R v Du (No 6)

[2023] ACTSC 151

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v DU (No 6)

Citation: 

[2023] ACTSC 151

Hearing Date: 

16 June 2023

Decision Date: 

16 June 2023

Before:

McCallum CJ

Decision: 

Decline to cancel the intensive correction order.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of intensive correction order – whether it is in the interests of justice to cancel the intensive correction order – where the intensive correction order has expired – where the offender demonstrates advanced rehabilitation

Legislation Cited: 

Crimes (Sentence Administration) Act2005 (ACT) s 65(2)

Cases Cited: 

R v DU (No 5) [2022] ACTSC 172

R v Dimitrov (No 2) [2020] ACTSC 54

Parties: 

The Queen ( Crown)

DU ( Offender)

Representation: 

Counsel

D Swan ( Crown)

A Qvist ( Offender)

Solicitors

ACT Director of Public Prosecutions ( Crown)

Fortify Legal ( Offender)

File Number:

SCC 15 of 2018

McCALLUM CJ:       

1․The offender, known in the proceedings as DU, has been committed to this Court to be dealt with for breach of an Intensive Correction Order (ICO) by the commission of offences.  This is the second occasion on which he has come before me for a breach.

2․On the first occasion, I declined to cancel the ICO for the reasons stated in my judgment in R v DU (No 5) [2022] ACTSC 172. This judgment should be read together with that judgment.

3․The matters for which the offender has again been committed to this Court again relate to breaches of a family violence order and, again, involve the offender's ex-wife. 

4․One offence relates to the events of 5 August 2021.  At that time, the offender was subject to a condition of a family violence order that he not engage in behaviour constituting family violence towards the protected persons including making critical or derogatory remarks about his ex-wife to or in the presence of the child protected persons.  The offence to which he has pleaded guilty involved his sending text messages to one of the children in which he referred to his ex-wife in broadly derogatory terms, accusing her of being manipulative and lying.

5․The second offence relates to events which occurred on separate dates in February 2022 when again the offender sent messages to one of the children via Facebook Messenger Kids containing criticisms of his ex-wife.  The ex-wife had access to and monitored the children’s Facebook Messenger Kids accounts and received notifications upon each of these messages being received.  In due course, the matters were reported.  The offender was charged and ultimately dealt with in the Magistrates Court. 

6․As I have indicated, the previous breach proceedings were determined by me on 12 July 2022.

7․The offender was dealt with for the recent matters in the Magistrates Court in October 2022. In addition to sentencing the offender, the magistrate committed him to this Court to be dealt with for the breach of the ICO, as required under s 65(2) of the Crimes (Sentence Administration) Act2005 (ACT). That section provides that, in the event of subsequent offending and 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.

8․The present case is complicated by the fact that, in the intervening period between the offender being dealt with in the Magistrates Court for the recent matters and his being committed to this Court to be dealt with for the breach, the ICO has expired. 

9․In R v Dimitrov (No 2) [2020] ACTSC 54 at [1], Mossop J noted that this is a situation “in which the highly prescriptive and detailed regime relating to intensive correction orders (ICO) fails to accommodate the circumstances which have arisen”.

10․His Honour explained at [17]:

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.

11․His Honour in that case took the view that, the ICO having expired, there was no utility in cancelling it in accordance with s 65(2) either because, as his Honour considered most likely, “there is no power to reimpose a period of detention” or because any power if exercised “would have no consequences other than ‘soaking up’ a period of custody” prior to the day on which the breach was dealt with: at [21]. In those circumstances, his Honour was of the view that cancellation of the ICO was not in the interests of justice.

12․The same can be said in the present case.  In addition to the reasons I have just recited, there is a further reason why, even leaving aside the fact that the ICO has now expired, its cancellation would not be in the interests of justice in the present case.     

13․I touched on these matters on the last occasion when these proceedings came before me.  On that occasion, I noted that the events giving rise to the offender’s offending related to his previous relationship, which is now at an end.  There was evidence before me from the offender’s current partner which impressed me in demonstrating that the offender has advanced well along a path of rehabilitation in terms of his treatment of women and the difficulties he previously displayed in managing his anger.

14․That position remains the same and indeed may be said to have improved to the extent that further time has passed since I made that decision.  The offender’s partner is before the Court again today and again speaks up in his favour, describing him as an important influence in her life.  She states in a letter, which she has signed in my presence, that she and the offender have continued to have discussions about the matters that have brought him before the Court and that he has continued to gain insight.

15․She notes that he completed all of his counselling as directed by Corrective Services and all other requests they made of him.  There is no evidence before me to contradict any of that evidence. 

16․She also states that the offender has continued to support her and her son and that he is an integral part of their family.  There would be little utility in interrupting such a happy tale of rehabilitation.  For that separate reason, in addition to the reasons I have recounted, I am not persuaded that it is in the interests of justice to cancel the ICO today.

17․For those reasons, the only order that is required is to indicate that I determine the proceedings by declining to cancel the ICO. 

I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum

Associate:

Date: 8 August 2023