R v Fry (No 2)
[2022] ACTSC 389
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Fry (No 2) |
Citation: | [2022] ACTSC 389 |
Hearing Dates: | 28 July 2022, 10 August 2022 |
DecisionDate: | 19 September 2022 |
Before: | Refshauge AJ |
Decision: | (1) The Drug and Alcohol Treatment Order made on 12 January 2021 and amended on 5 February 2021, 17 December 2021, 22 April 2022, 6 May 2022 and 13 May 2022 be cancelled. (2) Douglas John Fry’s conviction for forcible confinement is confirmed. Douglas John Fry be sentenced to one year and 10 months imprisonment, commencing on 9 November 2021 and expiring on 8 September 2023. (3) Douglas John Fry’s conviction for assault occasioning actual bodily harm is confirmed. Douglas John Fry be sentenced to seven months imprisonment, commencing from 9 July 2023 and expiring on 8 February 2024. (4) Douglas John Fry’s conviction for dishonestly driving a motor vehicle without the owner's consent is confirmed. Douglas John Fry be sentenced to six months imprisonment, commencing on 9 January 2024 and expiring on 8 July 2024. (5) Douglas John Fry’s conviction for possessing a drug of dependence is confirmed. Douglas John Fry be sentenced to one month imprisonment, commencing on 9 June 2024 and expiring on 8 July 2024. (6) That is an overall sentence of two years and eight months imprisonment, commencing on 9 November 2021. A non-parole period of 16 months is set, to commence on 9 November 2021 and end on 8 March 2023. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – forcible confinement – assault occasioning actual bodily harm – dishonestly driving a motor vehicle without consent – possessing a drug of dependence – cancellation of Drug and Alcohol Treatment Order – re-sentencing – taking into account time in custody – taking into account time in residential rehabilitation – sentence of imprisonment |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 12A, 63, 80O, 80Z, 80ZB, 80ZE |
Cases Cited: | Akoka v The Queen [2017] VSCA 214 Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 PR v The Queen [2014] ACTCA 40 R v Antonovic (No 3) [2021] ACTSC 338 R v Crawford (No 3) [2020] ACTSC 369 R v Elphick (No 2) [2015] ACTSC 23 R v Tonna (No 2) [2020] ACTSC 362 R v Massey (No 4) [2021] ACTSC 211 R v Po'oi (No 4) [2022] ACTSC 198R v Fry [2021] ACTSC 138 |
Texts Cited: | Behaviour contract protocol – sanctions and incentives (ACT Supreme Court, undated) King, Michael, Solution-Focused Judging Bench Book (Australasian Institute of Judicial Administration Incorporated, 2009) |
Parties: | ACT Director of Public Prosecutions ( Crown) Douglas John Fry ( Offender) |
Representation: | Counsel S Whitfield (28 July 2022, 10 August 2022), C Wanigaratne (19 September 2022) ( Crown) C Duffy ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) | |
File Numbers: | SCC 249 of 2020 SCC 250 of 2020 |
REFSHAUGE AJ:
Introduction
The growing awareness of drug dependence being a health problem, as well as one for the criminal justice system, has led to creative ways to address those whose dependence on alcohol or other drugs has substantially contributed to their criminal behaviour.
Thus, drug and alcohol courts have continued the expansion of options for sentencing from what, for many years, were the only real forms of sentencing, namely fines and imprisonment: Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 at 302; [1]. These courts made provision for significant therapeutic intervention.
Such courts were first established in the United States of America and then extended much more widely, including widely in Australia. See R v Antonovic (No 3) [2021] ACTSC 338 at [1]-[4].
In this Territory, the provision was somewhat different: the process was not by establishing a separate court, but a sentencing option within the ACT Supreme Court, rather than, as elsewhere, in an inferior court. The creation, therefore, had to be somewhat a new project, though much learning was taken from the legislation and practice of various drug courts or drug and alcohol courts elsewhere in Australia.
The creation was the Drug and Alcohol Sentencing List (List) of the Court and where the Court administers the Drug and Alcohol Treatment Order (Treatment Order), made under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
The Treatment Order is a way in which a sentence of imprisonment imposed for between 12 months and four years can be served. It is intended for those offenders who have a dependence on alcohol or illicit drugs and whose dependence has substantially contributed to the commission of the offences for which they have been sentenced.
