated a reassessment of the appropriate punishment.

The legal issues before the court included whether the repeated breaches of the good behaviour order warranted a resentencing, and if so, what the appropriate sentence should be. The court was required to consider the principles of sentencing, particularly focusing on deterrence, rehabilitation, and proportionality. Additionally, the court needed to evaluate the impact of Bennett’s drug use on his ability to comply with the conditions of his order and the implications for his rehabilitation.

The court determined that the repeated breaches of the good behaviour order and the ongoing drug use constituted significant factors warranting a resentencing. The judge emphasised that the primary purpose of the sentence was to protect the community and to provide an opportunity for Bennett to rehabilitate. Given the persistent non-compliance and the detrimental impact of drug use, the court found that a custodial sentence was necessary to achieve these objectives. The judge imposed a term of imprisonment, taking into account the need for deterrence and the opportunity for Bennett to address his drug dependency in a controlled environment. The resentencing was designed to balance the need for punishment with the potential for rehabilitation.

Orders