R v Cajina (No 2)
[2022] ACTSC 383
•15 March 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Cajina (No 2) |
Citation: | [2022] ACTSC 383 |
Hearing Date: | 15 March 2022 |
Decision Date: | 15 March 2022 |
Before: | Refshauge AJ |
Decision: | 1. The Good Behaviour Order made on 9 November 2021 be cancelled. 2. The convictions for threatening to inflict grievous bodily harm, damaging property, possessing a knife in a public place and possessing an offensive weapon be confirmed. 3. For the offence of threatening to inflict grievous bodily harm, Jairo Saul Cajina be sentenced to six months imprisonment, to commence on 15 November 2021 and end on 14 May 2022. 4. For the offence of damaging property, Jairo Saul Cajina be sentenced to two months imprisonment, to commence on 15 April 2022 and end on 14 June 2022. 5. For the offence of possessing a knife in a public place, Jairo Saul Cajina be sentenced to three months imprisonment, to commence on 15 April 2022 and end on 14 July 2022. 6. For the offence of possessing an offensive weapon, Jairo Saul Cajina be sentenced to three months imprisonment, to commence on 15 May 2022 and end on 14 August 2022. 7. The total sentence of nine months be suspended from 18 April 2022 for 15 months. 8. Jairo Saul Cajina be required to sign an undertaking to comply with the Offender’s Good Behaviour Obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for 15 months from 18 April 2022 to 17 July 2023 with the following conditions: a. Subject to condition (c), Jairo Saul Cajina reside at 2 Prisk Place, Bonython ACT; b. While residing in accordance with condition (a), Jairo Saul Cajina be at his place of residence between 8:30 pm each day and 7:00 am the next day, except in the case of an emergency, and present himself to the front door of the residence at any time during those hours as requested by a police officer; c. Despite condition (a), Jairo Saul Cajina may reside at 3/26 Goldner Circuit, Melba ACT when his partner, Bronwyn Bridges, is residing there; d. A probation condition that Jairo Saul Cajina be under the supervision of the Commissioner of the ACT Corrective Services or his delegate for the period of the Good Behaviour Order or such lesser period as the person supervising considers appropriate and that he obey all reasonable directions of the person supervising him, including reporting to that person his progress under the additional conditions of the Good Behaviour Order; e. Jairo Saul Cajina submit himself for assessment to Canberra Recovery Hub, 1 Elder Street, Braddon ACT on or before 21 April 2022 and, if assessed as suitable, commence the program of Alcohol and Drug Treatment and, subject to condition (f), complete the program; f. That Jairo Saul Cajina seek admission to the 12 weeks residential drug rehabilitation program of Canberra Recovery Services, Fyshwick and, if found suitable, enter and complete that program; g. That Jairo Saul Cajina engage in any other drug and alcohol treatment program as directed by the person supervising him; h. That Jairo Saul Cajina engage with a psychologist in counselling for his mental health as directed by the person supervising him and consent to the person supervising him making available to that psychologist a copy of the Psychological Report of Leesa Morris dated 15 September 2021; i. That Jairo Saul Cajina report to ACT Corrective Services by 4:00 pm 19 April 2022 to arrange supervision; j. That Jairo Saul Cajina appear in Court on 24 April 2022 at 2:30 pm and thereafter when required by the Court, either in person or, if the Court permits, by electronic means, to report on progress of his drug rehabilitation and psychological counselling; k. That Jairo Saul Cajina participate in the Care and Protection List, including in any assessment for that List and appear in the ACT Magistrates Court for that List on 24 May 2022; and l. Jairo Saul Cajina is not to consume cannabis, alcohol or illicit drugs. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Breach of Good Behaviour Order – Further offending – Threatening to inflict grievous bodily harm – Damage of property – Possession of knife and offensive weapon – Subjective circumstances – Good Behaviour Order |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), ss 7, 10 |