The program of the Treatment Order is directed towards abstinence. It recognises, however, that drug dependence is a pernicious addiction which is not easily resolved and that just saying “No” is not the answer. Thus, whilst sanctions are imposed for drug use while a participant is under the program, the Treatment Order will not be cancelled simply on any use of alcohol or other drugs, though clearly there must be progress made by the participant in becoming abstinent. This will guide the approach to addressing such use.
The program is divided into three phases. Phase 1 is stabilisation, where the participant engages in intensive therapeutic programs with judicial supervision frequently, and in a number of cases is in residential drug rehabilitation. Phase 2 is consolidation, where the participant is expected to have completed the intensive therapy but is supported to maintain abstinence and so be able to comply with less demanding obligations of counselling, case management and drug testing and start to be able to re‑engage with the post Treatment Order activities more freely. There is still judicial supervision but less frequent. Phase 3 is re-integration, where the level of supervision is substantially less and significant efforts are made to help the participants re-engage with a drug and crime free lifestyle, so that they can transition into the community with as little risk or wish for recidivism as possible. Again, judicial supervision is less frequent.
Some of the provisions creating the sentencing option have caused challenges in practice. One of those is the requirement that, when the Court imposes a sanction for non-compliance with the Treatment Order, it is limited to imposing a maximum of 14 days imprisonment: s 80ZB(1)(e) of the Sentencing Act : R v Tonna (No 2) [2020] ACTSC 362 at [66]-[68].
The consequence is that, if the Treatment Order requires an offender to undergo residential rehabilitation treatment and the treatment in the community is not appropriate but, for example, no placement in a facility providing such treatment is currently available for the participant's admission to it, even if it may become available, the Treatment Order must be cancelled if there is no such admission within the 14-day period.
It would be quite problematic if, while a participant may still be a good candidate for rehabilitation under a Treatment Order, perhaps in a more intensive and perhaps more restrictive facility, there cannot be any adjournment beyond the 14 days to await a suitable placement. This can be problematic, too, if the practice of the Court were to suggest by its response that, if a participant needing residential drug rehabilitation breaches the rules of that facility and is discharged, he or she can simply be released to continue under a less intensive and less restrictive program in the community, especially where, on professional advice, this is contraindicated.
This is not the only reason why a Treatment Order may need to be cancelled. The various reasons are set out in s 80ZE(1) of the Sentencing Act.
Douglas Fry was, on 12 January 2021, sentenced to three years and one month imprisonment to be served by a Treatment Order. An application has now been made to cancel that Order.
Background
The facts of the offences for which Mr Fry was sentenced are described in R v Fry [2021] ACTSC 138 at [6]-[22], but may be summarised as follows.
Sometime between 20 February and 20 April 2020, Mr Fry drove a motor vehicle which had been stolen from a motor vehicle hire company at the Canberra Airport. When police interviewed him while he was washing the car, they searched the motor vehicle and found 0.4 grams of methamphetamine in a clipseal bag.
Despite this, no proceedings were commenced for these offences until 5 August 2020.
Later, on 28 April 2020, Mr Fry threatened his then partner, became aggressive and hit her in the head several times. He then demanded her car keys as he said he was going to take their car, despite her needing it. He grabbed her arm, pulling her hand backwards, causing her significant pain such as to make her ask him to desist.
Later, on 3 May 2020, Mr Fry engaged in another altercation with his partner. It resulted in him yelling at her to get in their car, which she did, and driving away, during which time he punched her in the head several times. He drove out towards Sutton in New South Wales including, at one time, in a terrifying way. He smashed her mobile phone and punched her, again, in the head, continuing to drive in a dangerous way. He refused to let her out of the car. Finally, she persuaded him that they could stay in a motel and she agreed to arrange the accommodation, using this as an opportunity to leave.
Mr Fry was arrested on 27 May 2020 and, after some adjournments during which the earlier offences were then preferred, he pleaded guilty to all of the charges and was committed to this Court.
