R v Fleury (No 2)
[2022] ACTSC 293
•25 October 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Fleury (No 2) |
Citation: | [2022] ACTSC 293 |
Hearing Date: | 24 October 2022 |
DecisionDate: | 25 October 2022 |
Before: | McWilliam AJ |
Decision: | See [33] and [35] |
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 CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Whether Drug and Alcohol Treatment Order appropriate |
Legislation Cited: | Crimes (Restorative Justice) Act 2004 (ACT) ss 12, 14, 15, 19, 25 Crimes (Sentencing) Act 2005 (ACT) ss 7, 35, 63 Public Health Act 1997 (ACT) s 120 |
Cases Cited: | R v Fleury [2022] ACTSC 103 Cooke (a pseudonym) v The Queen [2022] ACTCA 44 R vMassey (No 1) [2020] ACTSC 256 |
Parties: | ACT DPP (Crown) Jayke Steven John Fleury (Offender) |
Representation: | Counsel E Roff (Crown) E Chen (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (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:
This matter has been remitted by the Court of Appeal on 2 September 2022 following a successful appeal on sentence by Mr Jayke Steven John Fleury. The reasons for judgment on the appeal are not yet published, but the parties agreed that the only issue determined by the Court of Appeal was a failure to exercise jurisdiction, which arose from the unavailability of a drug and alcohol rehabilitation place at the time the offender was sentenced in May 2022. The Court of Appeal held that there was nothing in the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) which precluded the Court from making a drug and alcohol treatment order if appropriate.
The matter was expressly remitted with a view to this Court re-sentencing without delay, with directions being made for the further hearing of the matter immediately following the orders pronounced by the Court of Appeal.
Primary offences for re-resentence
The offences for which the offender is to be re-sentenced were set out in R v Fleury [2022] ACTSC 103 (Fleury) 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):
(ii)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.
(iii)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.
(iv)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.
(v)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 parties agreed that apart from the issue concerning the availability of a Drug and Alcohol Treatment Order, it was appropriate to broadly adopt the remainder of the reasoning and discussion of the various sentencing considerations in Fleury, with the key focus of the hearing on remittal being the taking into account of the additional time that Mr Fleury has been incarcerated since he was first sentenced and his suitability for a Drug and Alcohol Treatment Order. Accordingly, these reasons proceed against the background of the previous sentence of imprisonment, being 3 years, 9 months and 22 days, with a non-parole period set at 23 months.
Additional offences for which the offender is being sentenced
In Fleury at [2]-[4], I recorded the following further matters that arose due to the above offending:
2.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.
3.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.
4.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.
There was no challenge to the above reasoning and conclusion on appeal and accordingly, the same approach will be taken on re-sentence. I will return to the breach of good behaviour order below.
Facts
The facts in relation to each of the Series 1, Series 2 and Series 3 offences were set out in Fleury at [5]–[28]. They were not controversial, and it is unnecessary to repeat those paragraphs here. Knowledge of those facts is assumed in the reasoning that follows.
The pleas of guilty
Similarly, there was no challenge to the discount on sentence the Court gave in respect of each of the offending.
For the Series 1 offending, a discount of 15% was given in relation to each offence having regard to the factors set out in s 35(2) of the Sentencing Act. Since the original sentence was imposed, the Court of Appeal has handed down Cooke (a pseudonym) v The Queen [2022] ACTCA 44 where it was held that in cases where s 35(4) of the Sentencing Act does not apply (that is, where the Court does not find the strength of the prosecution’s case to be “overwhelming”), the Court does not otherwise take into account a strong Crown case in applying s 35 of the Sentencing Act and exercising the discretion to apply a discount for an early plea of guilty.
In Fleury at [32], I accepted that there was an extremely strong case, but not that it was overwhelming. The strength of the case did not influence the 15% discount that was considered appropriate in respect of the Series 1 offending. Lest there be any doubt about it, I make it clear that that is the case, and I consider that the 15% discount remains appropriate having regard to the discretionary matters set out in s 35(2) of the Sentencing Act.
In Fleury at [33], a discount of 25% was considered appropriate for the Series 2 offending. For the same reasons as those set out in the initial sentence, that discount remains appropriate.
Similarly, in Fleury at [39], a discount of 20% was applied to the Series 3 offending and for the reasons that were earlier set out, that discount will be applied.
Objective Seriousness
The objective seriousness of each of the offences was discussed at length in Fleury at [40]-[61] and I similarly adopt the considerations there set out as there has been no difference to the factors affecting the objective seriousness of each of the offences.
Subjective circumstances
Again, the subjective circumstances surrounding the offending have been set out in detail in Fleury at [62]-[97]. They deal with the offender’s personal circumstances, his education, employment and financial circumstances, his living circumstances, his history of alcohol and drug use, the offender’s medical and mental health, his attitude to the offences and risk of re-offending, his criminal history and prospects of rehabilitation. I adopt the considerations and the reasoning contained in those paragraphs.
An updated Pre-Sentence Report dated 18 October 2022 has been received and its contents have been taken into account. It was more expansive than the previous report prepared on 25 January 2022. Matters that were not previously the subject of report were canvassed at the hearing, including an incident in September 2021 when the offender initially arrived at the Alexander Maconochie Centre (AMC) and was suffering from withdrawal from the effects of his drug addiction. I have generally accepted the contents of the updated report and the offender’s response to the report, which was provided to the Court by way of a written explanation. Since that time, there are a number of certificates and references provided by personnel at the AMC indicating that the offender has in general behaved in an exemplary manner.
The offender has also provided an update relevant to his subjective circumstances. Since being sentenced in May 2022, the offender has spent a further period of more than five months in custody at the AMC. His letter to the Court was lengthy. He affirmed its contents during the hearing. The Crown accepted that the letter is consistent with the offender’s previous desire to undertake drug and alcohol treatment and was relevant evidence of his current motivation.
The offender has set out in full the considerable attempts he has made to rehabilitate and improve his situation while incarcerated. In short, the offender has tried to improve all facets of his life – his educational prospects, his employment prospects, his health and his mental well-being. He has striven to maintain a connection with his partner, daughter and step-children. He has re-engaged with family members and his brother has been visiting him on a monthly basis. From the evidence before the Court, it seems he is experiencing and appreciating broader family support for the first time in a long time.
The offender has engaged in trauma counselling through Blue Knot Australia, which demonstrates increased insight and awareness of a necessity to address the past trauma that has undoubtedly impacted upon the present offending. Further, the fact that he has engaged in such counselling on a fortnightly basis of his own initiative after being sentenced is demonstrative of a genuine desire to take steps in his life to move away from a self-destructive path of addiction and crime.
Combined with this is the fact that while in prison, he has been consistently employed in positions of trust. He has been a Yard Delegate, an Activities Co-ordinator, and assisted in the kitchen where he was given the position of Leading Hand. In addition, he has been selected to undertake a Peer Mentor Training Program, which he completed on 7 October 2022. He described this as being an achievement that he was extremely proud of, as it was considered by the inmates as one of the most highly regarded positions in the AMC. He has maintained a minimum-security rating and attained an "Enhanced” status on the Incentives and Earned Privileges scheme. These are all matters worthy of commendation.
The offender is also engaging in a number of pro-social activities that speak to a desire to rehabilitate and ensure that his time spent at the AMC was as productive as it could have been in an environment that was more restricted than usual, due to measures adopted in response to managing outbreaks of the Covid-19 virus at the AMC. He has taken a leading role in a book club, and exercised daily, including boxing, jogging and weights. He has undertaken meditation and availed himself of other services offered at the AMC which were detailed in the pre-sentence report and drug and alcohol assessment suitability report. It is unnecessary to discuss them in further detail here.
