R v Ennis
[2016] ACTSC 72
•4 April 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Ennis |
Citation: | [2016] ACTSC 72 |
Hearing Date: | 4 April 2016 |
DecisionDate: | 4 April 2016 |
Before: | Refshauge J |
Decision: | 1. The conviction of the assault occasioning actual bodily harm on 24 October 2010 is confirmed. 2. The Good Behaviour Order made on 24 October 2010 and extended on 17 April 2012 is cancelled. 3. Mr Ennis is re-sentenced. 4. Mr Ennis required to sign an undertaking to comply with the offender's good behaviour obligations for a period of two years from today, 4 April 2016 with no other conditions. 5. Mr Ennis is required to pay a fine of $500 and allowed four months to pay. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE and PROCEDURE – Judgment and Punishment – Sentencing – breach of Good Behaviour order by re-offending – actual bodily harm – common assault – family violence – Good Behaviour Order expired – Good Behaviour Order cancelled – re-sentencing |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), ss 33, 107, 108 |
Cases Cited: | R v Ennis (Unreported, Supreme Court of the Australian Capital Territory, Acting Justice Nield, 17 April 2012, SCC 7 of 2011) R v Ennis [2014] ACTSC 369 |
Parties: | The Queen (Crown) Joseph Ennis (Defendant) |
Representation: | Counsel Mr D Sahu-Khan (Crown) Mr D Johns (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Defendant) | |
File Number: | SCC 7 of 2011 |
REFSHAUGE J:
The facts
On 24 October 2010, Mr Ennis was involved with an altercation with his partner, as a result of which he was charged with assault occasioning actual bodily harm. He appeared before Nield AJ on 17 April 2012, when his Honour made a Good Behaviour Order for two years with a condition to perform 100 hours of unpaid community service work that was said to be able to "bring home" to the offender the fact that the court and the community regard instances of domestic violence very seriously. See R v Ennis (Unreported, Supreme Court of the Australian Capital Territory, Acting Justice Nield, 17 April 2012, SCC 7 of 2011) (R v Ennis).
Mr Ennis complied with the Good Behaviour Order but did not complete the community service work and, on 4 November 2014, I dealt with him for a breach for the failure to complete community service work. See R v Ennis [2014] ACTSC 369 (R v Ennis [2014]). He had, at that stage, 84 hours left uncompleted of the 100 hours, even though well over two years had lapsed since the order had originally been made.
In order to mark the seriousness of the offence, I added a further eight hours to the community service work order and, on 6 February 2015, ACT Corrective Services certified that he had completed the community service work. I also extended the term of the Good Behaviour Order for 12 months, to end on 4 November 2015. That Good Behaviour Order has now ended.
Unfortunately, before it ended, Mr Ennis was involved in a further altercation with the same partner on 18 August 2015, just over three months before the Good Behaviour Order ended. That altercation occurred when his partner and Mr Ennis, who had been drinking alcohol, and his partner commenced to argue outside their house. Mr Ennis pulled his partner by the hair and dragged her inside. She tried to get away but he continued to drag her. He then let her go and slammed the door in her face. As a result, he was charged with common assault. He pleaded guilty to that charge and, on 3 March 2016, was sentenced by Magistrate Morrison.
His Honour convicted Mr Ennis of the assault and sentenced him to five months imprisonment but suspended it immediately and made a Good Behaviour Order for 18 months with various conditions. Those conditions did not include a community service order.
In sentencing, his Honour took into account, as aggravating factors, that it was the same victim as the victim of the earlier offence in 2010 and that Mr Ennis was, at the time, on conditional liberty, in that he was subject to the Good Behaviour Order. His Honour also noted that this was a family violence case, which aggravates the matter.
His Honour then referred the matter to me under s 107 of the Crimes (Sentence Administration) Act 2005 (ACT) for the breach of the Good Behaviour Order that I had extended.
Consideration
Under s 108 of the Crimes (Sentence Administration) Act, if I am satisfied that an offender has breached any of his obligations under a Good Behaviour Order, made when a sentence of imprisonment was suspended, I may:
(a) take no further action;
(b) give the offender a warning about the need to comply with the offender's good behaviour obligations;
(c) give the Director-General directions about the offender's supervision;
(d) amend the Good Behaviour Order;
(e) if the offender has given security under the order;
(i) order payment of the security to be enforced; and
(ii) order the Good Behaviour Order to be cancelled on payment of the security (if the term of the order has not already ended);
(f) cancel the order.
It seems to me that there are some limited options in the circumstances where the Good Behaviour Order has expired. I have doubts as to whether I can, in those circumstances, amend the order. I can, however, cancel the order and re-sentence Mr Ennis. In R v Curtis (No 2) [2016] ACTSC 34, I indicated that, although it sounds a little odd, the cancellation is merely the factum which allows me to re-sentence him, even though the order has expired.
I indicated in Saga v Reid [2010] ACTSC 59 that Good Behaviour Orders should be treated seriously and that to ignore them and any breaches is likely to bring them into disrepute. I noted in R v Curtis(No 2) at [16] as follows:
Nevertheless, as I pointed out in Guy v Anderson, there is, in this jurisdiction, no presumption in favour of imposing the original sentence that had been suspended. Thus, a court may, in an appropriate case, merely sentence the offender to the same sentence, including suspension of the term of imprisonment, as originally imposed. While that would have the effect of extending the period in which the offender is subject to a Good Behaviour Order, that may be modified to take account of the period of satisfactory compliance with the earlier order.
The point, in this case, is not so much that the matter here is a suspended sentence but that there are opportunities for the court to, in resentencing, recognise the seriousness of the offence without simply moving to some other sentence.
I also added in R v Curtis(No 2), at [17]-[18] some considerations involving the dealing with a breach of a Good Behaviour Order. I said:
17. Over time, a number of considerations have been identified as relevant to the decision as to the appropriate response to the breach of a Good Behaviour Order.
18. These include the proportion of the term of the Good Behaviour Order that had been served without breach, any rehabilitation attained by the offender prior to the breach, the nature of the offence which breached the order, including whether it is similar to the offence for which the sentence of imprisonment, then suspended, was imposed, the relative seriousness of the offence so that the imposition of the suspended sentence would be disproportionate to the gravity of the breach offending; and, the prospects of the offender's rehabilitation.
It seems to me, in this case, that some of those matters are quite relevant, even though, again, this is not a matter where there has been a suspended sentence but where there is the breach of a Good Behaviour Order.
For example, the Good Behaviour Order has been complied with for a significant period of time; indeed, Mr Ennis has complied with nearly two years of the Good Behaviour Order without a breach constituted by a further offence and nearly nine months of the period of the additional period of the extended good behaviour that I made.
It seems, however, that rehabilitation has not been attained by Mr Ennis, in the sense that the breaching offence was also facilitated by the consumption of alcohol which was part of the matrix of the commission of the earlier offence.
The nature of the offending is serious. It is, as his Honour Magistrate Morrison said, a family violence offence, and it is serious in that it was the commission of the offence against the same victim, although many years apart. It is a similar offence also, in that it is an assault and another family violence assault. Nevertheless, it is a much less serious version of the offence, although in this case, because of the earlier history, it attracted a sentence of imprisonment, although suspended.
I note that the victim has now moved to Tasmania and, since Mr Ennis has been on bail, he has not been able to contact her, although they have a son together who is now 23 years old. It seems to me it is unlikely that that relationship will resume in the near future and that is a matter to be taken into account.
I also note that Mr Ennis is employed, although casually. He assists his son in the establishment of his son's business so he has some means to meet a fine should I propose to impose that.
Accordingly, I propose to cancel the Good Behaviour Order and re-sentence Mr Ennis. It seems to me that, having regard to the time that he has spent already on a Good Behaviour Order, although now breached, I can reduce the period of the Good Behaviour Order, but I can mark the failure of his taking of the opportunity given by the Good Behaviour Order by the imposition of a fine with time to pay.
I have regard to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). It seems to me that there is an element of specific deterrence that is needed in this case.
I have regard to the matters set out in s 33 of the Crimes (Sentencing) Act insofar as they are known to me. They are set out in my earlier remarks of R v Ennis [2014], in the remarks of Nield AJ in R v Ennis and in the sentencing of Magistrate Morrison which was an exhibit in these proceedings.
Mr Ennis, please stand.
1. I confirm the conviction of the assault occasioning actual bodily harm on 24 October 2010.
2. I cancel the Good Behaviour Order then made and extended on 17 April 2012.
3. I re-sentence you.
4. I require you to sign an undertaking to comply with the offender's good behaviour obligations for a period of two years from today. That extends the period slightly for the other Good Behaviour Order and I make no other conditions.
5. I impose a fine of $500 and allow four months to pay.
| I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 20 April 2016 |
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