The offences to which he pleaded guilty were offences of dishonestly driving a motor vehicle without the owner's consent, possession of a drug of dependence, namely methamphetamine, assault occasioning actual bodily harm and forcible confinement.
He was sentenced to a total sentence of three years and one month, and, as noted above (at [13]), a Treatment Order was made on 12 January 2021. It was made for 12 months, but later extended by nine months. He was required to complete a 13-week drug rehabilitation day program at the rehabilitation facility conducted by Canberra Recovery Services.
Initially he seemed to be doing reasonably well, but by 26 February 2021 he had accrued sanctions of eight points through three occasions of drug use and other matters. These sanctions are explained in R v Crawford (No 3) [2020] ACTSC 369 at [28]. A point represents one day in custody, but custody does not usually have to be served until seven points are accrued. Points can be removed by good behaviour. Because of his general good compliance, he was not required to serve the eight days in custody he had then accrued. He later intervened in an attack at the hospital when he was there and points were removed the next week.
Unfortunately, Mr Fry's participation in the program was patchy. He was remanded in custody for eight days on 6 May 2021, as, among other things, he had failed to attend some programs and continued to use drugs. He returned positive urinalysis to drugs on various occasions, including cocaine, methamphetamine and amphetamine, on 22, 25, 27 and 29 January 2021, 13 August 2021, 24 October 2021, 15, 16, and 18 March 2022, 9 and 25 May 2022, 1 June 2022 and 4 and 6 July, and 13 July 2022. He also overdosed on prescription medication on 6 April 2022 and, before going to hospital, used methamphetamine.
He was remanded in custody as well on various occasions, including 6 May 2021, 4 January 2022, 25 January 22, 8 April 2022, 3 June 2022 and, finally, 15 July 2022.
Mr Fry did face challenges during his period serving his sentence by the Treatment Order, in addition to the challenges that drug dependent people normally face when trying to become abstinent. He appears to have been bullied by some other residents in the residential drug rehabilitation facility, but also acted aggressively on occasion to other residents. He had some mental health challenges and spent some time in the Adult Mental Health Unit of Canberra Health Services.
Despite this, he was able, from time to time, to show sufficient progress to reduce the sanction points that he had accrued. For example, there were occasions when he was complimented for providing support to another resident. He also threw himself into work for the Salvation Army, both at the store next door to the facility and participating well in the Salvation Army Hub in Braddon and participated in a Fyshwick revegetation project. He also collected money for the Salvation Army, amassing over $4,000 in cash.
Finally, Mr Fry's participation in the Canberra Recovery Services facility was terminated. He had to remove his property, but found that his room had been “trashed”. He was permitted instead to live with his former partner until other appropriate accommodation could be secured.
That was finally available at Samaritan House, a 13-bed crisis accommodation facility for men aged between 18 and 64 years operated by the St Vincent de Paul Society.
He found this a challenge and the accommodation was not as good as could be expected, but he persisted. He was, on 3 June 2022, sent to custody for seven days and the facility generously agreed to hold his placement for when he was released on 10 June 2022.
His compliance with the requirements imposed on 10 June 2022 was initially inadequate but improved the next week. His counsellor gave him a good report on 4 July 2022, describing him as “prompt, engaged and had courage to work on trauma memory”, and as having reported a “boost to [his] mood”. Nevertheless, he was still returning urinalysis showing positive results for drug use, methamphetamine and amphetamines. This overshadowed his otherwise positive steps.
In the end, as efforts were made to accommodate his problems while subject to the Treatment Order, it had to be amended on many occasions, namely 5 February 2021, 17 December 2021, 22 April 2022, 6 May 2022 and 13 May 2022. As can be seen, the challenges became more problematic this year as matters seemed to spiral a little out of control.
Ultimately however, his continued drug use meant that he was not able to progress beyond the first phase of the program usually described as stabilisation, but perhaps, in fact, being intense treatment, which is the prelude to Phase 2, where the treatment is less intense but there is still significant interaction to ensure that the transition to less intensive participation does not include relapse. Regrettably, Mr Fry was never, in his approximately 18 months subject to the Treatment Order, able to progress beyond the first Phase. Mr Fry admitted that, indeed, his drug use was more recently escalating.
