R v Chemhere (No. 2)
[2016] ACTSC 62
•22 March 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Chemhere (No. 2) |
Citation: | [2016] ACTSC 62 |
Hearing Date: | 1 March 2016 |
DecisionDate: | 22 March 2016 |
Before: | Refshauge J |
Decision: | 1. The conviction for aggravated burglary committed on 27 July 2011 is confirmed. 2. It is noted that on 25 March 2013 Mr Chemhere was sentenced to nine months imprisonment for that offence and that this period was suspended on that date and a Good Behaviour Order then made. 3. It is found that Mr Chemhere breached that Good Behaviour Order by committing further offences punishable by imprisonment during the period of the Good Behaviour Order. 4. The Good Behaviour Order of 25 March 2013 be cancelled. 5. Mr Chemhere is sentenced to imprisonment for nine months, to commence on 1 June 2016 and end on 28 February 2017. That is to be concurrent as to three months on the sentence he is currently now serving. 6. A new non-parole period is set to commence on 1 July 2015 and to end on 31 March 2016. |
Catchwords: | CRIMINAL LAW – Jurisdiction, practice and procedure – judgment and punishment – sentencing – breach of Good Behaviour Order by further offending – aggravated burglary – mental health problems – paranoid schizophrenia – drug-induced psychotic episode – psychiatric treatment order – drug abuse – alcohol abuse – substance abuse disorder – return to community following residential drug rehabilitation – relapse into drug and alcohol abuse – failure to engage with support services – intensive supervision required – extended period of parole |
Legislation Cited: | Criminal Code 2002 (ACT), s 312 |
Cases Cited: | AB v R (1999) 198 CLR 111 |
Parties: | The Queen (Crown) Peter Isheunesu Chemhere (Defendant) |
Representation: | Counsel Mr D Sahu-Khan (Crown) Mr R Davies (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid (ACT) (Defendant) | |
File Number: | SCC 362 of 2011 |
REFSHAUGE J:
In some ways the most dangerous time for the protection of society, which is the aim of the criminal law, is the period immediately after an offender leaves prison. Without support, employment, supported accommodation and the like, an ex-detainee is likely to return to old haunts, old habits and, perhaps most riskily, to old associates. This makes the relatively recent ACT initiative of Throughcare such an important element of the Territory's penal system. It is as fundamental an element as the deterrence, retribution and incapacitation which are the more commonly cited elements of that penal system.
There is a similar risk when those who have succumbed to the pernicious scourge of drug addiction leave residential therapeutic facilities. Without ongoing support from pro-social networks and agencies they will, like ex‑detainees, revert to the environment they know, and that inevitably leads them back to associating with fellow drug users, and the consumers of the product that is promoted by those drug dealers.
That appears to be the path followed by Mr Isheunesu Chemhere, who stands for sentencing for breach of a Good Behaviour Order made when a sentence of imprisonment for a serious offence of aggravated burglary was suspended. I do not suggest that responsibility to prevent such relapse is only that of the government. Former offenders are responsible for their own choices. When, however, those choices are limited, or one choice is exceptionally more difficult than another, we should not be surprised if the wrong choice is made. The tragedy is that the effort that imprisonment or rehabilitation has made is then largely wasted.
Aggravated burglary is an offence contrary to s 312 of the Criminal Code 2002 (ACT), for which the maximum penalty is 2000 penalty units (that is, at the time a fine of $220,000) and imprisonment for 20 years. The maximum penalty is a yardstick against which a sentencing court is to measure the seriousness of an offence, as has been pointed out by the High Court on many occasions. See, for example, AB v R (1999) 198 CLR 111.
The facts
The facts of the offence are set out in my remarks on sentence: R v Chemhere (Unreported, Supreme Court of the Australian Capital Territory, SCC 362 of 2011, Justice Refshauge, 6 July 2012). I refer to this decision in these reasons as “the sentencing remarks”. I do not need to repeat my sentencing remarks in describing the offence, but incorporate them in these reasons.
