R v Figura (No 2) - [2019] ACTSC 222

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Figura (No 2)
Citation:	[2019] ACTSC 222
Hearing Date:	9 August 2019
DecisionDate:	9 August 2019
Before:	Mossop J
Decision:	See [17]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – whether sentence should be served by intensive corrections order – offending conduct driven by offender’s use of methamphetamines – offender has spent substantial period in custody attributable to present offences
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), ss 11(3), 11(6)
Cases Cited:	R v Figura (No 1) [2019] ACTSC 149
Parties:	The Queen (Crown) Ashley Figura (Offender)
Representation:	Counsel K Reardon (Crown) K Musgrove (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Offender)
File Numbers:	SCC 69 of 2019 SCC 132 of 2019

MOSSOP J:

I gave my decision in this matter on 6 June 2019 (R v Figura (No 1) [2019] ACTSC 149). At that stage I indicated that I would impose a total aggregate sentence of 48 months. The issue that I deferred was how this sentence should be served.

The options were: full-time detention, a partially suspended sentence or intensive correction. I directed that an intensive correction assessment be prepared. That has now been done. The report is dated 31 July 2019. It assesses Mr Figura as suitable for an intensive correction order. It also includes the following relevant information.

He was released on bail on 19 June 2019 to participate in the Arcadia House 12 week transition program. He was exited from the program and failed to comply with conditions of bail and was returned to custody on 27 June 2019. He was subsequently released and participated in the transition program, as well as being assessed for suitability for an intensive correction order.

His current partner is expecting their first child together. The offender remains a parental figure for his two children from previous relationships.

The offender claimed that he had been offered full-time employment to commence upon completion of the Arcadia House transition program. This was not verified by the authors of the pre‑sentence report. I was told that he had been offered employment with a fencing contractor.

Staff at Arcadia House indicate that he remains a participant in the 12 week transition program and continues to demonstrate a willingness to address his illicit substance use.

There remain a number of weeks prior to the offender being eligible to transfer to the Arcadia House day program.

The authors of the ICO report were unable to make an assessment of his proposed accommodation. However this did not prevent him from being assessed as suitable for an intensive correction order. The absence of a full assessment of his accommodation rules out a curfew condition on any intensive correction order because it is not possible to be satisfied that each adult who is living at the curfew place or has parental responsibility for a person who is living at the curfew place consents to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Figura (No 2)

Details

AGLC: R v Figura (No 2) [2019] ACTSC 222
Case: [2019] ACTSC 222
Decision Date: 9 August 2019

CaseChat Overview and Summary

The case before the court involved a defendant, Figura, who was convicted of several offences. The primary issue for determination was the appropriate sentence to be imposed on the defendant. The case was heard and determined by the relevant court, which will be referred to as the court throughout this summary. The defendant had a history of drug use, specifically methamphetamines, and the court had to consider this factor in determining the appropriate sentence. The court was required to decide whether the defendant's sentence should be served by an intensive corrections order (ICO), given his extensive history of drug use and the significant time he had already spent in custody.

The court needed to weigh various factors in reaching its decision. These included the nature and circumstances of the offending conduct, the defendant's background and history of drug use, and the length of time he had already spent in custody. The court also considered the potential benefits of an ICO in terms of rehabilitation and reintegration into society. In determining the appropriate sentence, the court had to balance the need for punishment and deterrence with the possibility of rehabilitation and the defendant's capacity to benefit from an ICO.

In delivering its judgment, the court considered the evidence presented and the arguments made by both parties. The court concluded that an ICO would be an appropriate sentence for the defendant, taking into account his history of drug use and the substantial time he had already spent in custody. The court found that an ICO would provide the defendant with an opportunity for rehabilitation and reintegration into society, which would be in the best interests of both the defendant and the community. The court also considered the potential benefits of an ICO in terms of reducing reoffending rates and providing a more effective form of punishment than traditional imprisonment.

The court ordered that the defendant be sentenced to an ICO, with specific conditions and requirements to be determined by the relevant authorities. The court's decision was based on a careful consideration of the evidence and arguments presented, and the court was satisfied that an ICO would be the most appropriate sentence in the circumstances. The final orders of the court were set out in paragraph [17] of the judgment.

Orders

Orders of the court

See [17]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.