Accordingly, on 28 July 2022, the Treatment Order was cancelled.
Mr Fry sought an adjournment to explore alternative options for rehabilitation. He applied to the program conducted by the drug rehabilitation agency, We Help Ourselves, usually known as WHOS, at their Goulburn facility. The Court was advised on 2 September 2022 that he had not been accepted there.
The application
The Crown's application was for the Treatment Order to be cancelled. The Crown relied on the following grounds; from s 80ZE(1) of the Sentencing Act:
(a)Mr Fry is unwilling or unlikely to comply with the condition of the Treatment Order: s 80ZE(1)(c);
(b)The continuation of the Treatment and Supervision Part of the Treatment Order will not achieve the objects of the Order: s 80ZE(1)(d); and
(c)Mr Fry poses an unacceptable risk to the safety or welfare of a person: s 80ZE(1)(f).
The Crown relied on the Treatment Order and its subsequent amendments, the material tendered in the original sentencing hearing (see R v Fry at [3]-[4]) and all of the Status Reports provided to the Court, as to which see R v Winters (No 2) [2022] ACTSC 378 at [12]-[13]. No additional material was tendered for Mr Fry, but he did, however, make a statement to the Court in which he thanked those who had assisted him and apologised for not living up to expectations. He explained “I have more issues than what I realised that I had.” He also committed to “keep working on” his counselling, therapy and rehabilitation.
The approach that should be taken to such applications has been considered by this Court on a number of occasions. In R v Massey (No 4) [2021] ACTSC 211 at [19]-[21] the Court said:
19.The approach to the application is as follows. One ground is sufficient to require the Court to consider cancelling the Treatment Order, but each ground should be considered. A ground must be proved on the balance of probabilities. Even if one ground is, or more, or all, of the grounds are, made out, the Court is not obliged to cancel the Treatment Order and retains a discretion. The Court should also consider whether it is appropriate to review the Treatment Order under s 80ZH of the Sentencing Act at the same time and, in particular, to decide whether an appropriate amendment to the Order under s 80ZH(4) of the Sentencing Act can be made that would adequately address the unsatisfactory circumstances.
20.Even if there is an appropriate amendment that could be made, such as admission to another residential drug rehabilitation facility, there may not be the resources available to give effect to the amendment and s 80S(c) of the Sentencing Act would justify a cancellation of the Treatment Order in that case: R v Tonna (No 2) at [70]-[73].
21.At the end of this consideration, the Court retains a discretion whether to cancel the Treatment Order. That a participant has performed unsatisfactorily does not mean that this behaviour will necessarily continue. Thus, where the grounds have been made out, but there is still some reasonable hope, based on a rational assessment of the situation, that the offender will rehabilitate, the Court may decline to cancel the Treatment Order and give the participant a further chance to complete it. Such further chances, however, must be based on a careful analysis of the facts and circumstances: see R v Tonna (No 2) at [36]-[39]; [70]-[73], R v Crawford (No 3) [2020] ACTSC 369 at [27]-[29]. In the absence of such a basis for continuation, it is almost inevitable that the Treatment Order will be cancelled: see R v Crawford (No 4) [2021] ACTSC 209.
This is the approach that was taken to the application.
Consideration
Each ground will be considered in turn. These grounds have also been considered in earlier cases and that jurisprudence will, as appropriate, be applied.
The first ground addresses the conditions of the Treatment Order. Under s 80Z(2)(g) of the Sentencing Act the condition that may be imposed in a Treatment Order is that Mr Fry, “not return a positive sample under alcohol and drug testing”. This is a primary failing of Mr Fry on which the Crown relied.
While a general direction to this effect was given to all participants in the Treatment Order program, no such condition in the Treatment Order was included for Mr Fry in the Order actually made by the Court.
The Crown submitted that Mr Fry was:
...required to complete a program of treatment in relation to alcohol and drug dependency and must comply 15 with any other condition imposed by the court pursuant to section 80Z of the Crime (Sentencing) Act. Further, the respondent is required to submit to alcohol and drug testing and, further, required not to provide positive samples under the alcohol and drug testing regime.
