R v Elliott
[2022] ACTSC 211
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Elliott |
Citation: | [2022] ACTSC 211 |
Hearing Date: | 5 August 2022 |
DecisionDate: | 18 August 2022 |
Before: | Refshauge AJ |
Decision: | 1. The Director-General of Justice and Community Safety, through ACT Corrective Services, prepare and provide to the Court by 29 September 2022 an updated Intensive Correction Assessment Report and an updated Drug and Alcohol Treatment Assessment Report for Christopher David Elliot and consider whether, in an Intensive Correction Order, a program for perpetrators of family violence should be included as a condition. 2. The Director-General of Health, through the Alcohol and Drug Services, provide an updated Drug and Alcohol Sentencing List Suitability Assessment Report for Christopher David Elliot and provide it to the Court by 29 September 2022. 3. That the Registrar be requested to provide these updated Reports to the parties. 4. The proceedings be adjourned to 4 October 2022 at 10:00am for sentence. 5. Bail to continue until then. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application for bail – reports for sentencing alternatives |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 11, 12A, 78, 80G Crimes (Sentencing) Regulation 2006 (ACT) s 2 Family Violence Act 2016 (ACT) pt 3, s 14 |
Cases Cited: | Beniamini v Craig [2017] ACTSC 30 CM v TM and Anor [2011] ACTSC 53 |
Parties: | The Crown ( Crown) Christopher David Elliot ( Offender) |
Representation: | Counsel S Whitfield ( Crown) J Robertson ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) JDR Law ( Offender) | |
File Number: | SCC 215 of 2021 |
REFSHAUGE AJ:
Introduction
Christopher David Elliott has pleaded guilty to breaching a Family Violence Order. He has sought either an Intensive Correction Order under s 11 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) or a Drug and Alcohol Treatment Order under s 12A of the Sentencing Act.
Family violence is a serious issue, though it is only depressingly recently that it has been so recognised. There are many forms of family violence and it is, by no means, limited to physical violence. The Court described it and some challenges in Beniamini v Craig [2017] ACTSC 30 at [1]-[2].
One of the ways that a domestic partner can be protected from such violence is by the making by the courts of a Family Violence Order. The history, development, purpose and effectiveness of such orders is set out in CM v TM and Anor [2011] ACTSC 53; [22]-[28].
Family Violence Orders are a form of Personal Protection Orders and are now made under Part 3 of the Family Violence Act 2016 (ACT). They are made where there has been some previous violent conduct or currently alleged conduct and other matters set out in s 14 of that Act. They are designed to prevent a recurrence of family violence and ensure the safety of people, particularly children, who fear, experience or witness family violence and to encourage perpetrators to be accountable for their conduct.
Thus, compliance with them is a critical response to family violence and an important means of reducing its prevalence and protecting direct and indirect victims. Enforcement of them is accordingly an important matter and must be taken seriously.
This is why the maximum penalty under s 43 of the Family Violence Act for breaching a Family Violence Order is 5 years imprisonment, a fine of $80,000 or both.
That they are taken seriously is shown by the sentencing statistics. Most matters are dealt with in the Magistrates Court, where over one third of sentences are of imprisonment, some suspended partly or wholly. Terms of imprisonment range from a month to 18 months, with nearly half of 3 to 6 months in length, but a number of 9 to 12 months and 5% of 15 months or more.
Very few are recorded as being dealt with in the Supreme Court, when all but one offender was sentenced to a term of imprisonment, though some were partially suspended. There are a number for which an Intensive Correction Order was imposed by the Magistrates Court, where, of course, the courts must have considered that a term of imprisonment of up to four years is appropriate: s 78(1)(a) of the Sentencing Act. Clearly, the legislature and, of course, the courts are now taking family violence, its prevention and elimination, where possible, very seriously.
While Mr Elliott has relatively short criminal record of 21 offences and 2 breaches of a Good Behaviour Order [redacted for legal reasons]. He has, however, a significant number of violence offences and similar offences, which appear to be related to family violence. There are four offences of common assault; two offences of using a carriage service to menace, harass or offend; and an offence of stalking.
He has, however, been able to successfully complete an Intensive Correction Order recently. It appears that the Magistrates Court did make such an Order, though the Intensive Correction Order Assessment Report for it, as is required to be prepared, had recommended that Mr Elliot would not be a suitable subject for such an Order. The Court is not bound to accept this recommendation, so long as it took it into account: s 78(5) of the Sentencing Act.
The offences for which the Order was made were offences of contravening a Family Violence Order, being an unlicensed driver, driving whilst disqualified and drug driving, that is, being a driver and having a prescribed drug in his oral fluid. Not provided, however, were any details of those offences. These were additional to the offences listed in his criminal record in the Crown Tender Bundle.
While it is not necessary to detail Mr Elliott's subjective circumstances, it is noted that he experienced family violence between his parents and, after they separated, again experienced this between his mother and step-father.
He has had two significant relationships, the first with the mother of two children born to the union. He has not been able to see them for a long time as their mother has denied access. Clearly, his criminality of a family violence kind will hamper him regaining access, for which he may need to seek court assistance.
Mr Elliott had difficulties at school, both from bullying and his Attention Deficit Hyperactivity Disorder, which had not been diagnosed at that time. He has been able to obtain and maintain employment, but he has had periods in custody.
He was introduced to drugs at an early age, first using amphetamine at age 14, but progressing to daily use by the time he was 16 or 17 years old. He did, however, cease when he met the mother of his children but, when the relationship terminated, he began smoking methylamphetamine and using it intravenously. He has had little treatment for his drug use. He does appear to have a drug dependency, though the severity of it is not clear on the material available to the Court.
Mr Elliott suffered an assault during a period in custody and this has led to him feeling concerned about being further incarcerated.
It does appear, although not entirely clear, that a conviction for the current offence before the Court will breach a Good Behaviour Order made for an offence of common assault on 28 May 2019. He was sentenced to six months imprisonment, suspended after two months imprisonment with a Good Behaviour Order for 18 months. He breached that Order and, on 14 October 2021, the Order was cancelled and he was sentenced to four months imprisonment, which was then suspended again for 12 months with a further Good Behaviour Order. Thus, this offence - committed between 10 and 11 June 2021 - breached that Order. He will, on sentence, need to be dealt with for the breach. The precise situation for this will need to be clarified, for the Crown has referred to other offences which may or may not, as shown on the criminal record, be part of the Good Behaviour Order.
These matters do raise difficult issues on sentence and it will be necessary to consider carefully appropriate alternatives of sentencing before deciding on the actual sentence to be imposed.
The current Pre-Sentence Report dated 2 July 2021 provided in the required Crown Sentencing Tender Bundle, tendered without objection at the sentencing hearing and admitted into evidence, was out of date and there was no updated report. In itself, it was described as an updated Report, but the Report to which it was an update was also not included.
There was not a more recent Intensive Correction Order Assessment Report included, though there was one that was dated 1 September 2021. It stated that the “assessment is valid for three months from the hearing date noted above”. The hearing date was 6 September 2021. This is, accordingly, no longer valid.
While the offences for which this Assessment was made include a further offence of contravening a Family Violence Order, it appears to have been committed prior to the offence for which he must now be sentenced. This is not absolutely clear from the material that, though inadequate, is available to the Court.
Additionally, the offence of contravening a Family Violence Order for which he must now be sentenced was not committed after he had been sentenced for the earlier offence and while he was subject to the Intensive Correction Order.
An advantage of an Intensive Correction Order is that a rehabilitation program can be attached to it. A program prescribed in the regulation, as required (see s 80G of the Sentencing Act), is a program “for people who have committed a family violence offence”: s 2(1)(d) of the Crimes (Sentencing) Regulation 2006 (ACT). Such programs are, to the knowledge of the Court, provided by the Domestic Violence Crisis Service and EveryMan, a community organisation that supports men, including those who are perpetrators of domestic violence.
Mr Elliott has been assessed for a Drug and Alcohol Treatment Order under s 12A of the Sentencing Act. Two reports of his suitability have been prepared by ACT Corrective Services and the Alcohol and Drug Services and were included in the Crown Tender Bundle. Both found him to be suitable for such an Order. Such an Order can also have a condition made that he engage in such a rehabilitation program. These reports, respectively dated 29 October 2021 and 6 November 2021, although also of some time ago, are not as out of date as the other reports which have been referred to above (at [19]-[20]).
It appears appropriate that both of these be updated also so that proper consideration can be given to them and to ensure that the recommendations are current.
Accordingly, updated reports will be ordered so that the Court can be sure that the assessments remain current and that the Court can, without commitment to either disposition which may be opposed by the Crown, can properly be made.
Mr Elliott's history shows some trajectory that, prima facie, may seem to require a severe sentence. That must certainly be considered. Nevertheless, his recent compliance with a program of intensive support suggests a glimmer of hope that he may be in a position for the Court to take another direction that can express the seriousness of his offending while accepting an alternative that will ultimately protect the community better.
Accordingly, the Court orders:
(1) The Director-General of Justice and Community Safety, through ACT Corrective Services, prepare and provide to the Court by 29 September 2022 an updated Intensive Correction Order Assessment Report and an updated Drug and Alcohol Treatment Assessment Report for Christopher David Elliott and consider whether, in an Intensive Correction Order, a program for perpetrators of family violence should be included as a condition.
(2) The Director-General of Health, through Alcohol and Drug Services, provide an updated Drug and Alcohol Sentencing List Suitability Assessment report for Christopher David Elliott and provide it to the Court by 29 September 2022.
(3) The Registrar be requested to provide these updated reports to the parties.
(4) The proceedings be adjourned to 4 October 2022 at 10:00am.
(5) Bail granted to Christopher David Elliott be extended to 4 October 2022.
[His Honour then spoke directly to the offender]
Mr Elliott, I know most people that come into the Court want some certainty and, at the moment, my inclination is to keep you in the community, but that depends. I have to hear further from the Crown, but I have also got to have reports.
I am hoping that your compliance with an Intensive Correction Order recently will bring a more positive report than the current ones provided. I can override the report, but your record is not a promising one in this area and that needs to be made clear and one way that the Courts make that clear is by a sentence of imprisonment.
I am of the view that if it is possible to do it positively, then some kind of rehabilitation can be a better protection for the community.
I am adjourning your matter for just over six weeks, because that is the time that the authors of these reports need in order to prepare these.
It will require you to comply with any request from them to assist them. They will want to talk to you again. If you delay that or if you do not make contact when the authors request it, then there will be further delay and this will be taken into account in terms of your commitment to this.
I understand you have employment. That is a really good thing. During this time, there can be no drugs; no interaction with your previous partners; no family violence; no driving offences; no offending in general. As I read it, you do not have a licence at the moment, so no driving at all. If you do all that, it will go to your benefit to show that you are taking this seriously and capable of complying.
This is an opportunity for you to mend your ways and to have the support that you will need, because it is a long, difficult, tough road and you have breached orders previously. You have completed the Intensive Correction Order this time. That is really, really positive. Let us see if we can keep that trajectory.
This is just an adjournment for the reports, but it is also an opportunity for you to show me that this is the right way to go.
| I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Refshauge Associate: Date: 25 August 2022 |
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