R v Fleury
[2022] ACTSC 103
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Fleury |
Citation: | [2022] ACTSC 103 |
Hearing Date: | 27 January, 2 May 2022 |
DecisionDate: | 6 May 2022 |
Before: | McWilliam AJ |
Decision: | See [111] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in cannabis – possession of a prohibited weapon – assault occasioning actual bodily harm – using an offensive weapon – causing damage to property – failure to comply with public health direction – where further offences breached good behaviour orders |
Legislation Cited: | Criminal Code 2002 (ACT) ss 312, 324, 403 603 Crimes Act 1900 (ACT) ss 27, 116, 380 Protection of Persons and Property Act 1971 (Cth) s 11 |
Cases Cited: | Bui v The Queen [2015] ACTCA 5 Cranfield v The Queen [2018] ACTCA 3 R v Ogilvie (No 2) [2016] ACTSC 265 |
Parties: | The Queen (Crown) Jayke Steven John Fleury (Offender) |
Representation: | Counsel K Lee (Crown) J Sabharwal (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Tim Sharman Solicitors (Offender) | |
File Number(s): | SCC 163 of 2021 SCC 164 of 2021 SCC 7 of 2022 SCC 8 of 2022 SCC 41 of 2022 SCC 104 of 2022 |
MCWILLIAM AJ:
Mr Jayke Stephen John Fleury (the offender) is before the Court for sentence in relation to three series of offences. They are as follows:
(a)Series 1 (committed 4 July 2019):
(i)CC2020/3244: trafficking in a trafficable quantity of cannabis, contrary to s 603(5) of the Criminal Code 2002 (ACT) (Criminal Code). The maximum penalty the offence is 10 years’ imprisonment, a fine of $160,000, or both.
(ii)CC2020/3246: possession of a prohibited weapon, contrary to s 5 of the Prohibited Weapons Act 1996 (ACT) (Prohibited Weapons Act). The maximum penalty for the offence is 5 years’ imprisonment, a fine of $80,000, or both.
(b)Series 2 (committed 26 April 2021):
(i)CC2021/11764: assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty for the offence is 5 years’ imprisonment.
(c)Series 3 (committed 25 September 2021):
(i)CC2021/10019: aggravated burglary, contrary to s 312 of the Criminal Code. The maximum penalty for the offence is 20 years’ imprisonment, a fine of $320,000 or both.
(ii)CC2021/9887: using an offensive weapon against a person likely to endanger human life or cause grievous bodily harm contrary to s 27(3)(c) of the Crimes Act. The maximum penalty for the offence is 10 years’ imprisonment.
(iii)CC2022/1988: causing damage to property of a value not exceeding $5,000, contrary to s 116(3) of the Crimes Act. The maximum penalty for this offence is 2 years’ imprisonment, a fine of $8,000 or both.
(iv)CC2021/9891: failing to comply with public health direction, contrary to s 120(4) of the Public Health Act 1997 (ACT) (Public Health Act). The maximum penalty for the offence is a fine of $8,000.
The primary offence is the trafficking offence (CC2020/3244). In relation to that offence, the offender has requested that the Court take into account the following additional offence:
CC2020/3245: Possession of property reasonably suspected of being stolen or otherwise unlawfully obtained (namely $1,820 in cash), contrary to s 324(1) of the Criminal Code. The maximum penalty for this offence is 6 months’ imprisonment, fine of $8,000, or both.
Upon conviction for the Series 2 offence listed above, the offender will be in breach of a good behaviour order previously made on 26 May 2020 in relation to an offence of common assault (CC2019/9902), for which the offender was sentenced in the Magistrates Court to 3 months’ imprisonment, fully suspended subject to an 18-month good behaviour order. The Court is required to deal with this breach, in accordance with s 110 of the Crimes (Sentence Administration Act) 2005 (ACT) (Sentence Administration Act). Under s 110(2), the Court must cancel the good behaviour order and either impose the suspended sentence that had been imposed, or re-sentence the offender.
Similarly, upon conviction for the offences constituting Series 3 listed above, the offender will be in breach of a further good behaviour order made on 11 June 2021 in relation to an offence of driving with a prescribed drug in oral fluid (methylamphetamine (CC2019/6201). For that offence, the offender was sentenced in the Magistrates Court to a 9-month good behaviour order. No security was given under the order. The Court is required to deal with this breach in accordance with the requirements of s 108 of the Sentence Administration Act, with available sentencing options being to take no further action, warn the offender, make directions about the offender’s supervision, or amend or cancel the good behaviour order. In light of what follows, and having received submissions from the parties, the good behaviour order has been overtaken by the subsequent offending and the more serious offences that have resulted in the offender being in custody. No further action will be taken.
Facts relation to the trafficking and prohibited weapon offences (Series 1)
On Thursday 4 July 2019, police executed a search warrant at the home of the offender in Gungahlin.
The offender lived at this residence, which was leased by ACT Housing to the offender’s partner. At the time of the execution of the warrant, the offender was the only person living at the address.
The offender was home at the time the warrant was executed, but entry to the unit had to be gained by the AFP Specialist Response Group. Once police were able to enter, the offender was located and identified himself to police.
During the search of the residence, police located and seized the following items:
(a)1 clip-seal bag containing 22 grams of cannabis on the kitchen bench, next to the microwave;
(b)Dried cannabis plant branches weighing 206.1 grams in total inside the wardrobe of the offender’s bedroom;
(c)A clip-seal bag containing 8.9 grams of cannabis inside a drawer in the bedside table in the offender’s bedroom;
(d)A clip-seal bag containing 7.6 grams of cannabis on the top shelf of the wardrobe in the offender’s bedroom;
(e)$1,820 in cash on the top shelf of the offender’s wardrobe, next to the cannabis that was found on that shelf;
(f)Two large bags of cannabis, one vacuum-sealed and the other in a large clip-sealed bag, containing a combined total of 781.2 grams of cannabis, in a drawer unit inside the wardrobe of the offender’s bedroom; and
(g)A pressurised spray can of “NATO” branded personal defence spray on top of the same bedside table in the offender’s bedroom that also contained a bag of cannabis.
The following items were located and photographed but not seized:
(a)A small set of digital scales in the kitchen; and
(i)A package of small, empty clip-seal bags in the kitchen.
The offender declined to answer any questions in relation to the items.
The drug seizures were analysed by the ACT Government Analytical Laboratory (ACTGAL). Each of the five drug seizures were confirmed to be cannabis with a total combined weight of 1.026 kilograms. This is more than three times the trafficable amount for cannabis (300 grams). On 30 July 2019, five certificates were issued under s 135A of the Public Health Act confirming the results of the analyses.
The packaging from the drug seizures was analysed by a fingerprint examiner and a forensic biologist. The results were as follows:
(a)The offender’s left thumb print was found on the front side of the large clip-seal bag of cannabis found in the drawer unit inside the offender’s wardrobe.
(b)There was an extremely strong likelihood that the offender’s DNA profile matched a DNA profile found on the drug packaging for 3 of the bags containing cannabis found in the offender’s apartment, namely:
(v)The clip-seal bag containing 8.9g cannabis;
(vi)The clip-seal bag containing 7.6g cannabis;
(vii)The vacuum-sealed bag and large clip-seal bag containing 781.2g cannabis in total.
(c)The remaining two bags contained partial and mixed DNA profiles which were unsuitable for identification purposes.
The pressurised spray can was also analysed by AFP Forensics. A DNA profile was obtained from the external surface of the can. There was extremely strong support for the proposition that the offender’s DNA profile matched the DNA profile obtained from the surface of the spray can.
The contents of the spray can were analysed by a forensic chemist and confirmed to contain Nonivamide, an oleoresin capsicum which is a prohibited weapon under Part 1.4, Schedule 1 of the Prohibited Weapons Act. The offender was not authorised by permit or licence to possess this prohibited weapon.
In terms of street value, according to the agreed facts cannabis is typically sold in either a stick (1 gram), half ounce (14 grams) or ounce (28 grams) amount.
In 2019, within the ACT jurisdiction, the price for:
(a)a stick (1 gram) deal of cannabis varied between $20 and $25;
(b)quarter ounce (7 grams) deal of cannabis varied between $80 and $100;
(c)half ounce (14 grams) deal of cannabis varied $150 and $200; and
(d)an ounce deal (28.4 grams) of cannabis varied between $200 and $350.
Depending on how the cannabis was to be sold, it had an estimated street value of between $5,855 and $20,492.
Facts relating to the assault occasioning actual bodily harm offence (Series 2)
The crux of the offence is that the offender threw a cigarette lighter at a police officer on 26 April 2021, which struck him in the right eye and caused laceration and bleeding.
Police had attended the offender’s residence, at that stage in Watson, after reports of the offender behaving erratically at that location. The offender became agitated and abusive before throwing the lighter.
At the time of the incident all police members present were in full police uniform and were easily identifiable as police officers executing their normal duties. At no point did the victim give the offender permission to assault him.
The offender was heavily intoxicated at the time of the offending and was later chemically sedated at Canberra Hospital. Police formed the view it was not appropriate to conduct a record of interview with the offender at that time.
At the time of the commission of this offence, not only was the offender subject to the 18-month good behaviour order referred to above, he was also on bail in relation to other charges.
Facts relating to the aggravated burglary, use of a prohibited weapon, breach of a public health order, and damage property offences (Series 3)
Five months after the Series 2 offence, on 25 September 2021, the offender was again intoxicated and alone in his residence in Watson. At the time, he had tested positive to COVID-19 and as a result was required to quarantine in his residence by ACT Health pursuant to a health direction.
At approximately 5:30pm the offender threw an object through the glass window at the front of his unit from the inside. The object fell into the courtyard below along with large shards of glass. The occupant of the unit below (the victim) heard the glass break and went out to his courtyard. He looked up to see the offender looking over the balcony. The man below asked the offender who was going to clean it up. The offender told him “I have brothers” in a threatening manner.
Shortly afterwards, the offender kicked open the front door of the unit below and entered the unit, holding an axe. The victim approached the offender with a baseball bat to prevent the offender from entering. He then engaged in a struggle with the offender, during which the offender took two swings at the victim with the axe directed at his upper body. The victim feared for his life but was able to deflect the blows using the bat. The victim broke free and fled the property.
The offender proceeded to destroy property belonging to the victim with the axe, namely two televisions and a mobile phone.