Mr Fry was required to undertake the Canberra Recovery Services program, initially the 13-week program, and obey the rules of the program. The Court is aware that this program requires participants to submit to drug and alcohol testing. There is no direct evidence of whether the facility has other conditions, such as that in s 80Z(2)(g) of the Sentencing Act.
It appears appropriate that the Treatment Order condition to complete the rehabilitation program and obey all directions of the person in charge of the program would require him not to submit a positive drug and alcohol test, but the link is not expressed in the material before the Court, especially as s 80Z(2) of the Sentencing Act expressly makes the two conditions, to submit to testing and not to return a positive sample, two separate conditions.
The program of a Treatment Order is an abstinence-based program. That is, of course, somewhat controversial. See Michael King, Solution-Focused Judging Bench Book (Australasian Institute of Judicial Administration Incorporated, 2009) at 68. Nevertheless, much of the material associated with the program, such as the Behaviour contract protocol – sanctions and incentives (ACT Supreme Court, undated) would suggest that it is a requirement of the program, as it expressly provides for sanctions for positive urinalysis. Thus, contrary to the basis alleged to show Mr Fry was unable or unwilling to comply with conditions of the Treatment Order, the statutory requirement in this ground is not made out. The requirement not to return a positive result on urinalysis was not a condition of the Treatment Order with which Mr Fry was required to be willing and able to comply.
On the other hand, the Treatment Order of 12 January 2021, including the amendments of 5 February 2021 and 17 December 2021, required Mr Fry to undertake the Canberra Recovery Services program, from which he was discharged. Nevertheless, on 22 April 2021 he was permitted to live in the community and attend the Canberra Recovery Services day program and there is no evidence to what, if any, testing requirements there were for that program.
It is further to be noted that the Treatment Order did not have a general condition for Mr Fry to comply with directions of the Court or the Treatment Order Team, now a common requirement, that related to programs and other matters such as urinalysis. The Court cannot be satisfied that a condition of the Treatment Order, as opposed to other provisions, has been breached and Mr Fry is unwilling or unable to comply with a condition of the Treatment Order.
As to ground 2, the Crown submits that the continuation of the Treatment and Supervision Part of the Treatment Order made for Mr Fry will not achieve the objects of the Treatment Order. Such objects are set out in s 80O of the Sentencing Act. Relevantly, they include the following:
(a)facilitate the rehabilitation of the offender by providing a judicially supervised, therapeutically oriented and integrated treatment regime; and
(b)reduce the offender’s dependency on alcohol or a controlled drug; and
(c)reduce the health risks associated with the offender’s dependency on alcohol or controlled drugs; and
(d)assist with the offender’s integration into the community.
Mr Fry's conduct under the Treatment Order does seem to be in conflict with a number of these objectives. In the first place, Mr Fry has not progressed through the stages of the program. He is still in Phase 1. Ordinarily, Phase 1 is expected to be completed in about four to five months, not the 18 months in which Mr Fry has been under that Phase. Indeed, it is expected that the three Phases can be completed within 12 months, though many do take longer, but rarely more than two years.
Even were Mr Fry to have graduated to Phase 2 when the Treatment Order was cancelled, which he could not have done because of his behaviour under the Order to that point, he would not have been able to graduate through the program by the end of his Order. Of course, the Treatment and Supervision part could be further extended to the end of his order, that is the whole of the sentence, namely 26 October 2023, but his rate of progress and his continual drug use gave no confidence that even that could be effective. Thus, objective (a), as set out above, does not seem achievable.
In addition, Mr Fry was required as a condition of his Treatment Order to engage in a program relating to domestic violence. He was first referred to EveryMan, which provides services to men, including providing tools and support for men using violence with their partners or family. Despite this, he had still not made appropriate contact by June 2022 and, on 10 June 2022, he was directed to engage with the Men's Accommodation and Support Service program run by EveryMan. He continued to delay. He still had not attended to engage by the time the Treatment Order was cancelled.
