R v Figura (No 3)

[2021] ACTSC 162

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Figura (No 3)

Citation:

[2021] ACTSC 162

Hearing Date:

19 July 2021

DecisionDate:

19 July 2021

Before:

Mossop J

Decision:

See [20] and [22]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – breach of intensive correction orders – further offences – breach offences dealt with in the Magistrates Court – young offender – some prospects of rehabilitation – intensive correction orders cancelled – terms of full-time detention imposed

Legislation Cited:

Crimes (Sentence Administration) Act 2005 (ACT), s 65

Crimes (Sentencing) Act 2005 (ACT), s 80

Criminal Code 2002 (ACT), ss 308, 318, 403

Cases Cited:

R v Figura (No 1) [2019] ACTSC 149

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

Parties:

The Queen ( Crown)

Ashley Figura ( Offender)

Representation:

Counsel

C Muthurajah ( Crown)

S Avery ( Offender)

Solicitors

ACT Director of Public Prosecutions ( Crown)

Sarah Avery Legal Practice ( Offender)

File Numbers:

SCC 69 of 2019

SCC 132 of 2019

MOSSOP J:

Introduction

1. On 6 June 2019, the offender, Ashley Figura, was sentenced by me to an aggregate sentence of 48 months for the following offences:

(a)three counts of theft by joint commission (CC2019/3169, CC2019/3170 and CC2019/3171), contrary to s 308 of the Criminal Code 2002 (ACT);

(b)two counts of damaging property by joint commission (CC2019/6376 and CC2019/6377), contrary to s 403 of the Criminal Code;

(c)two counts of driving a motor vehicle without consent (CC2019/1335 and CC2019/1337), contrary to s 318(2) of the Criminal Code; and

(d)one count of dishonestly taking a vehicle without consent (CC2018/14895), contrary to s 318(1) of the Criminal Code: see R v Figura (No 1) [2019] ACTSC 149.

1. On 9 August 2019 I ordered that the aggregate sentence of 48 months be served by way of an intensive correction order (ICO): see R v Figura (No 2) [2019] ACTSC 222. The ICO commenced on 19 February 2019 and was due to expire on 18 February 2023.

1. On 26 August 2019 Magistrate Hunter imposed ICOs in respect of additional offences that were before the Magistrates Court. Those ICOs were for an aggregate period of 13 months. They were due to commence on 18 June 2022 and would have expired on 17 July 2023.

1. The offender has breached the core conditions of the ICOs imposed by the Supreme Court and the Magistrate Court by committing a number of further offences between 20 November 2019 and 30 December 2020.

1. The offender was sentenced for the further offences by Magistrate Campbell on 30 April 2021. In relation to those offences, he received an aggregate sentence of 18 months’ imprisonment. Magistrate Campbell also made orders cancelling the ICOs imposed by Magistrate Hunter and imposing an aggregate term of 13 months’ imprisonment starting from 11 December 2019.

1. Prior to Magistrate Campbell dealing with the matters, the sequence of sentences was that there were the sentences imposed by me which were then to be followed by the sentences imposed by Magistrate Hunter. There was some degree of concurrency as between the two sets of sentences. By the time Magistrate Campbell dealt with the cancellation of Magistrate Hunter’s ICOs, those sentences had not yet started and hence, upon cancellation the whole of the sentences needed to be served. Magistrate Campbell adjusted the date of those sentences so that they were backdated to a date that took into account the various periods that the offender had spent in custody following his arrest on 21 November 2019. At that time, the total period the offender had spent in custody since his 21 November 2019 arrest was 504 days. The effect of the backdating was that Magistrate Hunter’s sentences started on 11 December 2019 and the last of them ended on 10 January 2021. Magistrate Campbell imposed her sentences following Magistrate Hunter’s sentences, although there was some concurrency. The first of those sentences commenced on 10 October 2020 and the last of them ended on 9 April 2022. Her Honour set a non-parole period which ended on 9 August 2021. In relation to the 18‑month period that her Honour imposed, that was 55 per cent of the head sentence but when considered together with the sentences imposed as a result of the cancellation of the ICOs made by Magistrate Hunter, the non-parole period was 71 per cent of the head sentence.

1. In case it is not already obvious, anybody who wishes to properly understand either the earlier or the subsequent sets of sentences will need to do so by reference to a graph incorporating the start and end dates of each of the sentences.

Subjective circumstances

1. The offender’s subjective circumstances at the time of the offending were set out in R v Figura (No 1) [2019] ACTSC 149.

1. An updated pre-sentence report dated 14 July 2021 has been prepared in relation to the offender’s current circumstances.

1. I described the offender’s subjective circumstances in my earlier reasons: see R v Figura (No 1) [2019] ACTSC 149 at [46] – [50]. Unfortunately, the assessment by the author of the intensive correction assessment that he was at “a medium to high risk level of general reoffending” proved to be accurate: R v Figura (No 2) [2019] ACTSC 222 at [10]. For the purposes of the proceedings before Magistrate Campbell, the offender gave oral evidence and was cross-examined in relation to his personal circumstances. That evidence elaborated upon his subjective circumstances, demonstrating a history of youth homelessness, early exposure to alcohol and other drugs and childhood exposure to domestic violence. Of significance also is that his partner gave birth in March 2020 to a young girl who was very premature and had and has significant health problems. This was a significant factor in one of the offences for which he was sentenced by Magistrate Campbell, namely being a prisoner unlawfully at large.

1. The offender relied upon a number of documents generated during the course of his time at the Alexander Maconochie Centre. A number of those related to matters prior to my earlier sentence. However, it is significant that in September 2020 he completed the Solaris Therapeutic Community program and the reports of his participation within that program were very positive.