In summary, Mr Chemhere was encouraged by a co‑accused to commit a burglary to steal money or goods that could be exchanged for money with which to buy drugs. They both entered residential premises in Griffith, ACT. They took some coins that were ultimately recovered. The occupant, a woman aged 89, was in the premises asleep. She was awoken by her telephone ringing, not by Mr Chemhere and his co‑accused entering the premises. When she appeared, Mr Chemhere and his co‑accused left almost immediately. The elderly occupant was, as might be expected, very upset by the invasion of her home.
Proceedings
Mr Chemhere was arrested shortly after he left the premises and, when he appeared in the Magistrates Court, was remanded in custody. He was granted bail about a month later, but returned to custody after being arrested following his failure to appear in court in accordance with his bail undertaking. He entered a plea of not guilty and was committed to this Court for trial on 27 October 2011. On 11 November 2011, he was again granted bail, but it was later revoked on 7 May 2012 because he had breached a condition of his bail that he not be in the possession of alcohol.
An issue arose as to whether Mr Chemhere was fit to plead. It took some time to obtain a psychiatric report, partly because Mr Chemhere missed appointments for his psychiatric examination. On 8 May 2012, however, Nield AJ held that Mr Chemhere was fit to plead. See R v Chemhere (Unreported, Supreme Court of the Australian Capital Territory, SCC 362 of 2011, Acting Justice Nield, 18 May 2012). A date for trial was set to commence on 25 June 2012. Two applications for bail were refused subsequently and, on 12 June 2012, Mr Chemhere pleaded guilty to one of the counts on the indictment, namely, the charge of aggravated burglary. As required by R v DF (No 2) (2012) 257 FLR 31 at 38; [45], a Notice Declining to Proceed (nolle prosequi) was filed in respect of the other charge.
Mr Chemhere was sentenced, on 6 July 2012, to 15 months imprisonment to commence on 6 January 2012, to take into account his various periods of pre‑sentence custody when bail was refused. He was released on that day when the sentence was suspended and a Good Behaviour Order made for two years with a probation condition, including a requirement to obey all reasonable directions as to drug and alcohol counselling and treatment, and mental health counselling and treatment.
On 22 February 2013, however, a summons was issued for Mr Chemhere's appearance in court to answer an allegation that he had breached the Good Behaviour Order by failing to accept supervision under the probation condition of the order. Despite service of the summons, Mr Chemhere did not appear on the return date and a warrant was issued for his arrest. He was arrested and appeared in court on 14 March 2013 and was released on bail.
On 25 March 2013, he admitted the breach of the Good Behaviour Order. As required under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT), the Good Behaviour Order was cancelled by Nield AJ and Mr Chemhere was sentenced to imprisonment for nine months, immediately suspended for one year and six months, and a further Good Behaviour Order was made for that period, again with a probation condition. That Good Behaviour Order expired on 24 September 2014.
On 4 June 2013, however, Mr Chemhere was arrested and charged with making a threat to inflict grievous bodily harm committed the day before, on 3 June 2013. He appeared in the ACT Magistrates Court on that day, but the record is not clear as to the progress of the proceedings in that court. He was also charged with possessing a knife without reasonable excuse, assault occasioning bodily harm, common assault and failing to appear in court in accordance with his bail undertaking.
In any event, he was convicted of all these offences and, on 4 November 2015, he was sentenced to a total period of 15 months imprisonment to commence on 1 July 2015, with a non-parole period of nine months, to end on 30 March 2016. He was also committed to this Court under s 107 of the Crimes (Sentencing) Act 2005 (ACT), for his conviction of the offence committed on 3 June 2013 constituted a breach of the core conditions of the Good Behaviour Order made on 25 March 2013. See s 86 of the Crimes (Sentence Administration) Act.
Mr Chemhere has applied for parole. ACT Corrective Services has advised that, unless, in sentencing Mr Chemhere consequent upon his breach of the Good Behaviour Order, I set a date other than 31 March 2016 as the date on which he becomes eligible for parole, the sentence I impose should not make an impact on his parole application. I assume that means a negative impact.
Subjective Circumstances
I set out the subjective circumstances of Mr Chemhere in my sentencing remarks. I do not need to repeat them and again incorporate them in these reasons. I also had, however, a substantial amount of further material tendered on the hearing of these proceedings which allows me to make further findings, which I do.
I may summarise the background personal circumstances of Mr Chemhere as follows. He is now a 28-year-old man, born in Zimbabwe, the third of his parents' four children. He came to Australia with his mother when he was 17. He was educated to Year 9 but struggles with literacy. He has made attempts to improve his education but without much success.
He has had some employment as an aged care worker and as a labourer and a kitchen worker, but has also had long periods of unemployment, which appears to be the situation before his current imprisonment.
He has had a number of casual relationships, but had a significant relationship which has produced a child. The mother, his partner, however, returned to Zimbabwe so as to have a culturally appropriate birthing experience. I have no information about the current status of this relationship, though it appears that he has still not seen his daughter.
He has a relatively short criminal history, though it has escalated more recently. He has 16 offences on his record. The earlier offences were mainly traffic offences, "street" offences, or other minor offences. The more recent offences, being that for which I dealt with him and those which breached the Good Behaviour Order, are somewhat more serious: aggravated burglary; assault occasioning actual bodily harm and making an intentional threat to inflict grievous bodily harm.
Somewhat worryingly, he has also failed to comply with his bail undertakings on four occasions and has been dealt with for breaches of Good Behaviour Orders on two previous occasions, this present one making a third. He cannot, of course, be punished again for his criminal history, but it is an important indicator of whether he poses a risk to the community, whether he has reasonable prospects of reform and what his likely response is to a community based order.
His main problems are misuse of drugs and alcohol and his mental impairment. He has had a major problem with alcohol, which he first started consuming when he was 13 years old. He drinks to excess, even, he said, until he "blacks out". Although I did not have an up‑to‑date report on his present consumption, other than a report in April 2014 that stated that at that stage he did not drink alcohol, it is not clear what the present position is. In June 2015, he was seen intoxicated carrying an open bottle of whiskey.
The most recent reports, however, do not seem to refer to alcohol as much as to illicit drugs. Mr Chemhere started using cannabis when he was 13 also and has used it nearly continuously since then, though he did cease its use at one stage in 2011. He has, however, returned to consuming it, at least until his present period of imprisonment began.
He first used amphetamines when he was 22, suggesting that, initially, the drug was not problematic. That situation has clearly changed to the extent that he has been diagnosed with a substance abuse disorder for cannabis and methamphetamine.
He entered the Karralika residential facility in September 2013. I have described that agency and its programs in R v Sladic [2014] ACTSC 56 at [23] and R v Kristiansen [2015] ACTSC 159 at [12]-[14]. He stayed for about 18 months. That period was very successful. He completed the program satisfactorily and was said by program staff to have demonstrated "a solid commitment to his ongoing recovery". He left the program with "insight and understanding" regarding the issues and behaviours underlying his difficulties with substance abuse and addiction.
He did leave into supported accommodation provided by the Canberra Men's Centre, now EveryMan, but his commitment and relationship with that agency did not progress well. That agency was to provide him with living skills and assist his transition process back into the community. His engagement with that agency was initially good but it has consistently declined over time, especially with his association with antisocial peers. He has, however, been compliant with bail supervision under ACT Corrective Services, though his compliance with directions for urinalysis has not been good.
The problem has been encapsulated in the following comment from a report of the Court Alcohol and Drug Assessment Service (CADAS):
Mr Chemhere reported that he has found it very difficult returning to live in the community following his long term residential treatment with Karralika. He stated that he has struggled to achieve his goals of gaining employment and making new friends away from his old friends, who remain drug using and who “put pressure on me to keep using drugs”. He stated that he feels socially isolated as he is single and lives alone on the disability support pension.
Mr Chemhere has, it seems, reverted to use of cannabis and methylamphetamine, at least until his recent imprisonment. He failed to comply with directions from ACT Corrective Services to undertake urinalysis on a number of occasions and, when he did so on 1 October 2015, the analysis proved positive for cannabis and methylamphetamine.
His mental health is also significantly problematic. He was first diagnosed with paranoid schizophrenia in December 2006 following a drug‑induced psychotic episode. He is currently subject to a psychiatric treatment order which requires him to have antipsychotic depot injections fortnightly. While he is apparently compliant with the order, the fact that such an order was made is a relevant factor in the assessment of his ability to comply with community based orders.