Cases Cited: | Channon v The Queen (1978) 20 ALR 1 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 Wyper v The Queen [2017] ACTCA 59 R v Cajina [2021] ACTSC 353 R v Connors (No 2) [2022] ACTSC 384 Guy v Anderson [2013] ACTSC 5 Saga v Reid and Collett [2010] ACTSC 59 Director of Public Prosecutions (New South Wales) v Cooke [2007] NSWCA 2; 168 A Crim R 379 R v Kelly (No 2) [2021] ACTSC 253 Barron v Laverty [2019] ACTSC 198; 346 FLR 442 R v Ngerengere (No 5) [2016] ACTSC 388 R v Verdins [2007] VSCA 102; 16 VR 269 |
Texts Cited: | Australian Law Reform Commission, Pathways to Justice–Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (Report No 133, December 2017) |
Parties: | Director of Public Prosecutions ( Crown) Jairo Saul Cajina ( Offender) |
Representation: | Counsel C Daly ( Crown) J Johnson ( Offender) |
| Solicitors ACT Director of Public Prosecutions Hugo Law Group ( Offender) | |
File Numbers: | SCC 263 & 264 of 2020 |
REFSHAUGE AJ:
Introduction
1․In the Supreme Court of the Australian Capital Territory, imprisonment is the most common of the sentences to be imposed, whether they are to be fully served subject to a Parole Order, or partly or wholly suspended. This is, no doubt, principally because of the fact that the Court generally deals with the more serious offences.
2․The purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) lists seven purposes. Though one is “to protect the community from the offender”, all but one can be subsumed under the general aim of protecting the community: see Channon v The Queen (1978) 20 ALR 1 at 5. Thus, punishment is the consequence of breaching society's norms, so making compliance with them more attractive, preventing further crime by general and specific deterrence and rehabilitation clearly go to to protect the community (see Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 573 [32]) and denouncing the conduct of the offender, reinforces society's norms, and also encouraging compliance.
3․While recognising the harm to the victim and the community is not quite within the same objective, it does reinforce the role of the state to address crime and to protect the community by minimising, for instance, self-help actions by those harmed and sometimes giving offenders an insight into the extent of harm they cause victims without appreciating it.
4․In 1978, and for many years before then, Courts had little option except a custodial penalty for sentencing serious offenders: see Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 at 302 [3]-[4].
5․Thus, Brennan J could point out in Channon v The Queen at 6 that “[t]hough punishment is not the end which sentencing seeks to achieve, it is usually the only means which the court has at its disposal”.
6․Those days have changed: see Cotter v Corvisy at 302-303 [5]. Now there are more options, but still, for more serious offences, imprisonment, though the last resort (s 10(2) of the Sentencing Act), is almost always the only option: see, for example, Wyper v The Queen [2017] ACTCA 59 at [114]-[115].
7․A number of other options are, however, being pursued in the community. For example, justice reinvestment is an important program that would redirect resources from the criminal justice system into local communities with a high concentration of incarceration and contact with the criminal justice system to address the causes of offending and endeavour to prevent it: see Australian Law Reform Commission, Pathways to Justice–Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (Report No 133, December 2017).
8․Another option is the Justice Reform Initiative (JRI), an alliance of distinguished former judges, former politicians, former senior public servants and some continuing public servants and other officers, especially in the criminal justice system, and community leaders who believe that there is a need for reform in the criminal justice system to reduce the overuse of incarceration: see Justice Reform Initiative, Breaking the Cycle of Incarceration (Report, July 2021). The recognition of the limits to the effectiveness of imprisonment is not new. Thus, in Justice François Kunc’s article, ‘Who are the recidivists?’ (2016) 90 (12) Australian Law Journal 848 at 849, the learned author commented, “the deterrent effect of prison is very low”.
9․The above initiatives and proposals mentioned are, of course, not currently part of the law that must be applied by the Courts, though some of the criticisms of incarceration can be relevant in appropriate cases. The law on sentencing is relatively clear as set out in general terms above and in other decisions. It must now be applied in this case.