The offender has separately taken part in the Shine for Kids “Storytime” program, recording himself reading children’s books and then sending both the book and recording to his daughter and stepchildren to listen and read along to.
Victim Impact
There are two matters which differ as between the first pre-sentence report in January 2022 and the updated report. The first concerns victim impact.
This consideration was raised by the authors of the updated pre-sentence report and with the author of the drug and alcohol assessment suitability report. The offender was most remorseful about his offences involving other people. He said he cannot remember his assault on the police officer (the Series 2 offending) as he was intoxicated at the time, but he now feels embarrassed by his behaviour. He also feels badly about destroying the property of his uncle’s neighbour (part of the Series 3 offending), as the man “didn’t have much” and “didn’t deserve that”.
The initial report considered that the offender was not eligible for restorative justice due to the nature of the offending. However, those two individual offences (being the assault occasioning actual bodily harm and causing damage to property) are each an offence to which the Crimes (Restorative Justice) Act 2004 (ACT) (RJ Act) applies (see ss 12 and 14). The other two offences forming part of the Series 3 offending (aggravated burglary and use offensive weapon) are serious offences, but given the offender has pleaded guilty, the RJ Act still applies (s 15). The updated pre-sentence report considered that the offender was eligible for restorative justice. The offender himself is eligible for restorative justice, pursuant to s 19(1)(b)(i)(A) of the RJ Act and, having had the procedure explained to him pursuant to s 25 of the RJ Act, he has expressed a desire to participate in the process.
In R v Loeschnauer [2022] ACTSC 30, I had occasion to deal with the situation where restorative justice had not been undertaken before sentence at [75] and [76]:
75. … The mere fact of participation in the restorative justice process may or may not, of itself, be sufficient evidence of remorse: see R v Forrest [2016] ACTSC 321 at [63]. However, s 33(1)(y) of the Sentencing Act requires the Court to take into account the acceptance of responsibility of an offender to take part in restorative justice and the participation of an offender in restorative justice is a relevant consideration independently of statute: see R v Forrest (No 2) [2017] ACTSC 83 at [154] and the cases there-cited.
76. The objective of the restorative justice process is victim-focussed. Among the objects of the RJ Act (s 6) is a desire to “enhance the rights of victims of offences by providing restorative justice as a way of empowering victims to make decisions about how to repair the harm done by offences”. As section 46 of the RJ Act provides, the process can take many forms. It does not necessarily involve a face-to-face meeting. It may involve the exchange of written or emailed statements between participants, of pre-recorded videos between participants, teleconferencing or videoconferencing.
Here, the offender has identified two individual victims who may benefit from at least an apology from an offender who is now determined to undergo formal intervention to ensure that he does not get involved in the situations that led him to do what he did again. Those individuals might also be willing participants in the restorative justice process. Although there are no victim impact statements before the Court, I consider that the restorative justice process is an appropriate means of properly taking into account a number of the sentencing purposes which are set out in s 7 of the Sentencing Act, those being to recognise the harm done to the victim of the crime and the community, to make the offender accountable for his actions, and ultimately, to promote the rehabilitation of the offender. Accordingly, it is appropriate that a referral be made. However, I will leave the conditions under which the process takes place, including the timing, to be addressed at a later date through the Drug and Alcohol Sentencing List, to ensure that it occurs at a stage that does not cut across the objectives and procedures applying to the offender under a drug and alcohol treatment order (discussed below).
Intensive Corrections Order
The second difference between the two pre-sentence reports that are before the Court is that the offender has, in the more recent report, been found suitable for an intensive corrections order. In this case, such a sentence would not reflect the gravity of the offending and for reasons given in Fleury, residential rehabilitation through a drug and alcohol treatment order is plainly the best means of attempting to protect the community in the longer term by addressing what appears to be the key driver in this offender’s criminal behaviour. However, the fact that the offender was found suitable in such an assessment is a further indicator of the changes that have occurred in the offender’s life, because the assessment takes into account whether his dependence on drugs would make him unsuitable, as well as his potential living situation, his capability of complying with such an order and other pro-social circumstances.
