R v Folauhola (No 2)

[2024] ACTSC 87

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Folauhola (No 2)

Citation: 

[2024] ACTSC 87

Hearing Date: 

2 April 2024

Decision Date: 

2 April 2024

Reasons Date:

Before:

4 April 2024

McWilliam J

Decision: 

(1)    In respect of the intensive correction order imposed on 16 December 2020, the Court notes the breach and makes no order.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – breach of intensive correction order – where breach was relatively less serious and majority of term had been served without incident – not in the interests of justice to cancel the intensive correction order

Legislation Cited: 

Crimes Act 1900 (ACT) s 25

Crimes (Sentence Administration) Act2005 (ACT) ss 42(1)(a)(i), 65, 65(2), 65(2)(a), 65(4), 65(7), 79

Crimes (Sentencing) Act 2005 (ACT) s 17

Criminal Code 2002 (ACT) ss 308, 312

Road Transport (Driver Licensing) Act 1999 (ACT) ss 32(2)(a), 32(9)

Cases Cited: 

R v Dimitrov (No 2) [2020] ACTSC 54

R v DU (No 5) [2022] ACTSC 172

R v Folauhola [2020] ACTSC 341

R v Gunner (No 2) [2021] ACTSC 300

R v Hanson (No 2) [2023] ACTSC 158

R v Kemppainen (No 3) [2023] ACTSC 323

R v XXL [2022] ACTSC 24

Parties: 

Director of Public Prosecutions (Prosecution)

Atunaisa Folauhola (Offender)

Representation: 

Counsel

T Kelliher ( Prosecution)

T Taylor ( Offender)

Solicitors

ACT Director of Public Prosecutions ( Prosecution)

Hugo Law Group ( Offender)

File Number:

SCC 81 of 2020

McWILLIAM J:          

1․On 2 April 2024, Atunaisa Folauhola, the offender, came before the Court in respect of a breach of an intensive correction order (ICO), which was imposed in respect of a sentence of imprisonment of 3 years by Elkaim J on 16 December 2020: R v Folauhola [2020] ACTSC 341 (initial sentence).

2․Following the hearing, I noted the breach and made no order in respect of the ICO. Where the Court does not consider that a cancellation of the ICO under s 65(2) of the Crimes (Sentence Administration) Act2005 (ACT) (CSA Act) is in the interests of justice, reasons must be given: s 65(7) of the CSA Act.  These are the reasons.

The initial sentence

3․The initial sentence imposed was in respect of the following three offences:

(a)Aggravated burglary with intent to commit an offence and in company with another person (CC 2020/1426), contrary to s 312 of the Criminal Code 2002 (ACT) (Criminal Code), for which the offender was sentenced to 2 years’ imprisonment commencing on 16 December 2020 and ending on 15 December 2022;

(b)Occasioning grievous bodily harm (SCCAN 2020/124), contrary to s 25 of the Crimes Act 1900 (ACT), for which the offender was sentenced to 2 years’ imprisonment commencing on 16 December 2021 and ending on 15 December 2023; and

(c)Theft (CC 2020/1427), contrary to s 308 of the Criminal Code, for which the offender was sentenced to 6 months’ imprisonment commencing on 16 December 2020 and ending on 15 June 2021.

4․The term of the ICO to be served in respect of the overall sentence was 3 years, commencing on 16 December 2020 and concluding on 15 December 2023.

The Breach

5․On 27 January 2023, almost one year before the term expired, the offender committed a further offence of driving a motor vehicle during a period of suspension of his driver’s licence (CC 2023/1831) (the further offence), contrary to s 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) (Licensing Act). The offender was a repeat offender as defined under s 32(9) of the Licensing Act.  Accordingly, the offence carried a maximum penalty of 100 penalty units, imprisonment for 1 year, or both.

6․The offender originally pleaded not guilty to the further offence on 11 July 2023. The matter was listed for hearing on 10 November 2023. However, the offender ultimately pleaded guilty on that day in the Magistrates Court and was sentenced immediately, with the sentencing magistrate entering a non-conviction order pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT).

The consequences of the breach

7․Due to the fact that the further offence was one where a period of imprisonment could have been imposed, the offender was in breach the core conditions imposed as part of the ICO (see s 42(1)(a)(i) of the CSA Act). 

8․Accordingly, on 16 November 2023, the matter was committed to this Court, as the sentencing court who originally imposed the ICO, pursuant to s 65(4) of the CSA Act. The relevant parts of s 65 of the CSA Act are set out as follows (emphasis added):

65Cancellation of intensive correction order on further conviction etc

(1)This section applies if, after an offender was sentenced to serve intensive correction, the offender commits, and is convicted or found guilty of—

(a)an offence against a territory law, or a law of the Commonwealth, a State or another Territory, that is punishable by imprisonment; or

(b)an offence outside Australia … .

(2)The sentencing court must, as soon as practicable—

(a)cancel the intensive correction order, unless cancellation is not in the interests of justice; and

(b)if the court cancels the intensive correction order—order that the remainder of the offender’s sentence be served by full‑time detention.

(3)…

(4)If the offender is convicted or found guilty of an offence mentioned in subsection (1) by the Magistrates Court and the intensive correction order was made or amended or amended by the Supreme Court –

(a)The Supreme Court is taken to be the sentencing court for this section; and

(b)the Magistrates Court –

(i)   must, in addition to dealing with the offender for the offence mentioned in subsection (1), commit the offender to the Supreme Court to be dealt with in accordance with subsection (2); and

(ii)     may remand the offender in custody until the offender can be brought before the Supreme Court.

