R v DU (No 5)
[2022] ACTSC 172
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v DU (No 5) |
Citation: | [2022] ACTSC 172 |
Hearing Dates: | 9 September 2021; 6 May 2022; 11 May 2022; 12 July 2022 |
DecisionDate: | 12 July 2022 |
Before: | McCallum CJ (12 July 2022 only) |
Decision: | Decline to cancel the Intensive Correction Order. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Breach of Intensive Correction Order – where breach is a result of further offending – whether it is in the interests of justice to cancel the Intensive Correction Order – where the offender is on a positive path of rehabilitation |
Legislation Cited: | Crimes Act 1900 (ACT), s 55A Crimes (Sentence Administration) Act 2005 (ACT), s 65 Family Violence Act 2016 (ACT), s 43(2) |
Cases Cited: | R v DU (No 4) [2020] ACTSC 174 R v XH [2017] ACTSC 236 |
Parties: | The Queen ( Crown) DU ( Offender) |
Representation: | Counsel R Christensen SC ( Crown) A Qvist ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Fortify Legal ( Offender) | |
File Number: | SCC 15 of 2018 |
McCallum CJ:
DU has been committed to this Court by the Magistrates Court in accordance with s 65(4)(b) of the Crimes (Sentence Administration) Act 2005 (ACT) to be dealt with under s 65(2) of the Act following his conviction of an offence while he was subject to an Intensive Correction Order (ICO).
The ICO was imposed by Burns J on 20 February 2020 after the offender entered pleas of guilty to four counts of engaging in sexual intercourse with a young person who was under his special care, contrary to s 55A of the Crimes Act 1900 (ACT). The detail of those offences is set out in his Honour’s judgment: R v DU (No 4) [2020] ACTSC 174. His Honour imposed sentences of imprisonment, each of 18 months but with a measure of accumulation resulting in an aggregate sentence of imprisonment for three years commencing on 20 February 2020 and expiring on 19 February 2023. His Honour then ordered that those sentences be served by way of ICO, the term of which was the same.
The breach offence was committed on 25 January 2021, almost a year into the three-year ICO. The offender was dealt with for that offence on 22 July 2021 in the Magistrates Court.
The Statement of Facts in respect of that offence is before this Court. In brief summary, the offence was one of contravening a Family Violence Order, contrary to s 43(2) of the Family Violence Act 2016 (ACT). The Family Violence Order was for the protection of the offender’s now ex-wife. The order prohibited the offender from contacting her with certain common exceptions such as contact through a legal practitioner, at court, at a counselling or mediation session or in accordance with a parenting plan made under the Family Law Act1975 (Cth). Finally, there was an exception for contact with the protected person in writing or by SMS “only for the purposes of facilitating contact handover of the respondent’s children or to discuss their safety and welfare.”
In breach of that prohibition the offender, whilst talking to his daughter on the phone, demanded to speak to his ex-wife. She put the phone on loud-speaker and began recording the conversation. The conversation occurred at a time when, according to the evidence of the offender given today, which I accept, he was very frustrated as to the state of his relationship with his ex-wife, in effect having been locked out of his former life including his contact with the children and his accommodation and possessions.
In those circumstances, which explain but do not excuse what followed, the offender in effect threatened that, if his ex-wife did not remove the Family Violence Order, he would attend her house with a large number of people and two large trucks and “clean the joint out.” He also made remarks suggesting that he would deliberately keep his income low so as to ensure that he did not have to pay child support.
The offender was convicted of that offence and fined the sum of $1,000. The offence carried a maximum penalty of imprisonment for five years and a substantially larger fine. It may be inferred that the Magistrate who dealt with the offender concluded that, whilst plainly serious, the offence was one which fell into the lower range of offences of that kind, noting, however, that the range of offences of that kind is large and can involve very serious offences indeed.
At the same time as she dealt with the offender for that offence, the Magistrate committed him to this Court to be dealt with in relation to the ICO, as required by s 65(4)(b) of the Crimes (Sentence Administration) Act.
The breach proceedings were listed promptly, within about six weeks of the sentence proceedings in the Magistrates Court, and were first listed for hearing in this Court on 9 September 2021. On that date, evidence was tendered and submissions were heard by another judge of the Court.
Regrettably, the proceedings have suffered significant delay since that date, for a variety of reasons. First, the proceedings were adjourned for a period of three months. I will return to the reasons for that adjournment.
After that, there intervened the complication that the offender was charged with further offences of the same kind, that is, alleged breaches of the Family Violence Order. He denies those offences and they are now listed for hearing in the Magistrates Court in October. For a period of time, both parties took the view that it would be preferrable for the breach proceedings to abide the outcome of those proceedings. More recently, however, the Crown (appropriately in my view) urged the Court to determine the present matter regardless of the outcome of those matters. It follows, of course, that those allegations must be put to one side for today’s purposes.
Finally there was, perhaps unsurprisingly given the passage of time and the events which had occurred, a change of solicitor for the plaintiff.
Ultimately, the proceedings were listed to be resumed today. The parties both confirmed, in advance of the listing and again in court this morning, their consent to my determining the matter, notwithstanding the fact that the hearing commenced before a different judge. The landscape having changed significantly since 9 September 2021, it was agreed that I could determine the matter by reference to the record of the proceedings to date and the further evidence to be given today.
I note that the passage of time between when the matter first came before the Court and today is contrary to the clear purpose of s 65(2) of the Crimes (Sentence Administration) Act, which provides that the Court must deal with the consequences of a subsequent conviction during the term of an ICO “as soon as practicable”. There are obvious and good reasons for dealing with such cases expeditiously.
In any event, further evidence was given today which, as I have indicated, very much changes the landscape as it must have appeared before the Court on 9 September 2021.
The remarks made by the judge before whom the matter first came on that occasion, in explaining in her decision to stand the matter over for three months, were that that period would afford the offender an opportunity “to prove that he is worthy of the trust that was previously placed in him by the Court” (a reference to the original ICO).
Secondly, her Honour indicated that she would wish to have proper submissions from the parties as to third party hardship and also further evidence in relation to that question. Her Honour had separately made a remark during the course of argument that it was not clear from the very favourable references provided in support of the offender whether the referees were aware of the nature of his initial offending in respect of which the ICO was imposed.
Whether or not the combination of circumstances that has resulted in those delays warranted the proceedings being stood over for those various reasons, the simple fact is that, as accepted by the Crown, the delay has operated in the offender’s favour. The primary focus of the additional evidence in writing provided to the Court in the intervening period and supported by written submissions requested by the judge before whom the matter came on 9 September 2021 was on the hardship it would impose on third parties to revoke the ICO.
Section 65(2) of the Crimes (Sentence Administration) Act provides that, in the event of a subsequent conviction during the term of an ICO:
(2) The sentencing court must, as soon as practicable—
(a) cancel the intensive correction order, unless cancellation is not in the interests of justice; and
(b)if the court cancels the intensive correction order—order that the remainder of the offender’s sentence be served by full‑time detention.
The extent to which hardship is a factor to be taken into account in determining that binary choice may be a matter of debate. The weight to be given to any individual factor is always a matter for the judge exercising a sentencing discretion in the usual course of a sentencing exercise. Today is not the occasion to rehearse those principles.
However, here the statute says that the Court must cancel the ICO unless the cancellation is not in the interests of justice. I accept without equivocation that the question of hardship might be relevant for that choice. However, as submitted by the Crown, I would accept in the present case that it is more relevant to consider the level of rehabilitation and the ongoing support that is shown to be provided to the offender.
The primary consideration in the present case in my view is the conclusion, which I have reached based on the evidence, that to cancel the ICO today would interfere with a positive case of rehabilitation. That emerges from evidence given today both by the offender and by his partner. The offender described the support that she has provided to him. He explained that, at the time of the breach offence, he was very angry, which he accepted not to be an excuse, but it is clear enough that his emotions at the time were irrational and not fully under his control. He then described his experience with his current partner who, herself, has a significant background of trauma. He explained that, through discussions with her, he has come to understand the impact of offences of the kind he has committed on women such as her.
The offender also gave evidence of counselling that he has undertaken at the direction of Corrective Services throughout his ICO. He said that he had gained insight into to the nature of his offending. As to the sexual assault offences, he accepted that the victim was a young girl who was not in a position to make decisions about her sexual choices and that such offences have a lasting emotional impact on victims. As to the breach offence, he accepted that he was too emotional and he stated that, since the breach offence, he has had no contact with his ex-wife at all.
I turn then to the evidence given by the offender's partner. First, she confirmed that, as at the time of the hearing on 9 September 2021, she was aware of the nature of the offences as a result of which the ICO was imposed. She indicated that her impression of the offender was that initially he was simply angry about the breach offence. However, through the partner explaining her journey as a survivor of child sexual assault, adult rape and domestic violence, he has come to appreciate the impact of such matters on her. She also explained his caring relationship with her son and the manner in which the offender encourages her son to do well at school and provides a good role model for him.
Finally, I note that there is before the Court a recent report from Corrective Services dated 11 July 2022 indicating that the offender has remained compliant with supervision in relation to his ICO. The letter states that he has engaged with the support officer and that further offence-specific treatment is being considered.
In all the circumstances and having regard to the evidence before me, I am satisfied that cancellation of the ICO today is not in the interests of justice as it would interfere with what has been shown to be an impressive path of rehabilitation, very much supported by the offender's current partner. That is the overwhelming factor which has led me to that conclusion.
I did give consideration to whether I should impose any additional condition on the ICO, as did Penfold J in R v XH [2017] ACTSC 236. Leaving aside a nice question as to whether that is a matter that falls within the authority of the court under s 65 of the Crimes (Sentence Administration) Act, it is clear enough that Corrective Services have given consideration to that issue and, upon reflection, I think it is a matter I should leave to the experience and expertise of that service.
For those reasons, the only order that is required is to indicate that I determine the proceedings by declining to cancel the Intensive Correction Order.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum Associate: Date: |
5