10․Jairo Saul Cajina has admitted that he breached a Good Behaviour Order that the Court made when sentencing him. It is now up to the Court to take appropriate steps to address the breach.
11․At the hearing of the breach proceedings, the Court received and read an affidavit of a Corrective Services Officer who deposed to Mr Cajina's failure to comply with the probation conditions attached to the Good Behaviour Order attached to the suspended sentence.
12․Also received were the following materials:
(a)a patient summary from Winnunga Nimmityjah Aboriginal Health and Community Services (Winnunga Nimmityjah Health Services) of Mr Cajina's attendance there on 21 and 25 January 2022;
(b)a letter of support from the mother of Mr Cajina’s partner;
(c)a letter from Canberra Recovery Hub of Canberra Recovery Services, a well-known and well-respected drug and alcohol rehabilitation facility;
(d)a letter from Justice Health Services dated 14 January 2021;
(e)a letter of his participation in an opioid maintenance treatment program; and
(f)a letter from his parents.
13․All these documents were admitted into evidence, there being no objection to their tender and no challenge to their contents.
14․Oral evidence was given from Mr Rodney Taylor, a Community Corrections Officer of ACT Corrective Services, and Mr Sean Wiles, Assistant Director in the ACT Courts and Tribunals Registry and the Co-ordinator of the Child Protection Intensive List. Also read were the exhibits from the sentencing proceedings, especially a report from psychologist, Ms Leesa Morris. Helpful submissions were made by Ms Claire Daly, counsel for the Crown, and Mr J Johnson, counsel for Mr Cajina.
15․From this material, the following findings are made.
The facts
16․On 9 November 2021, Mr Cajina was sentenced in this Court to nine months imprisonment for four offences, being threatening to inflict grievous bodily harm, damaging property, possessing an offensive weapon, and possessing a knife in a public place.
17․Because of his pre-sentence custody, the sentence commenced on 2 August 2021 and ended on 1 May 2022.
18․The sentence was then suspended from 9 November 2021 and, as required, a Good Behaviour Order made for a period of 18 months with conditions including a probation condition, a condition that he seek residential drug rehabilitation and, if found suitable, undergo the program, that he engage with a psychologist, and that he appear in Court on 21 January 2022: see R v Cajina [2021] ACTSC 353 at [137] (‘R v Cajina’).
19․A letter was sent to Mr Cajina on 22 November 2021 requiring him to report to ACT Corrective Services on 30 November 2021. He did not do so.
20․He did, however, telephone ACT Corrective Services to advise that he had forgotten to attend the appointment and to provide his contact telephone number. He was advised that he would be telephoned with a new appointment. That call made on 13 December 2021 directed him to attend on 15 December 2021, but he did not do so. He was telephoned on that day, directing him to contact his supervising officer, but he did not do so.
21․He was further contacted on 21 December 2021 and directed to attend the next day. He did so and was subject to urinalysis which showed a preliminary result for buprenorphine associated with opioid maintenance treatment, morphine, methylamphetamine and amphetamine, the latest illicit drugs.
22․On 10 January 2022, results from a pathology laboratory confirmed those initial results.
23․Mr Cajina was directed to attend at ACT Corrective Services on 6 January 2022, but did not do so.
24․On 21 January 2022, Mr Cajina did not appear in Court as required under the conditions of the Good Behaviour Order. No contact had been made by him and a warrant was issued for his arrest.
25․On that day, however, Mr Cajina had attended at the Winnunga Nimmityjah Health Service shortly before 4:15pm with a sore throat and headache. He was diagnosed with an acute respiratory viral infection and directed to go home.
26․He attended again on 25 January 2022 at about 9:20am, and the diagnosis was confirmed and again he was referred home.
27․Apart from as mentioned below, he has not engaged with psychological counselling or drug and alcohol treatment.
28․Mr Cajina and his partner have a one-year-old daughter who appears to be in kinship care with his partner's mother. Mr Cajina has, since his release from custody in November 2021, had regular visits to see his daughter. His partner's mother says that she feels that she has “gotten to know Jairo well. He is becoming confident in his parenting and has continued to be polite, respectful, and softly spoken around” her and his daughter.