Police arrived at the address and engaged in extensive negotiations, during which the offender became highly agitated and aggressive, threatening suicide. He ultimately surrendered himself to police as the time was approaching 3am on 26 September 2021.
At the time of the commission of this offence, the offender was again subject to a good behaviour order (referred to above), as well as being on bail in relation to other charges.
The proceeding and the pleas of guilty
Trafficking and prohibited weapon offences (Series 1)
In relation to the trafficking and prohibited weapon offences, the offender was first summonsed to appear in the Magistrates Court on 31 August 2020. He initially pleaded not guilty, and the matter was given a trial date. The accused later pleaded guilty to the charges on 8 November 2021, at a relatively late stage in the proceedings and shortly after case conferencing.
It is well established that the applicable discount is a question of discretion, but for the benefit of this particular offender it is helpful to explain that the Court’s primary policy consideration is the utilitarian value of the plea: see Cranfield v The Queen [2018] ACTCA 3 at [37]-[38]. In R v Nicholas; R v Palmer [2019] ACTCA 36, the Court said at [52]:
Ordinarily, a discount of 15 to 20 per cent is allowed for a plea entered before or in connection with criminal case conferencing and prior to the setting of the trial date. Absent unusual circumstances, 20 per cent would be the upper limit in relation to a plea of guilty entered at that stage. In Blundell v The Queen [2019] ACTCA 34 at [13] (Blundell), this Court said:
It is also vital that persons coming to a criminal case conference do so with confidence that pleas of guilty will attract more than a minimum discount. This confidence should also extend to the community at large, knowing that persons will be treated consistently, in turn enhancing the proper administration of justice.
The Crown submitted that the Court must have regard to the overwhelming strength of the prosecution’s case (see s 35(4) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) including that:
(a)a trafficable quantity of cannabis was found at the offender’s residence, including in his bedroom;
(b)there was no evidence that anyone else was living at the residence at the time;
(c)given the quantity of cannabis, there was a presumption the offender intended to traffic the cannabis;
(d)there was further evidence of trafficking, namely, scales, clip seal bags and cash; and
(e)DNA and fingerprint evidence linked the offender to the cannabis.
If the Court is satisfied on established facts that the prosecution’s case for the offence was overwhelmingly strong, the court must not make any significant reduction for the fact of the guilty plea. I accept the case was extremely strong, but I would not put it as high as overwhelming and I consider there was utilitarian value, notwithstanding the lateness of the plea and having had regard to the other matters in s 35(2) of the Sentencing Act that have not been expressly referred to above, that a discount of 15% is appropriate in relation to each offence.
Assault occasioning actual bodily harm offence (Series 2)
The offender was initially charged with assaulting a frontline community service provider. However, the charge was upgraded to one of assault occasioning actual bodily harm. The offender pleaded guilty to this charge in the Magistrates Court on 10 December 2021, which was the first available opportunity on the fresh charge and accordingly a 25% discount is appropriate.
Aggravated burglary, use of a prohibited weapon, breach of a public health order, and damage property offences (Series 3)
At the time of his arrest on 25 September 2021 for the aggravated burglary, use of a prohibited weapon, breach of a public health order, and damage property offences, the offender was on conditional liberty granted on 30 August 2021 in relation to the drug trafficking and prohibited weapon offences.
He appeared in the Magistrates Court on 26 September 2021 and was charged at that time with:
(a)use of an offensive weapon contrary to s 27(3) Crimes Act;
(b)damage property not exceeding $5,000 contrary to s 116(3) Crimes Act;
(c)trespass on premises contrary to s 11(1) Public Order (Protection of Persons and Property) Act 1971 (Cth);
(d)possess offensive weapon contrary to s 380(1) Crimes Act; and
(e)fail to comply with direction contrary to s 120(4) Public Health Act.
No pleas were entered on this occasion and the offender was remanded in custody to 11 October 2021, when he appeared again in the Magistrates Court and was further charged with aggravated burglary, contrary to s 312 of the Criminal Code and damage property contrary to s 403 of the Criminal Code.
On 15 October 2021, the offender was represented by Legal Aid ACT and entered pleas of not guilty to each of the offences. Discussions occurred between the prosecution and the offender, during which time, the matter was committed to the Supreme Court (on 17 January 2022) and there were a number of court appearances.
The offender was arraigned and pleaded guilty to the aggravated burglary and use of an offensive weapon charges on 15 February 2022.
It is clear from the above that the pleas were not entered at the earliest opportunity but there nevertheless was significant utility. It is appropriate to discount the sentence that I would otherwise have imposed for each of the offences by 20%.
Objective seriousness
Series 1 offences - Trafficking in cannabis
The Crown drew the Court’s attention to the following sentencing principles underpinning drug trafficking offences, identified in Bui v The Queen [2015] ACTCA 5 at [41]:
(a) The role of the accused is an important consideration, those whose level in the operation is at a higher level of the hierarchy being more culpable: R v MacDonnell (2002) 128 A Crim R 44 at 50; [33].
(b) While, as decided in Wong v The Queen [2001] HCA 64; 207 CLR 584 at [67]-[70], the weight of the amount of drug is not of chief importance in determining the appropriate sentence, it remains a relevant factor, particularly in the context of the harm from its distribution effects: R v Bezan (2004) 147 A Crim R 430 at 438 at [34].