Note    …

(5)    If the court makes an order under subsection (2) (b), the court—

(a)must state when the period of full‑time detention starts and ends; and

(b)may set a nonparole period for the period of full-time detention if—

(i)   the sentence of imprisonment for which the intensive correction order was made is more than 12 months; and

(ii)     the period of full-time detention is more than 30 days.

Note     …

(6)    …

(7)If the court decides that it is not in the interests of justice to cancel the intensive correction order, the court must give reasons for the decision.

(8)…

Issue for determination

9․The issue for determination is thus whether to cancel the ICO and order that the remainder of the offender’s sentence be served by full-time detention. As can be seen from the mandatory language of s 65(2) of the CSA Act, the Court must cancel the ICO unless cancellation is not in the interests of justice. Section 79 of the CSA Act allows the Court to determine this issue, notwithstanding that the term of the ICO has now ended or expired.

Is it in the interests of justice to cancel the ICO?

10․A number of considerations relevant to forming a view about where the interests of justice lie were set out in helpful written submissions advanced by the prosecution.  Circumstances that may inform a Court’s decision that the interests of justice are not served by cancelling an ICO include the following non-exhaustive list:

(a)Where the term of the ICO has ended by the time the offender becomes liable to be dealt with for the breach, following a finding of guilt: R v Dimitrov (No 2) [2020] ACTSC 54 at [13], [17]-[21]; R v Gunner (No 2) [2021] ACTSC 300 (Gunner) at [4]-[5]; R v XXL [2022] ACTSC 24 (XXL) at [37]-[38]; R v Kemppainen (No 3) [2023] ACTSC 323 (Kemppainen) at [10].

(b)Where the cancellation would interfere with rehabilitation: R v DU (No 5) [2022] ACTSC 172 (DU) at [26]; Gunner at [8].

(c)Where there has been a subsequent period of incarceration, with the consequence that the offender appreciated the gravity of supervision obligations attaching to an ICO and there was an evident change in attitude to compliance: R v Hanson (No 2) [2023] ACTSC 158 at [17]-[21].

(d)Where there may be disproportionate hardship on third parties caused by the imposition of full-time imprisonment: DU at [20]-[21].

The present circumstances

11․The parties were not in dispute that in the present circumstances, it would not be in the interests of justice to cancel the ICO.  Those circumstances include the following:

(a)By the time the offender was found guilty on 10 November 2023 (following his plea) of the further offence, there was only a matter of weeks remaining before the term of the ICO expired on 15 December 2023.  The “remainder” of the offender’s sentence was thus short.  

(b)A significant proportion of the ICO had been served without incident, with the further offence being committed more than 2 years after the commencement of the ICO.

(c)The further offence was of a wholly different nature to the offences the subject of the initial sentence (as opposed to circumstances where a similarity in the breach would weigh in favour of cancellation).

(d)The non-conviction order imposed in respect of the further offence indicates that there were cogent or compelling circumstances warranting leniency toward the offender, including that the offence giving rise to the breach arose out of the non-payment of a fine and was of significantly less severity.

12․Having regard to those matters, I agree that it is not in the interests of justice to cancel the ICO and impose the “remainder of the offender’s sentence”, being the language of s 65(2)(a) of the CSA Act.  Those words have been interpreted to mean the date when there is a judicial determination of guilt of the breach offence, not the date the offence was committed: see XXL at [35]; Kemppainen at [8]-[9]. Here, there have been lengthy periods of time spent in the community that were incident free in terms of conduct constituting a breach of the ICO, both before and after the breach occurred. To send the offender to full-time custody for a period of 5 weeks now would serve little to no utility in terms of any sentencing objective to be achieved. The formal recording of the denouncement of the breach in a judgment is sufficient in the circumstances, which otherwise weigh decisively in favour of a conclusion that it is not in the interests of justice to notionally cancel the ICO and then impose a short period of full-time custody.

13․For completeness and noting that there has previously been some ambiguity calling for interpretation of the words of s 65(2)(a), I may have reached the same conclusion even if the remaining term of the sentence had been calculated by reference to the date of the breach, as opposed to the date the offender was found guilty of the breach. Even so, I have some disquiet about what occurred in this case before the proceeding was committed purely for a consideration of the application of s 65(2) of the CSA Act.  In XXL at [37], Mossop J noted the:

… undesirable incentive for accused persons to delay their plea of guilty to a subsequent offence until after the expiry of the current ICO.  By so doing, they would preclude the court from imposing any remainder as full-time detention.

14․His Honour described this as a “perverse” incentive.  Without being critical in any way of the offender or his legal representatives in the forensic or strategic choices made, the present case may well be an example of that incentive at work. The plea of not guilty resulted in an effluxion of time in the matter progressing to a final hearing in the Magistrates Court, where the offender then pleaded guilty.  That period of time was significant, as it amounted to almost the entirety of the term that was left to serve in respect of the ICO.

15․It may be that what was intended by way of enforcement of the ICO was for the “remainder of the offender’s sentence” to be calculated by reference to the period that was outstanding as at the date the breach first occurred, even if the offender does not become liable to cancellation of the ICO until a later judicial determination of the guilt of such offence.  However, as explained by Mossop J in XXL at [35]-[37], the words of the CSA Act do not clearly reflect that intention and it remains a matter for the legislature to address.

Orders

16․For the reasons above, the appropriate course was simply to note the breach and make no order in respect of the intensive correction order imposed on 16 December 2020.

I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam.

Associate:

Date: