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 |
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…
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- R v Fleury [2022] ACTSC 103
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- [2022] ACTSC 103
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CaseChat Overview and Summary
The legal issues before the court were the appropriate course of action to take in response to the offender’s breaches of the good behaviour orders. Under the Sentence Administration Act, the court was required to cancel the good behaviour order and either impose the suspended sentence or re-sentence the offender in relation to the first breach, and could take no further action, warn the offender, make directions about the offender’s supervision, or amend or cancel the good behaviour order in relation to the second breach. The court considered the submissions from the parties and the fact that the good behaviour orders had been overtaken by the subsequent offending and more serious offences that had resulted in the offender being in custody.
After considering the submissions and the circumstances of the case, the court determined that no further action would be taken in relation to the breaches of the good behaviour orders. The court found that the good behaviour orders had been overtaken by the subsequent offending and the more serious offences that had resulted in the offender being in custody. The court also noted that the packaging from the drug seizures did not yield any fingerprints that could be linked to the offender, and that the DNA evidence from the spray can was not relevant to the charges in this matter. The court accepted the submissions from the offender’s legal representative that the good behaviour orders had been overtaken by events and that no further action was appropriate. The court made no orders in relation to the breaches of the good behaviour orders.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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. 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: The following items were located and photographed but not seized: 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: 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.