R v CR (No 2)
[2022] ACTSC 96
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v CR (No 2) |
Citation: | [2022] ACTSC 96 |
Hearing Date: | 21 April 2022 |
DecisionDate: | 2 May 2022 |
Before: | McCallum CJ |
Decision: | Take no action. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Breach of good behaviour orders – Purposes of sentencing – where offender previously dealt with for breach of the same good behaviour obligations – where offences giving rise to second breach proceedings were committed during the same period of offending as the first – evidence of good rehabilitation since – whether offender should be resentenced to a term of imprisonment |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) |
Cases Cited: | R v CR [2021] ACTSC 93 R v QH; R v CR [2020] ACTSC 178 |
Parties: | The Queen ( Crown) CR ( Offender) |
Representation: | Counsel M Dyason ( Crown) J De Bruin ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) LegalAid ACT ( Offender) | |
File Number(s): | SCC 94 of 2020; SCC 95 of 2020 |
McCALLUM CJ:
CR is before the Court for breaches of three good behaviour orders imposed by Murrell CJ on 7 July 2020. He was sentenced for a total of nine offences on that date arising out of an attempt by a number of detainees to escape from Bimberi, the Territory’s youth detention centre. CR is now 18 but was a young person at the time those offences were committed. The three good behaviour orders were imposed in respect of three offences of common assault committed against custodial staff at Bimberi.
Murrell CJ gave comprehensive reasons for sentence: R v QH; R v CR [2020] ACTSC 178. In her assessment of the seriousness of the offences, her Honour described the three common assaults in respect of which the good behaviour orders were imposed as follows at [69]:
The assaults did not cause physical injury to the complainants. They did not involve an assault on a vulnerable part of the body such as the head. Nevertheless, the assaults would have been traumatic for the victims and any assault by a detainee on a member of the custodial staff is a serious matter.
CR was dealt with for breaches of his good behaviour obligations in a later judgment of Murrell CJ published on 14 May 2021: R v CR [2021] ACTSC 93. The breaches for which he was dealt with at that time were offences committed on 17 November 2020, for which he had been sentenced by Magistrate Cook on 22 April 2021. In relation to the three good behaviour orders for the three counts of common assault, her Honour noted the breaches but took no further action: at [24].
The matters that bring CR before the Court again today are separate breaches of his good behaviour obligations that occurred shortly before the offences dealt with by Magistrate Cook: one on 16 November 2020 and one in October 2020. It seems at least possible that, had all three matters been able to be dealt with in the Magistrates Court before the young person came before Murrell CJ for the first breach proceedings in May 2021, her Honour may have still taken the same course, notwithstanding that there were further offences.
Her Honour said in relation to the young person when dealing with him for the first breach proceedings that, based on the content of a Child and Youth Protection Services report, although he had a period of offending after his release from Bimberi in August 2020, there appeared to be some explanation for that, which was that he was released without supervision between August and November 2020. As already explained, the offences constituting the breaches now before me were committed during that period.
Murrell CJ noted that, after 17 November 2020, there was an improvement in CR’s behaviour. Her Honour said at [16]:
Following his remand in custody at Bimberi from November 2020 to April/May 2021, he was highly engaged and attended all appointments. He participated in a Changing Habits and Reaching Targets program, incurred no breaches and progressed almost to a Level 3 in Behaviour at Bimberi. He was working towards completion of Year 11 and aspired to complete Year 12 and secure an apprenticeship.
Her Honour also referred to the fact that CR had engaged in sports, including basketball and chess. There is more than one reference to his enjoying chess and engaging with that game. He is also said to have engaged with mental health services. Her Honour noted that a custodial period of 18 days from 16 April 2021 (the expiration of the sentences imposed by Magistrate Cook) to 4 May 2021 (the date on which he was granted bail) served the purpose of punishment referrable to “the disturbance offences” (the attempted escape from Bimberi).
Her Honour also noticed that the sentences imposed for the breach offences were substantial; they included a sentence of imprisonment for five months for an offence of failure to stop a motor vehicle for police.
The three offences constituting the breaches for which the offender is now brought before the Court are offences of detaining property by deception, burglary and damaging property. For those offences, the offender received sentences of 29 days, two months and two days imprisonment, respectively. Those sentences may also be described as substantial.
Section 108(2) of the Crimes (Sentence Administration) Act 2005 (ACT) provides that the court may take any of the following actions for breach of a good behaviour obligation:
108 Courts powers – breach of good behaviour obligations
…
(2) The court may do 1 or more of the following:
(a) take no action;
(b)give the offender a warning about the need to comply with the offender’s obligations;
(c)give the director general directions about the offender’s supervision;
(d)amend the good behaviour order;
(e)make orders with respect to any security given under the order —
…
(f)cancel the order and effectively resentence.
A complication is that the three good behaviour orders in question have now expired. That occurred on 6 July 2021, the offender having originally been sentenced by Murrell CJ on 7 July 2020 and the good behaviour orders having a duration of 12 months. It follows that it is no longer open to amend the good behaviour orders.
It would be open to the court to resentence the offender and that is the course for which the Crown contends. Further, the Crown contends that it is appropriate for the court in doing so to impose a term of imprisonment, since the option of a community-based order is unavailable as the offender is presently in custody on other matters. Those matters are due to be heard in the Magistrates Court today and of course, it is not known what the result of that will be.
I have instead concluded that I should take no action on the breaches today, for the following reasons. First, as I have indicated, it seems possible that, had all three series of offending been dealt with at the same time before Murrell CJ, her Honour would still have taken the course she did, that is, to note the breaches and take no further action.
Secondly, if the offender is found guilty of the matters for which he is presently in custody, the Magistrates Court will have a full opportunity, with the benefit of a presentence report, to deal with the offender based on his current circumstances and with the benefit of knowing how his somewhat fractured rehabilitation is progressing at the moment.
Thirdly, while I accept that denunciation is an object of sentencing and an important one, particularly where assaults have been committed against custodial staff who are a vulnerable class of people, rehabilitation is always the single most important object of sentencing a young person. It seems to me that there is merit in allowing the young person to approach the Magistrates Court today with effectively a clean slate so that the entire picture of his sentencing proceedings can begin today, noting that he has had periods of positive rehabilitation and periods of going off the rails, as it were.
For all of those reasons, notwithstanding the plain seriousness of a second breach, I am satisfied it is in the best interests of this young person and the appropriate response to the breach to take no further action.
| I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: 7 July 2022 |