Breach of good behaviour order
In relation to the breach of the good behaviour order made on 26 May 2020, the following was recorded in Fleury at [101]-[105]:
Breaches of good behaviour orders (GBO) - the common assault offence
101.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 [Chief] 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.
102. 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];
(d)the nature of judicial and community resources previously devoted to the offender: see R v Bennett [2017] ACTSC 104.
103.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].
104.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].
105.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.
The same reasoning applies to the offender on re-sentence.
Drug and Alcohol Treatment Order
Overall, considering the totality of the evidence that has been tendered on remittal and placing weight on the matters I have singled out for comment above, I have been actively persuaded that the man sitting in the dock in October 2022 is a far cry from the man who committed the offences over the period July 2019 to September 2021. However, it is also quite clear that the offender has a long-standing substance abuse issue that requires intensive treatment, with the program that will give him the best opportunity of success commencing in a residential rehabilitation facility. A drug and alcohol treatment order will be made.
Taking account of time spent in custody
Since he was first arrested in relation to the offences before the Court today on 25 September 2021, Mr Fleury has spent 396 days in custody. The overall sentence will be backdated to this date, pursuant to s 63 of the Sentencing Act. However, there are complications arising in the sentencing legislation for an offender who is to be placed on a drug and alcohol treatment order, but who has served time in custody. Those complexities are best explained by Refshauge AJ in R v Crawford (No 1) [2020] ACTSC 245 at [91]-[111] (emphasis added):
91. Mr Crawford has now spent a considerable period of time in custody since his arrest, some 407 days while serving the sentence reimposed when the Intensive Correction Order was cancelled, and 110 days on remand for these offences. Such custody should be taken into account: see R v Judge Frederico; Ex parte Attorney-General (Vic) [1971] VicRp 51; [1971] VR 425 at 427, 430-1 and R v Renzella [1997] 2 VR 88 at 97.) It could not, however, at common law, be done by backdating the sentence: R v Gilbert [1975] 1 WLR 1012 at 197.
92. Now courts can rely on s 63 of the Crimes (Sentencing) Act and direct that the sentence be taken to have started on a day before the sentence was imposed. This fiction is not mandatory, but a device that a court may, in its discretion, use, that provides clarity and transparency to show exactly what has been taken into account.
93. Further, if the court so chooses to backdate the sentence, then s 63(2) of the Crimes (Sentencing) Act requires mandatorily that the period of backdating must include “any period during which the offender has already been held in custody in relation to the offence”, with some limited exceptions not presently relevant.
94. If, of course, the court backdates the sentence, the period of pre-sentence custody may be adequate to meet the requirements for the custodial part of a sentence for the particular offence. That may result in the court suspending a backdated sentence so that the offender is released on the day of sentence, even though, except notionally by the direction of backdating, the person has only spent custodial time as a remand prisoner and not as a sentenced prisoner.
95. Nevertheless, the effect is that the court has imposed a partially suspended sentence. The problem that this causes is that under ss 12A(2) and 80W(1) of the Crimes (Sentencing) Act, the court making a treatment order must fully suspend the sentence of imprisonment that it must also impose. This creates a dilemma that the court cannot backdate a sentence to take account of pre‑sentence custody and make a treatment order on the day of sentence, for it will have partially suspended the sentence, which is inconsistent with the legislation.
96. This is a similar problem that the Legislature created with the similar requirements of only wholly suspended sentences when ordering an intensive corrections order. This was pointed out by Penfold J in R v Ingram [2016] ACTSC 199, and myself in R v Ngerengere (No 3) [2017] ACTSC 299. The provision prevents a court from partially suspending a sentence of imprisonment that was backdated to take account of pre‑sentence custody. This is particularly odd since an offender likely to be suitable for an intensive corrections order, or indeed, I add, for a treatment order, is likely to have been refused bail.
