R v Bennett

[2017] ACTSC 104

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:

1. 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. 

1. 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.

1. 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. 

1. 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.

1. 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.

1. 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.

1. 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. 

1. The background issues and difficulties are canvassed in the ICO assessment report, which states:

Ms Bennett struggled throughout the ICO assessment period, due to her illicit drug use and her failures to report reliably for supervision. Her motivation to engage in treatment in relation to her substance use and mental health also remain a concern. To her credit, Ms Bennett has taken responsibility for her offending behaviour and expressed victim empathy.

1. The author assessed Ms Bennett's risk of general re-offending as high, due to "her drug use and mental health concerns", among other factors.  I do not find that there is a high risk given that over the past two years, aside from the use of illicit substances, there has been no significant re-offending.  However, the risk of re-offending is moderate as the offender continues to use drugs sporadically and is yet to address the factors which underlie her past criminal behaviour and her ongoing drug use.

1. The offender has said that the transition to new medication is an important matter to consider.  She is now on anxiety medication which she says is effecting improvements.  I have not observed improvements.  Ms Bennett's presentation in Court today and on the last occasion was extremely scattered.  If that is the result of the medication, then so far it is not working.  If it is not the result of medication, then it must be the result of continuing drug use. Either way, the position is not satisfactory and I do not harbour any optimism that in the near future the position will improve. 

1. Enough judicial and community correction resources have been devoted to Ms Bennett and it is time to move on. 

1. On 6 December 2016, when this matter came before me for directions, I found the good behaviour order had been breached and cancelled it. 

1. The offender is resentenced to nine months' imprisonment from 28 February 2017 to 27 November 2017.  The sentence will be suspended after four months, on 27 June 2017, on the offender entering into a good behaviour order.  The good behaviour order will be for a period of five months; that is, for the remainder of the sentence.

I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell

Associate:

Date: