R v Eyles
[2018] ACTSC 318
•7 November 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Eyles |
Citation: | [2018] ACTSC 318 |
Hearing Date: | 7 November 2018 |
DecisionDate: | 7 November 2018 |
Before: | Murrell CJ |
Decision: | Good behaviour orders cancelled. Offender resentenced and sentenced for breach offences to an effective sentence of eight months’ imprisonment, suspended after 4 months. |
Catchwords: . | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of good behaviour order – failure to report change of details – purposes of punishment – adequate punishment – general and specific deterrence – rehabilitation |
Legislation Cited: | Crimes (Child Sex Offenders) Act 2005 (ACT) s 54(1) Crimes (Sentence Administration) Act 2005 (ACT) s 110 |
Cases Cited: | Byrne v Mingay [2014] ACTSC 126 Weston v Arley [2012] ACTSC 138 |
Parties: | The Queen (Crown) Troy William Eyles (Offender) |
Representation: | Counsel Ms P Burgoyne-Scutts (Crown) Mr R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 220 of 2014; SCC 191 of 2016; SCC 219 of 2018 |
Murrell CJ
Introduction
On the second mention in the Magistrates Court, the offender pleaded guilty to two offences of failing to report a change of details (a change of address and a change of telephone number) to the Child Sex Offenders Registry (CSOR) within seven days of the change occurring (the new offences).
The new offences contravene s 54(1) of the Crimes (Child Sex Offenders) Act 2005 (ACT). Each carries a maximum penalty of five years' imprisonment and/or a fine.
The convictions for the new offences place the offender in breach of a nine-month good behaviour order imposed by Refshauge J in December 2017 and a six-month good behaviour order associated with a suspended six-month sentence of imprisonment imposed by Mossop J on 15 December 2017.
Good behaviour orders
Originally, the offender pleaded guilty to one count of having sexual intercourse with a young person on 5 May 2014. The offender had sexual intercourse with a 15-year-old homeless girl who was staying at the unit of a mutual acquaintance in the Northbourne Flats, Braddon. It was accepted that the offender believed that the girl was consenting to the intercourse, albeit that factor was not of central importance to the assessment of objective seriousness.
On 26 August 2015, Refshauge J imposed a sentence of 12 months' imprisonment which his Honour suspended on the offender entering a two-year good behaviour order requiring him to undertake drug rehabilitation at Odyssey House. In addition, he was required to perform 100 hours of community service work, which he did complete.
In relation to undertaking rehabilitation at Odyssey House, the offender breached the good behaviour order. On 3 January 2017, Refshauge ACJ re-sentenced him to 12 months' imprisonment, suspended for 18 months from 4 January 2017, on the condition that he undertake other drug rehabilitation and accept supervision.
The offender breached that good behaviour order by failing to comply with supervision requirements. The precise nature of the non-compliance is not clear. On 15 December 2017, Mossop J re-sentenced him to six months' imprisonment, suspended on a six-month good behaviour order.
On 4 December 2017, Refshauge J imposed a nine-month good behaviour order for an offence—the first such offence—of failing to report a change of details to the CSOR on 11 July 2016. On 4 December 2015, the offender had informed the CSOR that he had no mobile telephone. He was apprehended by police in relation to another matter on 3 or 4 July 2016 and produced a mobile telephone. Within the ensuing seven days, he did not comply with the requirement of advising the details of that mobile telephone service to the CSOR, which meant that the offence of failing to report details was committed on 11 July 2016.
The new offences
On 11 September 2017, the offender participated in an annual report with the CSOR and signed a Notice of Reporting Obligations, which included the requirements that he report in person to Belconnen Police Station any change of address within seven days of the change occurring and that he report any change of telephone number. The change of telephone number could be reported either by telephone or email; unlike the change of address, it did not have to be reported in person.
10. Thereafter, the offender advised police that he lived in Ainslie. Subsequently, he advised them of several temporary addresses in refuges and other crisis accommodations. On 18 January 2018, the offender was allocated ACT housing accommodation at 13/65 Lowanna Street, Braddon. On 22 January 2018, he telephoned the Child Sex Offenders Registry team, stating that he now lived at 13/64 Lowanna Street, Braddon, as opposed to 65 Lowanna Street. The message also stated that he had a new mobile telephone number which he could not remember.
11. On 29 January 2018, the offender telephoned the police again, sounding very drug-affected. He said that he had lost the keys to his new accommodation and was staying with his brother. He said that he had accidentally left his mobile telephone with his mother. He did not provide his full name, address, or contact number during that telephone call.
12. On 22 February, the CSOR became aware that the offender's new address was 65 Lowanna Street. On 16 March 2018, a male called identified as "Troy"—who must have been the offender—telephoned the CSOR stating that he would call the following day. He failed to do so. The police attempted to contact the offender using a number of telephone numbers with which he had been associated, but their calls were diverted to message banks.
13. The change of address should have been reported to the police in person by 26 January 2018. The offender had access to his new housing from 18 January 2018. In relation to the new telephone service to which the offender referred in his telephone call of 22 January 2018, the correct number was not notified to the police at all, and certainly was not notified within seven days of 22 January 2018 or such earlier time as the service was acquired.
14. On 25 July 2018, the offender was arrested. He has been remanded in custody since that date.
15. In effect, the offences, continued from January 2018 to 25 July 2018, when the offender was arrested.
16. Objectively, the offences are quite serious because of the circumstances in which they occurred. The offender was on conditional liberty, including conditional liberty for a similar matter, and he was also on conditional liberty for the sex matter that had originally seen him placed on the CSOR.
17. Nevertheless, there cannot be any suggestion that the offender was deliberately avoiding the police or attempting to deceive them as to his whereabouts, or had any nefarious purpose. His life was chaotic and had been consistently so for a number of years. He was taking drugs and living an itinerant lifestyle; he lived in a variety of halfway houses and eventually acquired ACT housing accommodation, the keys to which he immediately lost.
18. Further, the address that he gave to police, albeit not in person, was almost the correct address, and there is no suggestion that the offender deliberately lied when he said that he was living at 64 as opposed to 65 Lowanna Street.
19. All offences of failing to report details are serious offences. The background to the legislation was discussed by Refshauge J in Weston v Arley [2012] ACTSC 138 (Weston) at [84]–[85] and again by his Honour in Byrne v Mingay [2014] ACTSC 126. In Weston at [84], His Honour pointed out that the offence created by s 54
is an important part of the mechanism needed to ensure the integrity of the scheme established in the legislation, which is designed to reduce the likelihood of offenders from re-offending by requiring them to keep the police informed of their whereabouts.
At [85], His Honour stated that the offence created by s 54 "is a significant one and not one of lesser regulatory importance."
20. Nevertheless, in both decisions his Honour went on to distinguish between such offences when committed deliberately and for a deceitful purpose, and when committed because the offender has a disorganised, neglectful lifestyle.
21. In the present case, the offences are in the latter category and lesser moral culpability attaches to them.
22. The offender is now 31-years-old. When he was about 12-years-old, his parents separated and he relocated to Sydney to live with his father. At 17 years of age, he left school and returned to the ACT. A brother continues to provide support the offender.
23. The offender has a longstanding problem of substance abuse. He started consuming alcohol at 14 years of age and his alcohol consumption was problematic until he was 26 years of age. He commenced using amphetamines at 19 years of age and began using heroin on a daily basis at 25 years of age.
24. As referred to at [5] above, he was admitted to the Odyssey House Residential Rehabilitation Program in June 2015 but was discharged about six weeks later. In October 2015, he re-entered Odyssey House but was again discharged; on that occasion because of the nature of the offence for which he had been sentenced (the sex offence) and despite the fact that he had been making satisfactory progress. Thereafter, he was admitted to a drug rehabilitation program conducted by the Salvation Army. Unfortunately, he was also deemed unsuitable for that program because of the sex offence that he had committed. In October 2016, he was admitted to the Arcadia House Residential Rehabilitation Program, but approximately two weeks later he was discharged for breaching the rules in relation to taking opioid-based medication.
25. Since being incarcerated in late July 2018, the offender has attempted to address his drug problem in custody. He is on a methadone program and claims that he has not used illicit substances for the past two or three months.
26. The offender has mental health problems. He experiences blackouts, which he attributes to a history of head trauma. He has attempted self-harm and he is engaged with Corrections Psychological Support Services within the Alexander Maconochie Centre (AMC). Case notes indicate that his engagement has been positive.
27. His brother provided information to the Court indicating that he observed the offender's mental health deteriorating in the period when the offending conduct occurred. However, the offender's brother perceives a change of attitude in the offender since the offender’s imprisonment at the AMC. The offender's brother considers that the offender is now motivated to work and he has arranged work for him as a bricklayer’s labourer when he is released. The authors of the pre-sentence report assessed the offender as treatment ready.
28. The offender was assessed as at medium to high risk of general re-offending, primarily because of his abuse of illicit substances and mental health concerns. There does not seem to be any specific risk of re-offending by committing sex offences; having regard to the age of the victim of the 2014 offence and the circumstances in which the offence occurred, it is not apparent that the offender has any paedophiliac tendencies.
29. The dominant sentencing purposes in relation to the new offences are general deterrence and specific deterrence, as well as adequate punishment. It is also necessary for the Court to bear in mind the purpose of rehabilitation as there remains a prospect that the offender will rehabilitate from his substance abuse problem, which is closely related to his offending conduct.
30. The new offences came before this Court because, as a result of those offences consideration must be given to the suspended sentence imposed for the original sex offence. Otherwise, the new offences would have remained in the Magistrates Court. I have been provided with sentencing statistics relating to the Magistrates Court. Statistics, have their limitations but I found that the statistics were helpful in that they tended to support the approach that I was otherwise contemplating.
31. I find that the nine-month good behaviour order imposed by Refshauge J has been breached and, in lieu, I impose a one-month sentence.
32. For each of the new offences, the starting point is sentences of three months’ imprisonment. The offender should receive the benefit of a discount of approximately 25 per cent on these sentences. However, rather than accumulating the one month sentence and the three month sentences to make a total of four months, I will make the three sentences concurrent, resulting in an effective sentence of three months or 25 per cent less than the four months that I would otherwise have had in mind.
33. In relation to each of the new offences, the offender is convicted and sentenced to three months' imprisonment from 25 July 2018 to 24 October 2018.
34. In relation to the nine month good behaviour order made by Refshauge J, I find the breach established and, in lieu, the offender is sentenced to one months' imprisonment from 25 July to 24 August 2018.
35. After the offender was afforded many opportunities, in December 2017 the original sentence for the sex offence became a sentence of six months' imprisonment suspended on a six-month good behaviour order. Pursuant to s 110 of the Crimes (Sentence Administration) Act 2005 (ACT), prima facie the Court would ordinarily cancel the good behaviour order and impose the suspended sentence. However, I will give the offender some benefit for the fact that there have been no further serious offences since 2014, a period of about five years.
36. I cancel the good behaviour order imposed by Mossop J on 15 December 2017. In lieu, the offender is re-sentenced to five months' imprisonment from 25 October 2018 to 24 March 2019. The sentence will be suspended from 25 November 2018 on the offender entering into a good behaviour order for a period of four months, on the conditions that he accept the supervision of Community Corrections and report to Community Corrections within two working days of his release.
| I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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