R v Dimitrov (No 2)

[2020] ACTSC 54

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Dimitrov (No 2)

Citation:

[2020] ACTSC 54

Hearing Dates:

11 February and 5 March 2020

DecisionDate:

5 March 2020

Before:

Mossop J

Decision:

See [22]-[23]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – breach of intensive correction order – referral by the Sentence Administration Board under s 64(2)(d) – offender committed further offences – intensive correction order has now expired – whether the court has to amend or discharge the intensive correction order when on referral under s 64(2)(d) – it does not – obligation to cancel the intensive correction order under s 65 due to conviction of further offences – cancellation is not in the interests of justice – no further action taken on the referral or the breach

Legislation Cited:

Crimes (Sentence Administration) Act 2005 (ACT), ss 64(2)(d), 65, 74, 75, 79

Crimes (Sentencing and Restorative Justice) Amendment Bill 2015

Cases Cited:

R v Dimitrov [2018] ACTSC 367

Parties:

The Queen (Crown)

Alexander Dimitrov (Offender)

Representation:

Counsel

C Wanigaratne (Crown)

T Taylor (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

McKenna Taylor (Offender)

File Number:

SCC 181 of 2018

MOSSOP J:

Introduction

1. This is a case in which the highly prescriptive and detailed regime relating to intensive correction orders (ICO) fails to accommodate the circumstances which have arisen.  Mr Dimitrov was sentenced by me on 14 November 2018 to serve 16 months’ imprisonment by way of an ICO: see R v Dimitrov [2018] ACTSC 367 (Dimitrov).  That sentence commenced on 5 November 2018 and ended on 4 March 2020.

1. His subjective circumstances are complex, including that he suffers from a traumatic brain injury: Dimitrov at [8]-[17].

1. He persistently breached his obligations under his ICO. That led the Sentence Administration Board (the Board) on 2 April 2019 to refer the offender back to this court under s 64(2)(d) of the Crimes (Sentence Administration) Act 2005 (ACT).

1. Mr Dimitrov committed a further offence, being an offence of driving while disqualified on 24 May 2019.  He spent time in custody from 24 May 2019 until 12 July 2019.  He also committed a family violence related offence on 19 November 2019 and was remanded in custody after that date.

1. Although the referral from the Board came back to this court the proceedings to deal with his breaches of the ICO were adjourned while he attended a residential rehabilitation facility in Queensland after his release from custody in July and prior to his remand in custody in November.  He was subsequently remanded in custody as a result of the family violence offence and has been in custody since 19 November 2019.  The sentencing proceedings in the Magistrates Court relating to the family violence offence have been adjourned until June 2020.

1. Yesterday he was convicted of the driving while disqualified offence.

1. The question is now what to do with:

(a)    the referral by the Board; and

(b)    the breach of the ICO that results from being convicted or found guilty of the drive while disqualified offence.

Consideration

1. Mr Dimitrov has today successfully applied for bail in the Magistrates Court proceedings so he can participate in a 12 month residential rehabilitation program at a private facility in Queensland.

1. Section 64(2)(d) allows the Board, if it finds an offender to have breached an ICO, to refer the offender to a court for amendment or discharge of that order if the Board decides that the offender is unlikely to be able to serve the remainder of the order by intensive correction having regard to the offender’s health or any exceptional circumstances affecting the offender.

1. Section 65 provides that if the offender is “convicted or found guilty of” an offence against a Territory law punishable by imprisonment then the sentencing court must “as soon as practicable” cancel the ICO unless the cancellation is not in the interests of justice and order that “the remainder of the offender’s sentence” be served by full-time detention.

Referral to the court under s 64(2)(d)

1. Section 74 gives power to the court to amend or discharge an ICO, including when there is a referral by the Board under s 64(2)(d). It requires that the Board’s report be considered. Section 75 places limits on the amendment or discharge of an order. In particular, where the referral is under s 64(2)(d) it permits the discharge of an ICO if “the offender is unlikely to be able to serve the remainder of the order by intensive correction” having regard to various matters. If that is the case the order is replaced by a suspended sentence order with a good behaviour order.

1. Section 79 provides that a court may act in relation to anything arising during the term of an ICO even if the term of the order has ended.

1. The difficulty in the present case is that although the court is empowered to act by s 79, the provisions under which it can act are drafted on the basis that they are exercised during the pendency of the ICO rather than at a point where it has already expired.

1. On a strict reading, the terms of s 75(2) cannot be satisfied because there is no “remainder of the order” when the order has expired by the effluxion of time.

1. Mr Taylor submitted that extrinsic materials indicated that on a referral under s 64(2)(d) the court was obliged to either discharge or amend the ICO. He did not provide me with the relevant passages from the Hansard debates. My examination of the explanatory memorandum and the debates for the Crimes (Sentencing and Restorative Justice) Amendment Bill 2015 did not appear to support that submission.  Mr Wanigaratne made no submissions on this point.

1. In relation to the referral by the Board I will simply note the expiry of the ICO by effluxion of time and no further action is taken on the referral.

Breach of the ICO arising by conviction

1. The obligation to act under s 65 operates where the offender is “convicted or found guilty” of the relevant offence. The mandatory obligation in s 65(2) applies whether or not there has been a referral or an application. It appears to me that I am obliged in the present circumstances to act under s 65(2). If s 65(2) meant that the order had to be cancelled, then it would be necessary to “order that the remainder of the offender’s sentence be served by full-time detention”. That would raise the issue of whether the remainder of that sentence was taken from the date of the further offending or from the date of the court’s order. If from the date of the court’s order, then the provisions of subsection (3) would require the court to state when the period of full-time detention started and ended. That would be impossible when the order has expired.

1. Section 65(2) allows cancellation to be avoided if cancellation is not in the interests of justice. If the court reaches that conclusion then it must give reasons: see s 65(5).

1. I am satisfied that the cancellation of the ICO is not in the interests of justice.  My reasons are as follows.

1. I have had regard to the objective gravity of the underlying offending and the purposes of sentencing. I conclude that the cancellation of the order would achieve nothing now that it has expired.  Further, even if the period of incarceration had to be calculated from the date of the offending rather than the date on which the court dealt with the matter, a proposition which I doubt, there would be little utility in the unusual circumstances of this case.  The only effect of doing so would be to impose a suspended sentence for a past period which, at some future time, may be considered to have been breached when he is found guilty or convicted of the family violence offence.

1. Having regard to the personal circumstances of the offender, the expiry of the ICO, the complex history of incarceration and the likelihood that he will spend a substantial period in residential rehabilitation as a result of the bail granted by the Magistrates Court, there is in my view no utility in cancelling the order either because, as appears most likely, there is no power to reimpose a period of detention even if suspended or because any power would have no consequences other than “soaking up” a period of custody prior to today.

Orders

1. For those reasons, the orders of the Court are:

1. In relation to the referral to the court by the Sentence Administration Board under s 64(2)(d) the court notes the expiry of the intensive correction order by effluxion of time and makes no order amending or discharging the intensive correction order.

2.     In relation to the breach of the intensive correction order arising by reason of conviction on charge CC2019/5934 the court makes no order.

1. I note that these orders address all current matters relating to the intensive correction order made on 14 November 2018 and hence the remand order made on 11 February 2020 no longer has effect.

I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 13 March 2020