(c) The motivation for the offence is highly relevant, the purpose of profit being a more serious matter: R v Speechly (2002) 133 A Crim R 26 at [20]; R v Day (1998) 100 A Crim R 275 at 277.
In this case, the factors that I consider to be material to the objective seriousness of the offence are first, that police located a total of 1.026kg of cannabis spread around the offender’s home. The amount of cannabis was more than three times the trafficable quantity of the drug (300g), though admittedly far less than a commercial quantity of cannabis (30kg).
Second, given the offender possessed more than the trafficable quantity of cannabis, it is presumed, unless the contrary is proved, that the offender had the intention or belief about the sale of the drug required for the offence: Criminal Code s 604(1). In addition to this presumed intention, there was evidence of trafficking in that there were various packages of cannabis in clip-seal bags, empty clip-seal bags, digital scales and $1,820 in cash located next to a bag of cannabis in the offender’s wardrobe. Further, the street value of the cannabis was not insignificant: depending on how it was to be sold, as I have said above, it was worth between $5,855 and $20,492.
Third, although unsophisticated, the offender was nevertheless engaged in the business of drug trafficking for profit. Whilst more than a street level dealer, the offender was not in what would be described as the upper levels of the hierarchy of the drug trade.
Noting that identification of a “range” may not be particularly useful given the uncertainty of that term, I assess the offending as being at the lower end of the spectrum.
Series 1 offences – Possession of a prohibited weapon
The Court in R v McCallum [2020] ACTSC 1 (McCallum) at [25] outlined the relevant factors in assessing the objective seriousness of an offence of possessing a prohibited weapon:
In assessing the objective seriousness of such an offence, relevant factors include the nature of the prohibited weapon and the circumstances in which it was possessed. These factors may inform the danger or potential danger to the public associated with the particular offence.
Similar to the present facts, in that case the offender was also involved in drug trafficking. Murrell CJ observed at [26]-[28]:
26. In this case, the offender was a drug dealer and the items were located in his vehicle (as were a number of items associated with drug dealing). The possession of the weapons by the offender, who was engaged in drug dealing, posed a serious risk to the public and added to the objective seriousness of the offence.
27. As to the nature of the prohibited weapons in question—a baton, knuckle-duster, and taser—they were of significant seriousness, but not at the upper end of the range in terms of the danger that they inherently posed.
28. Taking into account the location and nature of the prohibited weapons and the surrounding circumstances, this was an offence of moderate objective seriousness.
In the present case, the prohibited weapon was a cannister of OC spray. Absent any evidence concerning the weapon’s past or intended future use, viewed in isolation the possession of the cannister could be assessed as a relatively minor offence: see R v Cole [2019] ACTSC 228 at [6]. However, it was nonetheless a dangerous weapon and posed a risk if used, particularly given the circumstances of the possession. It was located in an unsecured way, on top of a bedside table in the offender’s bedroom. Additionally, it was found in close proximity to several stores of cannabis (in clip seal bags and otherwise).
As illustrated in McCallum, the possession of the prohibited weapon in circumstances of trafficking cannabis increases its objective seriousness, although I would nevertheless place the conduct at the lower end of seriousness here.
Taking into account the additional scheduled offence
The Court is to take into account the additional scheduled offence of possession of property reasonably suspected of being stolen or otherwise unlawfully obtained in making a sentence related order for the principal offence of trafficking a trafficable quantity of cannabis.
I outlined the approach required by s 57 of the Sentencing Act recently in R v Pearce (No 2) [2022] ACTSC 71 at [23]-[25]. I adopt that approach here, and accordingly have had regard to the principles summarised by the Court of Appeal in R v Campbell [2010] ACTCA 20 at [46]-[50]. The existence of the additional offence shifts the emphasis of the sentence for the primary offence towards consideration of specific deterrence, and there may be greater emphasis placed on adequate punishment and denunciation of serious offences where there are other offences for which no punishment will be imposed: see R v Scrattenholz [2017] ACTSC 247 at [37].
I have taken the additional offence into account in the sentencing process and the ultimate penalty imposed.
Series 2 offence
The one Series 2 offence relates to the offender throwing a cigarette lighter at a police constable. The harm inflicted was a small laceration and bleeding above the victim’s right eye. It is far from the upper end of the range. However, this is nonetheless an assault on a police officer acting in the course of his duties, comparable to the biting of an officer in R v Shearer [2020] ACTSC 100 (Shearer), which was assessed at [73] as being at the upper end of the midrange of objective seriousness. As such, I would place the conduct as approaching the middle of the spectrum of objective seriousness for this offence.
Series 3 offences - Aggravated burglary
The aggravated burglary charge is aggravated by virtue of the offender’s possession of an offensive weapon (being an axe) at the time of the burglary: Criminal Code s 312(b). In R v Elphick [2021] ACTSC 9 at [113], Murrell CJ referred to matters that inform the objective seriousness of burglary offences. I have referred to these as relevant to the matter before the Court in my consideration below.