29․The custody of his daughter, it appears, is subject to consideration before the Children's Court within what is known as the Care and Protection Intensive List of the Children's Court (CPIL) established by that Court and explained in ACT Magistrates Court’s Practice Direction No 1 of 2021: Care and Protection Intensive List, 2 March 2021. It is an alternative to regular care and protection proceedings and is accessible first by a clinical screening eligibility assessment by a mental health, social work or drug and alcohol worker.
30․If assessed as eligible, the parents are directed to undertake an independent family assessment which is then reported to the Magistrate. If found suitable, a family recovery plan is developed, and appropriate orders can be made. Progress review conferences are then held by a Magistrate. There are three phases for the program:
(i) stabilisation and compliance monitoring (minimum four months);
(ii) building foundations and progression (minimum three months); and
(iii) consolidation and restorative phase (minimum three months).
31․On 15 November 2021, Mr Cajina and his partner were referred to an independent assessor. His partner was assessed, and while, Mr Cajina completed a survey instrument and has been interviewed, both with his partner and separately, he failed to maintain communication with the independent assessor.
32․The proceedings were in Court on 3 January 2022. Mr Cajina failed to appear and it was reported that he had made no contact.
33․The proceedings were adjourned to 24 May 2022 for the final assessment and to allow Mr Cajina to complete a program at Canberra Recovery Hub, an agency of Canberra Recovery Services.
34․His partner started the residential program of 12 weeks in January and is expected to complete it by the end of April. Mr Cajina has made contact with Canberra Recovery Hub and has expressed interest in attending the Hub to address his alcohol and drug issues. He can be assessed shortly after his release from custody. It is suggested by the intake officer in the letter from the Hub that there is a “low threshold of acceptability into” the program, so “the likelihood [he] … would be accepted is high”. He is hopeful that he can transfer to the residential program in the next eight weeks.
35․He has committed to recovery so as to be able to care for his daughter, which will require him to show more dedication to the various rehabilitation commitments he needs to address with more than he has shown so far.
36․In R v Cajina at [88]-[97], there was a summary of the assessment by Ms Morris in her psychological report. She opined that he “has noted difficulty regulating his effective cognitive and behavioural choices since early adolescence”. She also noted that he “[h]as strong insight into his intellectual functioning, however his psychological self-awareness is minimal at present”, though she added that he, “possesses more than sufficient intelligence to learn and develop in this area”, and “given the appropriately formed supports, has the capacity to engage with intervention”.
37․Ms Morris noted that, unfortunately, he has “a history of identity instability from his early adolescence which appears to have driven his substance abuse”, and that his “ability to manage around associations with his identity/judgment vulnerabilities has likely been reduced”.
38․He was, as noted in R v Cajina at [97], assessed as meeting the criteria for Post-Traumatic Stress Disorder as well as a severe substance disorder and “the history of trauma impact by decreasing stress tolerance due to an overactivated sympathetic nervous system. This results in more sensitive 'fight or flight' response where particular triggers are activated”, impairing his capacity for rational judgement.
39․Mr Cajina's parents have written of their “unwavering commitment to provide [him] with the family support needed” and, further, that they are prepared to have him live with them and they will assist him to meet his commitments.
40․Mr Cajina has admitted that he breached conditions of the Good Behaviour Order by failing to submit to probation supervision and failing to attend Court. Mr Cajina was arrested on 18 February 2022 under the warrant issued by this Court. He was remanded in custody and has been in custody since then, a total to today of 26 days.
41․The Court was informed that a charge had been prepared alleging that, it appears, in December 2021, Mr Cajina committed an assault occasioning actual bodily harm. The charge is to be mentioned on the first occasion in the Magistrates Court on 14 June 2022. No statement of facts is available to this Court. Were he to be found guilty, that would be a breach of the Good Behaviour Order.
42․As noted in R v Connors (No 2) [2022] ACTSC 384 at [58], the question of further offending is problematic. Mr Cajina has not pleaded guilty to this charge, though it is accepted that he may do so. As noted, the charge is listed for mention on 14 June 2022, and it may then be adjourned, so the finalisation of it is some way off. I have not seen any of the evidence for it.
43․Given that there is no finding of guilt, it would be unfair and contrary to principle to proceed as if such a finding had been or will be made, even though that may be the case.
Jurisdiction
44․Since this Good Behaviour Order was made when a sentence of imprisonment imposed on Mr Cajina was suspended, s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) applies. It requires the Court, if satisfied that Mr Cajina has breached any of the good behaviour obligations, to cancel the Good Behaviour Order and either impose the suspended sentence or resentence Mr Cajina. The Good Behaviour Order obligations include, as well as the statutorily imposed condition (s 86), that he must not commit any further offences. Additional conditions were included when the Good Behaviour Order was made.
45․The approach to be taken to the exercise of this power has been considered by this Court. In Guy v Anderson [2013] ACTSC 5 at [83]-[87], the Court considered a number of authorities and identified the issues for consideration in deciding how to proceed. Thus, there is no presumption in favour of imposing the original sentence. Once a breach is proved, the Court has a discretion, but requires the Court to have as much material as possible about the facts, including the offender's behaviour since the Good Behaviour Order was made.
46․While there is no presumption in favour of imposing the original sentence, there is a need to ensure that the Court's response does not undermine the nature of the sentence as clearly was done in Victoria: see Sentencing Advisory Council (Victoria), Suspended Sentences: Final Report–Part 1 (Report, May 2006) at 27-29. In Saga v Reid and Collett [2010] ACTSC 59 at [99], the Court cited what had been said by Howie JA in Director of Public Prosecutions (New South Wales) v Cooke [2007] NSWCA 2; 168 A Crim R 379 at 386-387 [23] as follows:
There is nothing more likely to bring suspended sentences into disrepute than the failure of courts to act where there has been a clear breach of the conditions of the bond by which the offender avoided being sent to prison. Notwithstanding what has been stated about the reality of the punishment involved in a suspended sentence, if offenders do not treat the obligations imposed upon them by the bond seriously and if courts are not rigorous in revoking the bond upon breach in the usual case, both offenders and the public in general will treat them as being nothing more than a legal fiction designed to allow an offender to escape the punishment that he or she rightly deserved.
47․Nevertheless, the discretion must be exercised judicially, and Courts have identified a number of issues that need to be considered. They were summarised recently in R v Kelly (No 2) [2021] ACTSC 253 at [15] as follows:
(a) the proportion of the Good Behaviour Order served before the breach occurred: R v Curtis(No 2) [2016] ACTSC 34 at [18];
(b) the rehabilitation achieved in the time during which the Good Behaviour Order has been served: R v Curtis(No 2) at [18];
(c) the prospects of further rehabilitation: R v Curtis (No 2) at [18];
(d) the relative seriousness of the offence, or offences, which constituted the breach of the Order, and, in particular, whether imposing the suspended sentence would be disproportionate to that seriousness: Saga v Reid and Collett at [88];
(e) whether the breaching offence, or offences, is, or are, of similar conduct: R v CA [2016] ACTSC 378 at [21];
(f) whether the breach is, or breaches are, so serious as to show a disregard of the need to be of good behaviour: R v Ogilvie at [38];
(g) whether the offender has been warned of the breaches, especially if they are not breaches constituted by further offending: R v Cuthel [2016] ACTSC 91 at [18]; R v Ogilvie at [75];
(h) the offender's level of understanding of the obligations and the terms of the Good Behaviour Order and of the consequences of the breach: R v PM(No 2) [2015] ACTSC 358 at [20]-[22]; and
(i) the nature of judicial and community resources previously devoted to the offender: R v Bennett [2017] ACTSC 104 at [11].
48․For completeness, it is noted that, were the Court to proceed to resentencing, it may impose a more lenient sentence but not impose one that is more severe: see Barron v Laverty [2019] ACTSC 198; 346 FLR 442 at 454-455 [88]-[90] (‘Barron v Laverty’).
49․Further, any period in custody prior to dealing with the breach must be taken into account: see R v Ngerengere (No 5) [2016] ACTSC 388 at [34].
Consideration
50․The Crown submits that the breaches by Mr Cajina are flagrant and ongoing; they commenced within a month of the Good Behaviour Order being made.
51․While that is certainly not an unfounded submission, the factual situation is more complex. Mr Cajina has not completely failed to address the issues encompassed in the Good Behaviour Order obligations. He did make some contact with ACT Corrective Services, though minimal; one phone call and one attendance.
52․Further, while his failure to contact the Court or ACT Corrective Services as to his situation when he was required to be in Court, he was ill on the day he was required to be in Court and that illness required him to be at home under medical direction and continued for at least four days; not an insignificant period of time.
53․He did make some contact with the independent assessor required to assess his suitability for the Care and Protection Intensive List, though that lapsed.
54․Mr Johnson submitted that Mr Cajina's non-compliance is at least partly attributable to his mental condition whereby he becomes stressed, which activates his flight response. While that is fairly based on the evidence, it does however present as a “two-edged sword” for it might taken to also suggest that, were Mr Cajina to be resentenced to a further Good Behaviour Order, he would still face the same difficulties which make compliance problematic. That would set him up to fail.
55․While late, Mr Cajina does appear to have accessed drug rehabilitation and, if his partner's experience is anything to go by, he may well be able to access the residential program for at least eight, if not twelve, weeks. Mr Johnson also referred to Mr Cajina's commitment to his daughter and his family, and members of his family, and his partner have been in Court.
56․On the other hand, such a commitment did not prevent him from ceasing his contact with the drug and rehabilitation agency and also the independent assessor, who was likely to be the best pathway for him to be able to regain custody of his child. That motivation did not overcome whatever it was that caused his failures.
57․The original offences were serious and threatened the vulnerable occupants of a house where they should expect to feel safe. Mr Cajina was obviously disinhibited by drug use which seemed to allow his emotions to get the better of him. In addition, his mental health was such as to reduce his moral culpability in accordance with the principles set out in R v Verdins [2007] VSCA 102; 16 VR 269 at 276 [32].
58․One of the conditions to the Good Behaviour Order required Mr Cajina to engage with a mental health professional. There was no evidence to suggest that he had done so and it might be suggested that this was something that he would really need the help of ACT Corrective Services to facilitate effectively.
59․That would require, of course, contact with ACT Corrective Services, which was minimal and ultimately ceased. The breaches committed by Mr Cajina in all the circumstances, which include the period he has now spent in custody on remand, do not seem proportionate to the imposition of the original sentence, especially given that he has already served a few days over three months of the original sentence.
60․The final question is whether to reimpose a Good Behaviour Order, with opportunity and probably tighter and refashioned conditions, and whether that is likely to receive a better outcome.
61․Mr Johnson made further submissions providing alternative regimes for proceeding, suggesting that it would be of assistance to Mr Cajina’s compliance with his obligations if he were to live with his parents, who, perhaps, unsurprisingly, remain committed to him. He also submitted that a curfew would be a further protective factor.
62․The Crown submitted that living with his parents as a 42-year-old would be unlikely to have much effect in ensuring that he complied with his obligations under any Good Behaviour Order and submitted that the curfew, while addressing any activity after hours, would not encourage compliance. It was further submitted that, were he to be convicted of the further offence or placed in custody for these, or a cancellation of the Good Behaviour Order for breach, he would not be denied access to the CPIL.
63․These are valid submissions and should be given careful consideration.
64․It was further pointed out that the only urinalysis carried out for Mr Cajina showed use of illicit drugs. That Mr Cajina wished to regain custody of his daughter had not encouraged other than the most limited of engagement with relevant agencies. Giving as much consideration as reasonable, it is to be noted that there have been some changes. Mr Cajina has been in custody for some time now, showing the seriousness of the failures to engage and the consequences.
65․There is no doubt that since 17 December 2021, he has effectively ceased to engage with either ACT Corrective Services or with the independent assessor for CPIL.
66․Nevertheless, Mr Cajina's personal circumstances are to be noted. This was described in R v Cajina at [46]-[74]; what was said there must be taken into account. In particular, Ms Morris opined that Mr Cajina's prospects of rehabilitation would be “vastly improved with sufficient support through substance use and psychological intervention and open discussion with [Child and Youth Protection Services]”. This was the point of the terms of the conditions to the Good Behaviour Order.
67․It is clear that Mr Cajina has not fully or properly engaged. On the other hand, he has a long and serious criminal record with many sentences of imprisonment, though recently none as long as the one imposed for the current offences. There are, however in his past, sentences of 12 months and in 2003 a sentence of four years imprisonment, though part of it suspended. The reality is that this has not deterred him from further offending.
68․It seems worth attempting one further occasion to get him to engage. While his parents do not have the control that they would have over a young child, they can put some pressure on him and encourage him to engage.
69․In addition, while, at the last moment, he has inquired of Canberra Recovery Services about rehabilitation, and it appears that he may have a glimmer of understanding that he must take steps or else he is likely to lose any opportunity to be a real father to his daughter.
70․Nevertheless, he needs to be held to account and to know that such breaches will attract real sanctions. The current period of less than a month in custody does not seem sufficient. More is required. It does further seem that some encouragement may assist through having still some of the sentence of imprisonment hanging over his head - a “sword of Damocles”: see Barron v Laverty at 454 [85].
71․Further, it is noted that, were the whole of the suspended part of the sentence to be imposed now, Mr Cajina, who is not eligible for a parole period, would be released into the community without any form of supervision which should be somewhat extended beyond the current period to make up for the period of custody and non-engagement. It does not seem that, in the circumstances, this would breach the Human Rights Act 2004 (ACT).
[His Honour speaks directly to the offender]
72․Mr Cajina, please stand.
(1)The Good Behaviour Order made on 9 November 2021 be cancelled.
(2)The convictions for threatening to inflict grievous bodily harm, damaging property, possessing a knife in a public place and possessing an offensive weapon be confirmed.
(3)For the offence of threatening to inflict grievous bodily harm, you be sentenced to six months imprisonment, to commence on 15 November 2021 and end on 14 May 2022.
(4)For the offence of damaging property, you be sentenced to two months imprisonment, to commence on 15 April 2022 and end on 14 June 2022.
(5)For the offence of possessing a knife in a public place, you be sentenced to three months imprisonment, to commence on 15 April 2022 and end on 14 July 2022.
(6)For the offence of possessing an offensive weapon, you be sentenced to three months imprisonment, to commence on 15 May 2022 and end on 14 August 2022.
(7)The total sentence of nine months be suspended from 18 April 2022 for 15 months.
(8)You be required to sign an undertaking to comply with the Offender’s Good Behaviour Obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for 15 months from 18 April 2022 to 17 July 2023 with the following conditions:
(a)Subject to condition (c), you reside at 2 Prisk Place, Bonython ACT;
(b)While residing in accordance with condition (a), you be at your place of residence between 8:30 pm each day and 7:00 am the next day, except in the case of an emergency, and present yourself to the front door of the residence at any time during those hours as requested by a police officer;
(c)Despite condition (a), you may reside at 3/26 Goldner Circuit, Melba ACT when your partner, Bronwyn Bridges, is residing there;
(d)A probation condition that you be under the supervision of the Commissioner of the ACT Corrective Services or his delegate for the period of the Good Behaviour Order or such lesser period as the person supervising considers appropriate and that he obey all reasonable directions of the person supervising you, including reporting to that person your progress under the additional conditions of the Good Behaviour Order;
(e)You submit yourself for assessment to Canberra Recovery Hub, 1 Elder Street, Braddon ACT on or before 21 April 2022 and, if assessed as suitable, commence the program of Alcohol and Drug Treatment and, subject to condition (f), complete the program;
(f)That you seek admission to the 12 weeks residential drug rehabilitation program of Canberra Recovery Services, Fyshwick and, if found suitable, enter and complete that program;
(g)That you engage in any other drug and alcohol treatment program as directed by the person supervising you;
(h)That you engage with a psychologist in counselling for your mental health as directed by the person supervising you and consent to the person supervising you making available to that psychologist a copy of the Psychological Report of Leesa Morris dated 15 September 2021;
(i)That you report to ACT Corrective Services by 4:00pm 19 April 2022 to arrange supervision;
(j)That you appear in Court on 24 April 2022 at 2:30pm and thereafter when required by the Court, either in person or, if the Court permits, by electronic means, to report on progress of your drug rehabilitation and psychological counselling;
(k)That you participate in the Care and Protection List, including in any assessment for that List and appear in the ACT Magistrates Court for that List on 24 May 2022; and
(l)You are not to consume cannabis, alcohol or illicit drugs.
73․Mr Cajina, that is the sentence that I have imposed, and it will be explained to you by Mr Johnson, but, I have got to say a few more things to you about that sentence. It is the same sentence as I imposed first. This was a very vicious and nasty attack for completely the wrong reasons. I understand that your drug use and your mental health let your emotions run away with you and you have terrified some people for no good reason.
74․That deserved nine months imprisonment, but again, I am giving you an opportunity to spend only a little over a month further in prison because of your failure to actually do what I asked you on the last occasion. I gave you an opportunity. You kind of started that, but you really did not get into that and you keep saying “I want to improve. I want to get my daughter back. I want to be a parent”, but you do not do anything about it.
75․Hopefully your parents will help you engage and then you can move back with your partner and hopefully she has learnt something from her time at Canberra Recovery Services and she will be supportive of you. Presumably, she wants your daughter back with her, preferably with both of you, at least as much as you do, but you have got to translate it into action. You have got to step up. You have got to do what is required. You have got a severe drug use disorder. That is not going to go away overnight. The first time you actually went to Corrective Services you tested positive on your urinalysis for drugs. You are still using drugs.
76․It is going to be hard; I understand that. It is not going to be easy, but you have got to do it. These people will help you, but only if you let them, and that means you have got to engage. Hopefully your parents will help you to get there and start the process and it will be easier the more you go on. It will be easier just in the same way, after so many years in gaol, it is easier to just go back there and you know the routine and you get on with it. Well, you do not want that. You do not want that to be the memory of your daughter. You have got to overcome that and you have got to put some effort into this.
77․Now, you did not treat what I offered you last time seriously, so you have got to pay the price, but I have made it a minimal price and that is two months imprisonment. You have still got prison hanging over your head. That is meant to be an encouragement for you to say, “I do not want this”. If you genuinely do not want that anymore, here is your chance, but you have got to take the steps. You have got to do the effort. You have got to get on with it.
78․If this does not work, then you will just have to stay in custody until you finally get the personal strength actually to do something for yourself. There will be people who can help you and this points you in their direction, but you have got to speak to them. You have got to talk to them. You have got to attend on them. You have got to do that. So, I hope it works and I hope the courts don't see you again. Well, they will see you again on 14 June. You have still got that problem to deal with, but no doubt Mr Johnson will advise you about that and work out what you do about that.
79․But the more you get yourself into a good place, the more rehabilitation you do, drug and alcohol treatment, mental health treatment, get your assessment with the CPIL assessor, the more you do there, the better it will go for you in Court. So, if you are genuine, then there is a possibility, but you have got to commit yourself to it and you have got to be energetic about it and do it. I do not know how else to say it, but that is what you have got to do.
80․You may be seated.
| I certify that the preceding eighty [80] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Refshauge. Associate: Isobel Harris and Julia Liu Date: 12 January 2024 |
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