97. To deny such a person that disposition, or alternatively, to ignore the pre-sentence custody, would not only be unfair, but it would not be in the community’s interests. I called for reform in R v Ngerengere (No 3), and again in R v Williams [2016] ACTSC 389 at [122] more recently, but none has been forthcoming. Indeed, more problematic is that the problem has been repeated with the treatment order regime, where an offender is only eligible for such an order if he or she is to be sentenced to imprisonment for a period of one to four years. Again, this involves an offender who is likely to have been remanded in custody.
98. I note that recent decisions in this Court have imposed an intensive corrections order where the sentence of imprisonment has been backdated: see R v Slifkas [2019] ACTSC 40 and R v Figura (No 2) [2019] ACTSC 222. It appears from the published reasons for these decisions that there was no submission made about this position, as there were no discussions of it in the published reasons. I have not investigated whether any further similar decisions have been made but it seems to me that they may risk the validity of the orders.
99. Pre-sentence custody on remand has a similarity to other matters where pre‑sentence restrictions may be taken into account. One matter that may be relevant is periods of immigration detention: see Islam v The Queen [2014] ACTCA 2 at [22], [31]. Similarly, periods of residential rehabilitation with the conditions that are imposed, or strict conditions of bail, may also be taken into account in sentencing, though rarely by backdating the sentence, but rather by moderating the period to be served.
100. This has some similarity to the taking into account of a plea of guilty which reduces the sentence. This may be done under s 35 of the Crimes (Sentencing) Act. In doing so, however, the court commonly specifies the discount applicable or the sentence that would have been imposed, as a matter of clarity and transparency. These matters are not usually dealt with by backdating a sentence, but simply by reducing the sentence, to take account of the circumstance. In this case, Mr Crawford has spent 110 days in pre-sentence custody and I need to resolve the issue, if I find that the length of the sentence makes him eligible for a treatment order, especially as all the assessment reports have recommended that he is suitable.
101. There are, perhaps, three possibilities. Where there are multiple offences, as here, then there is an obvious solution to impose a sentence that is the same length as the pre-sentence custody, on one or more of those sentences, as in R v Gotte[2019] ACTSC 219. I applied that approach in R vMassey (No 1). It must, of course, not extend beyond the date of the actual sentencing of the offender, or the offender would be subject to another sentencing order, contrary to s 12A(1)(c) of the Sentencing Act.
102. The issue with that also, however, is that if there is an associated offence, which there will be if there are multiple offences, a problem could arise. An “associated offence”, under s 12A of the Sentencing Act, is an eligible offence to which the offender pleads guilty, and for which he or she is sentenced to imprisonment, and is dealt with in the same sentencing proceedings as the primary offence: s 12A(9) of the Sentencing Act.
103. A restriction is that the total period of imprisonment for the primary offence and all the associated offences to which the order relates may not extend beyond four years. If the offence for which the pre-sentence custodial period is four years or would, if [aggregated] with a pre-sentence custodial period, amount to more than four years, then this option will not be able to be used. It may be that the sentence which imposes the period of pre‑sentence custody does not need to have the treatment order extended to it as it is, by the date of sentence, effectively spent, so the issue may not arise.
104. It also may be that the sentences for the two offences, the primary offence, and the offence for which the pre‑sentence custody period constitutes, are not made at the same hearing, as happened in R v Massey (No 1). This means that the latter is not then an associated offence. It may be that the other multiple offences for which the offender has to be sentenced can have the treatment order extended to them without breaching any statutory criteria. This seems to me quite complicated, and sounds as though it would be regarded as a device rather than a proper exercise of the sentencing discretion.
105. This Court has considered another option. In R v McCallum[2020] ACTSC 15 at [81], Murrell CJ gave consideration to the issue and held that s 12A of the Sentencing Act precluded backdating. Her Honour then simply held, at [82], that the sentence would “take account of the significant amount of prison time”, which was the pre‑sentence custody. Her Honour noted that the sentence imposed did take that time into account, but that “their terms do not reflect it”. This is clearly an approach that is consistent with the common law, as noted above.