The offending occurred at a residential, rather than commercial, premises in the early evening, both of which elevate objective seriousness due to a heightened likelihood of encountering residents at home, where they are entitled to feel safe: see R v Hancock [2021] ACTSC 52 per Refshauge AJ at [33]; Simonds v The Queen [2013] ACTCA 13 at [54]. This factor weighs heavily on my assessment of objective seriousness.
The offending also appears to have been spontaneous and largely fuelled by intoxication. While this apparent lack of premeditation is a mitigating factor (see R v Pahl (No 2) [2017] ACTSC 155 at [15]), it does little to detract from the seriousness of breaking into a home with a dangerous weapon while the occupant is known to be present. The offender also entered the premises via forced entry by kicking down the door, which is objectively more serious than entering through a partially opened door, for example. Consequently, I consider this offence to be at the lower end of the high range of objective seriousness.
Series 3 offences - Using an offensive weapon against a person likely to endanger human life or cause grievous bodily harm
In assessing the objective seriousness of this offence, it is relevant to take into account “the nature of the offensive weapon used, the conduct engaged in with the offensive weapon, the reason for offending, the offender’s conduct at the time of the offending and [whether or not the offence] was committed in company: R v Featherstone [2019] ACTSC 218 at [30].
A wide range of items fall within the definition of “offensive weapon” in the Dictionary to the Crimes Act. An axe is clearly towards the upper end of seriousness, although perhaps not as seriousness as something like a firearm. The offending conduct was serious, and if the victim in relation to this offence had not blocked the attack, there was a high risk that he would have been injured. Notwithstanding that the victim approached the offender with a bat, the offender had broken into the victim’s home with an axe and it is clear that the offender was the aggressor.
Overall, I would assess this conduct as being above at the mid-range of objective seriousness for this offence.
Series 3 offences - Damage to property of value not exceeding $5000
Murrell CJ set out the considerations relevant to the objective seriousness of the offence of damage property in R v Rosewarne at [120], which relevantly include:
(a)The motive for the damage or theft; for example, whether damage was malicious or occurred to facilitate a burglary; and
(b)The extent or value of the damage.
On the facts before the Court, the motive for damage is unclear, but can be inferred to be frustration, fuelled by intoxication. It occurred in the context of a series of offences. The critical factor is the value of the damage: R v Collins (No 2) [2021] ACTSC 272 at [63]. In this case, the precise value of the property destroyed (two television sets and a mobile phone) is also unclear.
Series 3 offences - Failure to comply with a public health direction
Unsurprisingly, there is not significant jurisprudence guiding the objective seriousness of this offence. Given the context of the COVID-19 pandemic, it is important there are real consequences for breaches of such directions. The offender’s actions of leaving his home and breaking into the victim’s home, while infected with COVID-19 (thus exposing him to the offender’s infection), is not a trivial matter.
Subjective circumstances
The subjective circumstances are largely contained in a Pre-Sentence Report (PSR) that was before the Court. The PSR was completed before the charges referred to in Series 2 and 3 were before the Court. The parties nevertheless proceeded on the basis that the offender should be sentenced without seeking an updated PSR, but I have read the comments of the author of the PSR in the light of what has transpired since it was written.
As a consequence, the PSR author’s recommendations around the form of the sentence, the offender’s suitability for a good behaviour order and compliance with supervision orders, carry less weight.
I have also relied on material handed up by counsel for the offender, including letters from the offender and from a social worker. The contents of the offender’s correspondence to the court indicate that he has experienced disadvantage upon disadvantage, being let down by those whose responsibility it was to protect and care for him, including apparently persons in positions of authority over him as he was growing up.
Personal circumstances
The offender is currently 36 years of age. He is the elder of 2 sons born to his parents’ union. He described a difficult childhood, due to his parents’ substance use issues during his formative years. Additionally, ACT Corrective Services records state that when the offender was a child, he witnessed his father being violent towards his mother. The offender was predominately raised by his grandparents, in particular his maternal grandfather. His younger brother died when he was 23 years of age, and then at age 25, both of his parents also died 12 months apart.
The offender has an older half-brother due to a previous relationship from his father, and also has one surviving paternal grandmother. These people appear to be pro-social and supportive in his life, and his older half-brother expressed an intention to continue supporting the offender. The report author’s view was that the offender’s contact with these family members is sporadic, and this might be related to the offender’s emotional instability.
The offender advised of two significant relationships in his life. For the majority of his adult life, he was in a relationship with a woman who is also known to ACT Corrective Services. She had a daughter, who I will describe here as a “stepdaughter” to the offender. I appears the offender has little to any contact with that person.
The offender begun a relationship with his current partner in May 2020. The couple have an 11-month-old daughter who continues to reside with her mother and three siblings from the woman’s previous relationship. The offender’s current partner is clearly supportive of the offender and his rehabilitation, so he can be a committed father to their daughter.
Education, employment, and financial circumstances
The offender advised he stopped going to school on a regular basis when he commenced High School. He described “going off the rails” as a teenager, often getting into trouble for truanting and fighting with other students. The offender stated he completely stopped attending school when he was 16 years of age and achieved his Year 10 Certificate whilst in Juvenile Detention years later.
The offender described some unskilled work as a teenager and his longest period of employment in one job was approximately a year. He has found it difficult to retain a job, due to poor mental health and other instabilities. The offender is eligible for Job Seeker allowance through Centrelink.
The offender stated that whilst remanded in custody, he was employed as an area Delegate until he was moved to different accommodation. He advised he hoped to be given another job while in the Alexander Maconochie Centre (AMC). In his detainee statement of employment form, his supervisors commented that:
[The offender] has been proactive in his participation and is regularly offering time to assist with running of sessions in the activities area…
[The offender] provides valued input at activities team meetings, to contribute to improvement of services and programs. [He] collaborates well with other detainees regardless of classification and security level.
…
Since being employed at the AMC Mr Fleury has had no recorded absences and attends his place of work diligently. I would have no hesitation in recommending Mr Fleury for this or similar work in the future.
Living circumstances
The offender advised that throughout the majority of his life, he has had unstable accommodation. He described spending many years of his childhood moving in and out of different family members’ homes, including with his older brother and grandparents. At the time the PSR was completed, the offender advised he moved between his current partner’s home and accommodation for the homeless, as well as his uncle’s property. The offender stated that his current partner did not allow him to use drugs at her house and this is why he would often choose to reside elsewhere, allowing him to consume alcohol and illicit substances.
Clearly, it is in the offender’s interest that he complete a rehabilitation program to give him the best chance of living in stable accommodation with his partner and daughter.
Alcohol and drug use
The offender has a significant history of alcohol and drug use. The offender reported first consuming alcohol and cannabis when he was 9 years of age, smoking cannabis daily from age 12. When asked what drugs he has taken in his life, the offender answered, “everything”.
The offender advised he first tried heroin when he was 15 years of age, while in a boys’ home. The Pre-Sentence Report indicates that the offender previously told ACT Corrective Services that he developed a dependence to heroin at 19 years of age. The offender claimed that he last used heroin approximately two weeks prior to being remanded in September 2021. The offender and his partner advised that while the offender has been in custody, he has been prescribed depot buprenorphine, an injection which assists with heroin withdrawal and maintenance in order to achieve abstinence.
It appears from what the offender has told the Court in his letter that this period of turmoil coincides with conduct by others and harmful experiences to the offender while at a youth detention centre. To date, he has chosen not to raise this or to directly address the issue. That is very much a personal issue for him.
The offender described a history of abusing prescription medications, such as Valium, including in the months prior to the offences constituting Series 1.
The offender claimed that alcohol had never been an issue for him until recently and this was related to his poor mental health over the last 12 months. His criminal history indicates otherwise, but in any event the current position is that alcohol was a significant contributing factor in the current offending, and it is a real issue that he must address if he is to get to the point where he can live a life that that does not involve the criminal behaviour repeatedly bringing him before the courts.
The offender described his use of alcohol, heroin and pills as tools to assist his emotional regulation.
The offender has a long history of referrals to substance use intervention treatments, including short courses, counselling, residential rehabilitations programs, and pharmacological treatments. The offender, his partner and his half-brother all advised that the offender had been making efforts towards entering into a residential rehabilitation or similar prior to his last arrest.
The offender desires to reconnect with Canberra Recovery Services and to apply for their residential rehabilitation program, or if that is unavailable, their Day Program in the meantime
Medical, Emotional and Mental Health
The offender has a history of mental health issues, including previous diagnoses of adjustment disorder, mixed anxiety, depressive disorder and obsessive compulsive disorder. The offender articulated a tendency to use alcohol and other drugs when he is not feeling mentally well.
The offender also referred to a history of numerous traumas and claimed that his mental health became increasingly worse in 2021 after experiencing some unexpected triggers, relating to abuse the offender suffered while in youth detention.
The offender acknowledged that with alcohol, he can become aggressive towards people around him, but also described breaking down in tears, presumably due to the emotional tensions he experienced at the time.
The offender also has a history of abusing substances, including pills, in attempts to self-harm. The offender advised that mental health workers in custody stated he would likely benefit from trauma informed mental health intervention in the future. There are indications that the offender did make some efforts to engage with a psychologist when in the community; however instead of being able to utilise the psychologist at the community funded health centre, he was referred to their private practice. This often resulted in confusion and embarrassment due to being a bulk billed patient when others were not. The offender described seeking alcohol and getting intoxicated instead, further demonstrating inability to manage negative emotions in a healthy way.
ACT Corrective Services records indicate that when the offender is in custody, he is usually given anti-depressant medication, and appeared to generally do well. His reduced access to drugs and alcohol while incarcerated is also likely a factor.
The offender is optimistic about his future and indicated that his sense of self-worth may be improved. From the offender’s evidence in court, I agree that the offender appears to be in a stage in his maturity where he might finally be able to successfully abstain from drugs and alcohol and the criminal behaviours that ensue as a result.
Consistent with that view, the offender engaged in therapeutic sessions with a social worker while in the AMC, focussing on distress tolerance and building coping strategies. It was noted he was motivated to participate in these sessions and reach self-identified goals. Again, that is to be commended.
Attitude to offences
In relation to the trafficking charge, the offender claimed he had been growing the cannabis plants for his own personal use and that the same would not be illegal anymore due to recent changes in the legislation. The offender claimed that he preferred to not have contact with fellow drug users or dealers, hence the desire to have his own supply of cannabis.