As noted above, his mental impairment was such that a question arose as to his fitness to plead, though that was resolved in finding him fit. His impairment is currently under control, and the most recent mental health report I had suggested that, while his mental health needs were being appropriately met, there were significant risks to his mental stability with illicit drug use and non-compliance with treatment.
The latter seems addressed by the psychiatric treatment order. The former is problematic, particularly in the light of what is described as his "chaotic drug using lifestyle". Indeed, the recent experience underlies the comment in a recent report that:
Mr Chemhere could be expected to find abstinence from drugs in the community significantly more challenging than in residential rehabilitation, and as such I would expect he will continue to require ongoing monitoring and intervention around illicit substance use if he is to maintain his current level of abstinence and prevent further offending. In light of his variable motivation and inherent vulnerabilities, I would recommend that he have a period of ongoing mandatory drug monitoring by Corrective Services and treatment whilst he makes the transition from rehabilitation to the community.
Mr Chemhere wrote me a letter, which I received. He said that he had been doing his best to change his behaviour over the past two and a half years. He acknowledged the help that he had gained from his time in Karralika, though he acknowledged that he had relapsed. He has again applied for rehabilitation; I assume residential rehabilitation.
This could be achieved under parole, but the problematic lack of supply of places in such facilities currently is worrying and makes early admission unlikely. He expressed a determination to leave the criminal justice system. I accept the sincerity of his wishes that he expresses, but I have to assess his ability to achieve those outcomes extremely cautiously.
The Offences
I have described, in my sentencing remarks, the offence for which I sentenced him in 2012. It was a serious offence, but not the most serious version of the offence, with few aggravating features. The more recent offences are serious also. They arise from his attendance at a supermarket, from which it appears he had been banned some time earlier.
When confronted by the duty manager and told to leave, he became aggressive and was joined by his brother and then he attacked the manager, punching him a number of times. When the store manager came to assist, his brother struck the store manager and Mr Chemhere made serious threats to return with a machete and cut the managers into little bits. The duty manager suffered a dislocated shoulder, which caused dizziness and nausea. Mr Chemhere then threatened to return with a machine-gun and kill the managers. He also threatened to get a knife and stab and "gut" them.
He failed to appear in court on one occasion in accordance with his bail undertaking and was charged with that offence. He was also approached by police on another occasion because he was carrying an open bottle of whiskey, despite a condition of his bail that he abstain from the use of alcohol. Police noticed, protruding from his pocket, a knife, and he was charged with possession of the knife without reasonable excuse. As noted above, he was sentenced to imprisonment for these offences.
Consideration
As the breach of the Good Behaviour Order made by Nield AJ on 25 March 2013 has been admitted, I must cancel it under s 110 of the Crimes (Sentence Administration) Act. This is odd because the order has now long expired but, as I noted in R v Wallace (No 2) [2016] ACTSC 38 at [20], that conceptual difficulty must give way to the clear terms of the legislation.
Having cancelled the Good Behaviour Order, I am required either to impose the sentence that was suspended or resentence Mr Chemhere. I explained in R v Wallace (No 2) at [22]:
In Saga v Reid, I reviewed various authorities and concluded that the failure of a court to act where there has been a clear breach of the conditions of a Good Behaviour Order is highly likely to bring suspended sentences into disrepute as, indeed, has happened in various jurisdictions.
Nevertheless, as I pointed out in Guy v Anderson, there is no presumption in this jurisdiction that the sentence of imprisonment that was suspended should be imposed.
In this case, Mr Chemhere breached the Good Behaviour Order quite soon after it was made and it was, of course, made following a breach of an earlier order made in respect of the same offence. I do not know why it took so long for the matter to proceed through the Magistrates Court, but there were a large number of adjournments of which I was aware. Nevertheless, it has now come to the Court's attention and it needs to be addressed.
While, since the first order was made, Mr Chemhere has completed successfully a residential drug rehabilitation program, he has relapsed back into quite problematic drug abuse and has failed to engage with the supports that were available to him, such as through EveryMan. The offences which breached the order were serious offences. Assault occasioning actual bodily harm attracts a maximum penalty of five years imprisonment and threatening to inflict grievous bodily harm also attracts a maximum penalty of five years imprisonment.