1. The pre-sentence report identifies that he had ceased participating in the Arcadia House residential rehabilitation program shortly after he was sentenced by me in August 2019. It identifies that he is currently completing his first year of a bachelor degree in construction management through the Open University. He is identified by the author of the pre-sentence report as being at a “high risk of general reoffending”, although the author notes that he adequately demonstrated victim empathy and with family and external services support was capable of rehabilitating in the community.

Consideration

1. Under s 65 of the Crimes (Sentence Administration) Act 2005 (ACT) the court is required to cancel the ICO unless cancellation is not in the interests of justice and, if the court cancels the ICO, to order that the remainder of the offender sentence be served by full‑time detention. Section 65(5)(a) of the Crimes (Sentence Administration) Act refers to the court being required to state when the period of full-time detention starts and ends. In this case, both parties agreed that this gave the court the power to adjust the starting date of each sentence so that those dates were appropriate, having regard to the other sentences to which he was subject. Neither party contended that the court was limited to simply imposing the sentences during the periods that they would otherwise have been required to have been served if they had not been served by way of intensive correction.

1. I do not consider that the cancellation of the ICOs that I imposed would not be in the interests of justice. Those orders have been overtaken by the offender’s subsequent offending for which he has been given a substantial custodial sentence as well as the cancellation of Magistrate Hunter’s ICOs. The rehabilitative goals sought to be achieved by keeping the offender out of custody have been overtaken by the subsequent sentences. Although I do not need to decide whether the maintenance of the ICO is legally open, it would at least appear to be inconsistent with the policy behind s 80 of the Crimes (Sentencing) Act 2005 (ACT).

1. I have also taken into account the positive conduct of the offender when participating in the Solaris Therapeutic Community program. However, the picture is not all one way. His rehabilitation is definitely a work in progress and it remains to be seen whether he can live outside of the prison environment in a way that keeps him free of drugs and other offending behaviour. I note in that regard the particularly unpleasant conduct directed at his partner which was the subject of several of the offences for which he was sentenced by Magistrate Campbell.  Unfortunately, experience in this case suggests that the assessment of a high risk of reoffending is likely to be accurate. However, the offender remains a young man and certainly there are significant signs that he may be able to rehabilitate himself.

1. That means it is necessary to order that the remainder of those sentences which have not been completed be served by full-time detention. The sentences that fall into this category are:

(a)part of the sentence for theft (CC2019/3170) for which he was sentenced to imprisonment for 18 months from 19 October 2020 until 18 April 2022 which has been partially served;

(b)the whole of the sentence for take motor vehicle without consent (CC2018/14895) for which he was sentenced to 18 months’ imprisonment from 19 July 2021 until 19 October 2022; and

(c)the whole of the sentence for theft (CC2019/3171) for which he was sentenced to 4 months’ imprisonment from 19 October 2022 until 18 February 2023.

1. The starting dates of these sentences or the remainder of these sentences are to be adjusted so as to create an appropriate overall sentence for the three separate series of offences. However, the relationship as between these three outstanding sentences should be maintained.

1. I do not consider that the starting date for the remainder of the sentences should be set so that they are concurrent with any of the sentences imposed by Magistrate Campbell. That is because the offending is unrelated. In my view, any issue of totality may be dealt with more appropriately through the setting of an appropriate non-parole period.

1. The remaining period of the theft sentence is the period equivalent to the period from 19 July 2021 until 18 April 2022, that is a period of nine months.

1. Therefore, the orders that I will make in relation to the remainder of the offender’s sentences are:

1.     On the charge of theft (CC2019/3170) the intensive correction order made on 9 August 2019 is cancelled and the remainder of the offender’s sentence, being a period of nine months, is to be served by full-time detention commencing on 10 April 2022 and ending on 9 January 2023.

2.     On the charge of take motor vehicle without consent (CC2018/14895) the intensive correction order made on 9 August 2019 is cancelled and the remainder of the offender’s sentence, being a period of 18 months, is to be served by full‑time detention commencing on 10 April 2022 and ending on 9 October 2023;

3.     On the charge of theft (CC2019/3171) the intensive correction order made on 9 August 2019 is cancelled and the remainder of the offender’s sentence, being a period of four months, is to be served by full-time detention commencing on 10 July 2023 and ending on 9 November 2023.

1. The next question is the setting of the non-parole period. I will do that by reference to the sentences of imprisonment imposed as a result of the cancellation of Magistrate Hunter’s ICOs and the sentences imposed by Magistrate Campbell, as well as the sentences which I have ordered to be served by full-time detention. The total period is a period from 11 December 2019 until 9 November 2023, a period of 46 months and thirty days. The non‑parole period will be a period of 24 months, commencing on 11 December 2019 and ending on 10 December 2021. I recognise that this is a short non-parole period. However, it must be recognised that prior to the imposition of my original sentence and taken into account in that sentence, was a period of five months and 23 days that the offender had spent in custody. This period is in addition to the period that was taken into account by Magistrate Campbell. In circumstances where in my original sentence that period was taken into account through a backdating exercise and where this period of the sentence has been served, I consider that the most appropriate way to recognise its existence when cancelling the ICOs is by taking some account of it in setting the non-parole period. A short non-parole period and a lengthy period of supervision will also take proper account of the offender’s youth and the fact that his overall potential for rehabilitation may be best realised by a longer than usual period the subject of supervision.

1. As I consequence, I order that:

4.     The non-parole period starts on 11 December 2019 and ends on 10 December 2021.

I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.

Associate:

Date: 20 August 2021