Legal Research
Cases
R v Fleury (No 2)

R v Fleury (No 2)

Case [2022] ACTSC 293 25 October 2022

Possession of Prohibited Weapon

Assault

Use of Offensive Weapon

Damage to Property

Failure to Comply with Public Health Direction

Criminal Law

Type to search within this case.

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 Crimes Act 1900 (ACT) ss 24, 27, 116 Criminal Code 2002 (ACT) ss 312, 603 Prohibited Weapons Act 1996 (ACT) s 5 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 v Loeschnauer [2022] ACTSC 30 R v Crawford (No 1) [2020] ACTSC 245 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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Fleury (No 2)

Details

AGLC: R v Fleury (No 2) [2022] ACTSC 293
Case: [2022] ACTSC 293
Decision Date: 25 October 2022

CaseChat Overview and Summary

The case before the court involved an appeal by the respondent against his sentence. The respondent was found guilty of trafficking in cannabis, possession of a prohibited weapon, assault occasioning actual bodily harm with an offensive weapon, causing damage to property, and failing to comply with a public health direction. These offences occurred despite the respondent being subject to good behaviour orders. The appeal was heard by the Supreme Court of New South Wales.

The central legal issues before the court were whether the sentence imposed was appropriate in the circumstances, and whether a Drug and Alcohol Treatment Order would be suitable for the respondent. The court needed to consider the nature and severity of the respondent's offences, his criminal history, and his potential for rehabilitation.

In delivering the judgment, the court considered the respondent's extensive criminal history and the serious nature of the current offences, which occurred despite being on good behaviour orders. The court emphasised the need for the sentence to reflect the gravity of the crimes and to act as a deterrent. The court found that a custodial sentence was necessary to protect the community and to deter the respondent from future criminal conduct. Additionally, the court determined that a Drug and Alcohol Treatment Order was not appropriate given the respondent's history of failing to comply with such orders in the past.

The court ordered that the respondent be sentenced to imprisonment, with specific details of the sentence provided in the judgment. The court also made orders regarding the enforcement of the sentence and any related legal matters.

Orders

Orders of the court

See [33] and [35]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Fleury (No 2) [2022] ACTSC 293

Most Recent Citation

Director of Public Prosecutions v Matas [2024] ACTSC 234

Cases citing this decision · 1 of 1 shown

Director of Public Prosecutions v Matas
[2024] ACTSC 234

…2001] NSWCCA 436; 125 A Crim R 551 R v Engert (1995) 84 A Crim R 67 R v Finau (No 2) [2020] ACTSC 193 R v Fleury [2022] ACTSC 103 R v Fleury (No 2) [2022] ACTSC 293 R v GG [2017] ACTSC 137 R v Hancock [2021] ACTSC 52 R v Harrington [2016] ACTCA 10; 11 ACTLR 215 R v Hudson [2019] ACTSC 110 R v Hutchinson [2018] NSWC…

View all 1 citing cases →

Cases cited in this decision · 26 of 26 shown

The Queen v PM (No 2)
[2015] ACTSC 358 Para 20

…evel 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.…
Cooke (a pseudonym) v The Queen
[2022] ACTCA 44 Para 1

…t 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 prosec…
R v Fleury
[2022] ACTSC 103 Para 1

…The offences for which the offender is to be re-sentenced were set out in R v Fleury [2022] ACTSC 103 ( Fleury ) as follows:…
R v Loeschnauer
[2022] ACTSC 30 Para 1

…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]:…
Thurlow v The Queen
[2021] VSCA 71

…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…
R v Crawford (No 1)
[2020] ACTSC 245 Para 1

…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):…
R v Massey (No 1)
[2020] ACTSC 256 Para 1

…tatute. Adopting the totality considerations that I referred to in detail at Fleury , I have chosen to follow the approach taken in R v Massey (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 t…
R v Parker
[2020] ACTSC 38 Para 25

…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…
R v McCallum
[2020] ACTSC 15 Para 81

…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 senten…
R v Stacker
[2019] ACTSC 219

…ous 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 v Massey (No 1) . It must, of course, not extend beyond the date of the actual sentencing of the offender, or the offender would be…
R v Figura (No 2)
[2019] ACTSC 222

…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 pub…
R v McMahon (No 2)
[2017] ACTSC 299

…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 pa…
R v Forrest (No 2)
[2017] ACTSC 83 Para 154

…ve 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…
R v Bennett
[2017] ACTSC 104

…en 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.…
R v Beniamini (No 2)
[2017] ACTSC 32 Para 52

…rt’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 h…
R v Forrest
[2016] ACTSC 321 Para 63

…. … 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…
R v Ingram
[2016] ACTSC 199

…r 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 backdat…
R v Ogilvie (No 2)
[2016] ACTSC 265 Para 30

…e 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 Gu…
R v Buckman
[2016] QCA 176

…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 […
R v Curtis (No 2)
[2016] ACTSC 34 Para 18

…cision 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:…
Islam v The Queen
[2014] ACTCA 2 Para 22

…ntence 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 accoun…
Guy v Anderson
[2013] ACTSC 5

…0(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…
Saga v Reid
[2010] ACTSC 59 Para 36

…n (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].…
R v Slifkas
[2019] ACTSC 40

…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 the…
[1975] 1 WLR 1012
[1975] 1 WLR 1012

…1] 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 sent…
Gray v Pearson
(1857) 10 ER 1216

…ity, 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 refere…

Legislation cited in this decision · 6

Crimes (Restorative Justice) Act 2004 (ACT)
12, 14, 15, 19, 25 6 mentions (from Para 1)
Crimes (Sentencing) Act 2005 (ACT)
35, 63, 7 4 mentions (from Para 1)
Crimes Act 1900 (ACT)
116, 24, 27 4 mentions
Prohibited Weapons Act 1996 (ACT)
5 2 mentions
Public Health Act 1997 (TAS)
120 2 mentions
Crimes (Sentence Administration) Act 2005 (ACT)
1 mention