106. Subsequently, however, Walker AJ had occasion to consider the issue in R v Parker [2020] ACTSC 38 at [25]- [33]. Her Honour was concerned with the potential unfairness flowing from the way in which pre-sentence custody would be dealt with. Her Honour noted that not to take it into account would be unfair to the offender. I note that it may also not be in accordance with the common law. Her Honour then considered that taking the pre-sentence custody into account in the common law way would have some unfair consequences. It would skew sentencing practice because such sentences would be shorter, but not often comparable to those for offenders who have not been subject to pre‑sentence custody, even though otherwise entirely comparable. That seems to me to be correct, but not a major problem, as the issue of comparability must not be limited to mere statistics, but should be considered in more detail. Hence, for example, the frequent distinction between sentences following pleas of guilty and those following pleas of not guilty but findings of guilt, are disaggregated.
107. Perhaps more significant is that such an approach may cause problems with criteria for a treatment order by the length of sentence. The offender, whose sentence would be 12 months, may thereby be denied entry to a treatment order, if the pre-sentence custody is taken into account by reducing the length of the sentence in the common law way. Similarly, an offender, where the pre-sentence custody reduces his length of imprisonment to below four years, would then have access to a treatment order, while a co-offender, who did not spend any or as much time in pre-sentence custody, may then find that the same intended sentence of imprisonment, that is, of the offender before reduction for the period of pre-sentence custody, would be longer than four years, thus rendering the co-offender ineligible for a treatment order, even though both would otherwise be equally eligible on the basis of the offender and offending.
108. As a result, her Honour held that the meaning of “fully suspended”, could be interpreted as “fully suspended from the date of imposition”: R v Parker at [33]. I was concerned about this construction because it seemed to fly in the face of a clear legislative provision where there was perhaps unfairness, but no absurdity, to the level required for such an apparent rewriting of the legislation: Grey v Pearson[1857] EngR 335; (1857) 10 ER 1216 at 1234.
109. Having considered the matter further, however, I have had occasion to consider s 63(3)(c) of the Sentencing Act. It refers to the backdating of a sentence not requiring reference to the days of pre-sentence custody where there is “a sentence of imprisonment that is fully suspended”. It is difficult to see how a sentence, which is backdated to take account of the time that has already been spent in custody, can be fully suspended. Even the function of backdating cannot convert a time in custody to a suspended period which would be served entirely in the community instead.
110. Thus, there would be an absurdity, unless the paragraph meant such a sentence be “fully suspended” from not the backdated date, but from the date of imposition. I am far from certain that this completely resolves all the difficulties in the meaning of s 63(3)(c), and I add s 63(3)(d), which is, in my view, far from clear, but at least gives some meaning to it in cases such as this. The Explanatory Statement for the Crimes (Sentencing) Bill 2005 (ACT) provides no clarity.
111. In that event, it seems to me that the same meaning should be given to “fully suspends a sentence of imprisonment” in ss 12A(2) and 80W(1) of the Sentencing Act, which is relevantly in the same terms. Accordingly, I will construe the terms in the same way as in R v Parker, though not without some considerable hesitation. I urge the Legislature to address this issue and make appropriate amendments to obtain some clarity on this issue and hope that, enjoined by Walker AJ, it will achieve some amendment. It may also be helpful if the Legislature addressed the same issue in the slightly different context of intensive corrections orders.
The passage is lengthy, but I have included it in this judgment because it is important to explain the sentencing structure that I have adopted in the orders that follow, which is different from the structure initially imposed. The passage is reflective of the court construing the legislation in a way that achieves consistency with what appears to be the legislative purpose, but is not quite satisfactory in terms of the words that actually appear in the statute. Adopting the totality considerations that I referred to in detail at Fleury, I have chosen to follow the approach taken in R vMassey (No 1) [2020] ACTSC 256. The structure of the sentence for this offender has been crafted in a way that sees a number of offences completed before the date of sentence, to take account of the time already spent by the offender in custody. The drug and alcohol treatment order will commence in respect of the three longest sentences imposed today, which, because they are not backdated, may be properly described as “fully suspended”. It would obviously be preferable if the legislation were clarified to remove the need to engage in the various sentencing gymnastics that have been referred to above.