Regarding the possession of offensive weapon charge, the offender claimed to be unaware that it was illegal. The offender appeared to be blaming the website that sold the product and expressed frustration that he had been charged.
In his letter to the Court dated 16 April 2022, the offender expressed regret and disgust for his offending actions. He stated:
I cannot go back and change the way I did things but I can look forward and change the way I do everything and show I am sorry by letting my actions speak for themselves. I want to no longer be negatively defined as a product of my environment but rather have my environment defined as a product of me, and for all the right reasons. I don’t aspire to be a millionaire or cure cancer. I will have achieved everything I could hope for if I can say I am the best father to Mia, step father to her siblings and one day husband to Tennille, and say that everything I did, I did to the best of my ability.
Prospects of rehabilitation
There is no question the offender requires a long-term residential rehabilitation option. This should aim to begin addressing both his mental health and substance use issues, as the two appear to be significantly intertwined.
The offender has contacted Canberra Recovery Hub, operated by the Salvation Army, who recommend he contact them after his release from custody to engage in day programs. He has made a Relapse Prevention Plan and Self-Management Plan, identifying his triggers, red-flag behaviours, coping strategies, support people, and options for support programs once released from custody.
Criminal history
The offender has a lengthy criminal history, including convictions for burglary, theft, aggravated robbery, and assault. He has a demonstrated pattern of re-offending when in the community.
The offender’s lengthy criminal history disentitles him to the leniency he might otherwise be afforded. The Crown submitted that this, combined with the objective seriousness of the offending, means that no penalty other than imprisonment is appropriate (for the offences attracting imprisonment as a penalty): s 10(2) of the Sentencing Act.
However, it is proper to bear in mind the coalescence of the offender’s drug addiction and traumatic experiences as a young person with his offending behaviour, particular in circumstances where the offender has taken steps towards rehabilitation for both these issues.
Nonetheless, the fact the offender was on conditional liberty at the time of the Series 2 and 3 offences is an aggravating circumstance. As referred to by Wood CJ at CL, Newman, Hulme and Simpson JJ agreeing in R v Tran [1999] NSWCCA 109 at [15]:
… Betrayal of the opportunity for rehabilitation offered through probation or parole, or of provisional release on bail, is regarded very seriously and should here have been weighed against the respondent…
Comparable cases
The Crown referred the Court to a number of cases by way of comparison, which I have taken into account, accepting that the objective in doing so is not to bind the sentencing court to achieve numerical equivalence with similar sentences imposed in the same jurisdiction: see Hili v The Queen [2010] HCA 45; 242 CLR 520.
The Crown referred the Court to the decisions of R v Conomos [2019] ACTSC 183, R v Srna [2018] ACTSC 337, R v Erntner [2018] ACTSC 335, R v King [2017] ACTSC 119, R v Annabelle (a pseudonym) [2021] ACTSC 196, McCallum, R v Whitelock [2019] ACTSC 396, and R v Cole [2019] ACTSC 228. I have taken these into account, noting none of the cases referred to address the particular cocktail of offences before the Court today, nor the particular circumstances of this offender.
I have also had regard to the decision of R v Crawford [2022] ACTSC 87, relied upon by the offender’s legal counsel, where the offender was sentenced to 19 months’ imprisonment for the offence of aggravated burglary and 12 months’ imprisonment for the offence of theft. In this case, the offender had a significantly disadvantaged upbringing and a failed attempt at rehabilitation under the stewardship of Refshauge AJ in the Drug and Alcohol Court.
Sentencing considerations
Breaches of good behaviour orders (GBO) - the common assault offence
As the offender will be convicted of the Series 2 offences, he will be in breach of a good behaviour order imposed on 26 May 2020 by Magistrate Walker in relation to an offence of common assault (CC2019/9902). The Court must cancel the good behaviour order and either impose a suspended sentence or resentence the offender for the offence: see s 110(2) of the Sentence Administration Act. There is no presumption in favour of imposing the original sentence that had been suspended: Guy v Anderson [2013] ACTSC 5 (Guy v Anderson) at [83]-[87]. Relevant to the decision as to the appropriate response to breach of a good behaviour order are the factors outlined by Refshauge J in R v Curtis (No 2) (R v Curtis) [2016] ACTSC 34 at [18], including
… 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.
Other relevant factors brought to the Court’s attention by Counsel for the Crown are:
(a)the actual facts of the matter for which the offender was first sentenced: see R v Beniamini (No 2) [2017] ACTSC 32 (Beniamini) at [52]-[53];
(b)whether the breach indicates an intention to disregard the obligation to be of good behaviour;
(c)whether the offender has received any warnings with respect to breaches;
(d)the level of understanding of the offender of his obligations under the terms of the order and the consequences of the breach: see The Queen v PM (No 2) [2015] ACTSC 358 at [20]-[22];
(e)the nature of judicial and community resources previously devoted to the offender: see R v Bennett [2017] ACTSC 104.
If the Court determines resentencing is the most appropriate course, all relevant sentencing factors would be taken into account: s 110(4) of the Sentence Administration; Beniamini at [52]. The Court ought ordinarily impose a more severe sentence, because the breach of good behaviour order shows that the trust reposed in the offender has been eroded: R v Ogilvie (No 2) [2016] ACTSC 265 at [30].