They are not the most serious offences in the criminal calendar, but are still serious. They were committed in a sustained attack on employees who were carrying out their lawful duties. While they were quite different types of offences from that for which I originally sentenced Mr Chemhere, that does not necessarily result in the response to the breach being less severe than were the offences to have been a repeat of the early offending. That is also indicated by the underlying cause of the offending, which seems, in both cases, but not necessarily expressly acknowledged, to have been the drug and alcohol abuse that his addiction has caused.
It seems to me that Mr Chemhere requires more intensive supervision than perhaps a Good Behaviour Order now attracts. I suspect that that may occur with parole. Certainly, it seems to me that he requires a longer period of parole than the six months presently available in the context of his present sentence. It would also be difficult to impose a non-custodial sentence that interacted usefully with the parole to which he is now entitled.
It seem to me that, if Mr Chemhere is currently serving a sentence, s 70 of the Crimes (Sentencing) Act renders Pt 5.3 of that Act applicable, and so, in imposing the sentence that I must do, I can make it partially or wholly concurrent or cumulative. I propose to make it partially concurrent and therefore partially cumulative.
In my view, a period of 12 months supervision on parole is appropriate for Mr Chemhere in these circumstances. That will allow him, if he wishes, to complete a further residential drug rehabilitation program, although, as I suspect, he will have difficulty in gaining admission in the near future, given the situation, as I am aware of it, with availability of places. Nevertheless, he could, under parole, commence such a program if admitted.
I am also required under s 66 of the Crimes (Sentencing) Act to reset the non-parole period, which is automatically cancelled by the imposition of the sentence. Given his current application for parole, I do not propose to make a different end of the non-parole period.
Mr Chemhere, please stand.
1. I confirm the conviction for aggravated burglary committed on 27 July 2011.
2. I note that on 25 March 2013 you were sentenced to nine months imprisonment for that offence and that this period was suspended on that date and a Good Behaviour Order then made.
3. I find that you breached that Good Behaviour Order by committing further offences punishable by imprisonment during the period of the Good Behaviour Order.
4. I cancel the order.
5. I impose the sentence of imprisonment for nine months, to commence on 1 June 2016 and end on 28 February 2017. That is to be concurrent as to three months on the sentence you are now serving.
6. I note that this sentence cancels the current non-parole period. I set a new non-parole period to commence on 1 July 2015 and to end on 31 March 2016.
[His Honour then spoke directly to Mr Chemhere]
Mr Chemhere, that is the formal order of sentence that I have made, but I now need to explain it to you. Acting Justice Nield sentenced you to nine months imprisonment, but suspended it and made a Good Behaviour Order. You have breached that Good Behaviour Order. I have now decided to impose that nine months, but I have made it partly to overlap with the current sentence you are serving so that it adds a period of six months to that sentence.
However, I have not disturbed the non-parole period, so you are eligible for parole at the end of this month, on 31 March 2016. I understand you have made an application for parole. That can still proceed. If your parole is granted by the Sentence Administration Board, you will be free in the community, but I have increased the period of parole from six months, which the Magistrates Court set, so that it is now 12 months.
I think you need a longer period of close supervision. I have read your letter and I accept that you sincerely want to get out of the criminal justice system, but that is going to be hard if you do not get employment, if you do not keep away from your drug using mates and if you do not get some other people that you can mix with who are not drug users.
The Canberra Men's Centre (EveryMan) tried to provide that to you and that did not work very well because you left them. They could still provide you with assistance and you should probably go back to them, but that is a matter for you to discuss with your parole officer. I do not know whether that is your mother in court, but you should see her more often, get to know her better, use her as a resource and a support and look for friends that are not criminals, that do not use drugs, because that is really important.
Your parole officer may be able to assist you to get employment and it would be really good if you can do that. Your education means it is not likely to be easy to get employment, but I would encourage you to do that. Use your parole officer for help. Parole is there to control you, to help to stop you making further mistakes and committing further offences. Your parole officer can also be a help to you to assist you to deal with the problems that you face, to help you stop using drugs, perhaps to go into a residential rehabilitation, to get employment and so on.
I hope that you take this chance that I have given you to get parole, if the Sentence Administration Board gives you parole, and that a longer period of supervision will allow you to go through this really difficult time, particularly with your mental health, to get back into the community and not commit further offences.
| I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 11 April 2016 |
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