Conclusion and Orders
For the above reasons, I make the following orders:
1. 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), to commence on 25 October 2022 and end on 24 March 2024.
2. 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 25 September 2021 and end on 11 December 2021.
3. 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 25 October 2021 and end on 24 July 2022.
4. 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 end on 30 September 2024.
5. 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 end on 16 July 2025.
6. 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 and 5 days (reduced from 9 months), to commence on 20 March 2022 and end on 24 October 2022.
7. In respect of the offence of failing to comply with public health direction (CC2021/9891), the offender is fined $400, with 18 months to pay.
8. 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 25 September 2021 and end on 24 December 2021.
9. The total term of imprisonment is 3 years, 9 months and 22 days.
Drug and Alcohol Treatment Order
34. There is no non-parole period to be set in respect of the above sentence because, having regard to requirements of s 12A(2) of the Crimes (Sentencing) Act 2005 (ACT), which are satisfied, the offender’s sentence will include a drug and alcohol treatment order, the terms of which mean that the offender will be undergoing drug rehabilitation treatment, followed by a good behaviour order.
35. In that regard, I impose the following sentence:
1.A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) is made for Mr Fleury for 2 years commencing on 25 October 2022 and ending on 24 October 2024, in respect of the primary offence of trafficking in a trafficable quantity of cannabis (CC2020/3244) of which he has been convicted and for which he has been sentenced to 17 months’ imprisonment.
2.The Order is extended to the offence of aggravated burglary (CC2021/10019), which is an associated offence of the primary offence.
3.The Order is extended to the offence of using an offensive weapon against a person likely to endanger human life or cause grievous bodily harm (CC2021/9887), which is an associated offence of the primary offence.
4.The convictions and sentences for the primary offence and associated offences are incorporated into the Order in the custodial part of the order.
5.The custodial part of the Drug and Alcohol Treatment Order for the primary and associated offences is hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, Tuesday 25 October 2022, until 16 July 2025.
6.Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), Mr Fleury is required to sign an undertaking to comply with the offender’s Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Drug and Alcohol Treatment Order, namely 25 October 2024, until the end of the total sentence, namely 16 July 2025, with a probation condition that he accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him including as to urinalysis, counselling and treatment.
7.For the treatment and supervision part of the Drug and Alcohol Treatment Order:
a. The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) are hereby imposed;
b. Mr Fleury is to travel directly from this Court today to Canberra Recovery Services and admit himself to the residential drug rehabilitation program at that facility by 3:00 pm today, Tuesday 25 October 2022.
c. Mr Fleury is directed to complete the residential drug rehabilitation program at Canberra Recovery Services, to not leave the facility until he has completed the course and to comply with all the directions of the person in charge of the program and all the rules of the program and the facility;
d. Should Mr Fleury leave or be discharged from the program before completing it, he is to report to ACT Corrective Services by 4 pm on the next business day with a view to having his Drug and Alcohol Treatment Order reviewed.
e. Mr Fleury is to undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where he resides, with whom he associates and his attendance from time to time; and
f. Mr Fleury is to comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.
8.Mr Fleury is directed to appear by electronic means in Court on Friday 28 October 2022 (or the next appropriate Friday listing).
9.Mr Fleury is directed to attend the Court Registry before he leaves the Court precincts to sign a sealed copy of this Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this Order is in force.
10.I direct that written notice of the Order, together with a copy of the Order, is to be given to the offender.
| I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice McWilliam. Associate: Aislinn Grimley Date: 25 October 2022 |
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