However, in certain circumstances, the Court can impose the same sentence: R v Curtis (No 2). In fact, as outlined by Refshauge J in Guy v Anderson at [87]:
There are many statements by courts of the principle that generally a breach of the conditions of a good behaviour order or the like following the suspension of a sentence will result in the offender serving the sentence that was suspended. See, for example, R v Buckman (1987) 47 SASR 303 at 304; Director of Public Prosecutions (NSW) v Cooke (2007) 168 A Crim R 379 at 386; [21]; Taylor v Bowden at [36]; Saga v Reid [2010] ACTSC 59 at [99]–[101].
In this case, the breach is serious and of a similar character to the offending behaviour which constituted the original offence. At the time of the breach, the offender had served approximately 11 months of the 18-month order. Weighing these factors, it is appropriate to reimpose the original sentence of 3 months’ imprisonment, although in the interests of totality, this will be entirely concurrent with the sentence imposed for the fresh offence which constitutes the breach.
Penalty and Sentence structure
Given the seriousness of the offences, and the importance to be placed on general deterrence in sentencing for drug trafficking (see McCallum at [71]) no sentence other than a term of imprisonment (for those offences attracting that penalty) is appropriate.
However, the multiplicity of offences for which this offender is to be sentenced means that totality is a central consideration in this sentence. The Court of Appeal summarised the relevant principles for the fixing of sentences for multiple offences and the considerations of totality in O’Brien v The Queen [2015] ACTCA 47 at [26]:
(a) When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce v The Queen (1998) 194 CLR 610 at 623-624.
(b) The principle of totality requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: Mill at 63.
(c) A countervailing factor is the need to ensure that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences: R v Wheeler [2000] NSWCCA 34 at [36]. The Court must avoid any suggestion that what is being offered is a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]; R v MAK (2006) 167 A Crim R 159 at [18].
(d) Where offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent: Cahyadi v The Queen (2007) 168 A Crim R 41 at [27].
The structure of the sentence imposed will reflect these considerations. That has resulted in a degree of concurrency and also a shorter non-parole period. In that regard, it is clear that for this offender, drug and alcohol abuse, combined with a myriad of disadvantage factors, are causative to his pattern of offending behaviour. He has frequently been before the courts and his own measures or current desire to treat his addictions have been unsuccessful. But for the fact that the current resources of the Drug and Alcohol Sentencing list do not currently permit the Court considering the imposition of a Drug and Alcohol Treatment Order, he would likely have been an appropriate candidate for such an intervention. Given that option is not presently available, I consider it appropriate to craft a sentence that would allow the offender the greatest opportunity to pursue his own rehabilitation with the benefit of supervision that an extended period on parole provides, supported by his partner.
As a result, a non-parole period towards the lower end of the usual range will be imposed and I recommend that the Sentence Administration Board take into account any availability of residential rehabilitation for this offender when considering parole, pursuant to s 67 of the Sentencing Act.
The offender was arrested on 25 September 2021 and has been in custody since that date. The overall sentence will be backdated to this date.
Conclusion and Orders
Accordingly, I make the following orders:
(a)In respect of the offence of trafficking in a trafficable quantity of cannabis (CC2020/3244), the offender is sentenced to a term of imprisonment of 17 months (reduced from 20 months), backdated to commence on 25 September 2021 and ending on 24 February 2023.
(b)In respect of the offence of possession of a prohibited weapon (CC2020/3246), the offender is sentenced to a term of imprisonment of 2 months and 17 days (reduced from 3 months), to commence on 6 May 2022 and end on 22 July 2022.
(c)In respect of the offence of assault occasioning actual bodily harm (CC2021/11764), the offender is sentenced to a term of imprisonment of 9 months (reduced from 12 months), to commence on 6 May 2022 and ending on 5 February 2023.
(d)In respect of the offence of aggravated burglary (CC2021/10019), the offender is sentenced to a term of imprisonment of 1 year 7 months and 6 days (reduced from 24 months), to commence on 25 February 2023 and ending on 30 September 2024.
(e)In respect of the offence of using an offensive weapon against a person likely to endanger human life or cause grievous bodily harm (CC2021/9887), the offender is sentenced to a term of imprisonment of 2 years 4 months and 22 days (reduced from 36 months), to commence on 25 February 2023 and ending on 16 July 2025.
(f)In respect of the offence of causing damage to property of a value not exceeding $5,000 (CC2022/1988), the offender is sentenced to a term of imprisonment of 7 months 5 days (reduced from 9 months), to commence on 25 February 2023 and ending on 29 September 2023.
(g)In respect of the offence of failing to comply with public health direction (CC2021/9891), the offender is fined $400, with no time to pay.
(h)In respect of the breach of the good behaviour order made on 26 May 2020 in relation to an offence of common assault (CC2019/9902), the good behaviour order is cancelled and the offender is resentenced to 3 months’ imprisonment, to commence on 6 May 2022 and ending on 5 August 2022.
(i)The total term of imprisonment is 3 years, 9 months and 22 days.
(j)The non-parole period is set at 23 months, to commence on 25 September 2021 and expire on 24 August 2023.
| I certify that the preceding one hundred and eleven [111] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice McWilliam. Associate: Date: 6 May 2022 |
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