There was also an occasion where he was found selling allegedly stolen coins to the value of approximately $14,000, but no charges were laid from this. This occurred relatively early throughout the Order, in May 2021.
Further, he appears to have continued using drugs at a reasonably frequent level and does not appear to have reduced his use in any appreciable way. While, prior to sentencing, he was, for a while, consuming drugs daily (R v Fry at [62]), his usage while subject to the Treatment Order shows that while his actual usage may have reduced, his dependency is still quite significant. Thus, objective (b) is not being achieved.
Consumption of illicit drugs at the frequency with which Mr Fry is currently engaging is likely to continue to create significant risks to his health. Indeed, his mental health challenges may, indeed, be at least more difficult to address while he is still consuming drugs as frequently as he currently is. Objective (c) seems unlikely to be achieved.
Finally, there is objective (d) of reintegration into the community. This is somewhat more difficult. There are uncertain indicators. While in the community, he has had serious mental health challenges requiring hospitalisation. It is not entirely clear that this is a matter of reintegration. Many people in the community have mental health challenges, including serious ones.
Mr Fry has, on the other hand, engaged well with the work of the Salvation Army shop in Fyshwick and been an active volunteer at the Salvation Army Hub in Braddon. There are signs of compliance with the norms of the community and that he has a capacity now to engage.
While the continued drug use is a huge problem, the evidence does not show that he has not made significant steps to reintegrate into the community. Thus, this ground does not seem to have been made out.
Finally, the last ground is that Mr Fry poses an unacceptable risk to the community.
The Crown submitted that “given his criminal history and given his confirmed previous drug use that there is serious potential for further harm to members of the community”.
There is, of course, a connection between drug use and offending, though it is not entirely clear that it is always a direct relationship.
Ms C Duffy, counsel for Mr Fry, very properly submitted, however, that Mr Fry had not been convicted of a further offence since being subject to a Treatment Order, even while subject to the Order for over 18 months. While possession and use of drugs was, at the time, illegal, there were no convictions, and the continued use of drugs does not necessarily mean that he will reoffend in any other way and so put the community at risk. The same is true for the other matter that was referred to above (at [52]) that occurred in May 2021 and for which no charges were laid.
While there is likely to be a risk of Mr Fry offending further, it is not clear that it was so obvious that this ground is made out.
Nevertheless, the ground that has been made out is sufficient to justify cancellation of the Treatment Order.
Given that it is clear that Mr Fry cannot satisfactorily rehabilitate in the community and, indeed, his rehabilitation in a residential drug rehabilitation program is at least problematic, the only basis on which the Treatment Order could continue is if there were further residential opportunities for him and he could show some genuine and reasonable possibility of gaining abstinence.
There are no currently available residential rehabilitation facilities available for him under a Treatment Order. He has also shown little capacity to translate his often-expressed commitment to abstinence into action. Further, his explanations often seem to stretch the bounds of credibility, such as ingesting drugs by association with people using drugs.
Accordingly, as was done on 28 July 2022, the Treatment Order was cancelled.
Sentencing
On cancelling a Treatment Order, the Court may resentence Mr Fry or impose the sentence that had earlier been imposed.
As to re-sentencing, the Court said in R v Tonna (No 2) at [78]–[79]:
78.Re-sentencing arises where circumstances since the original sentence means that a variation of that sentence is required. For example, where an offender has made substantial efforts at rehabilitation and achieved progress, the original sentence may no longer be appropriate, in the sense that had those efforts and progress been made and achieved before sentence, a different sentence would have been imposed.
79.There will, no doubt, be other circumstances, such as a change in conditions since the sentence was originally imposed so that a different sentence would have been imposed, meaning that the sentence might need to be varied, as was accepted for different sentences imposed because of the effect of the response to the COVID-19 pandemic which had an effect on sentences: R v Yavuz (No 2) [2020] ACTSC 248 at [136]-[141].
Originally, Mr Fry sought an adjournment to explore the rehabilitation options. As noted above (at [34]), that proved unsuccessful. It would possibly have provided an occasion for re-sentencing but, in the event, it has not done so.
In this case Mr Fry has, despite his continued drug use and the challenges of his mental health, engaged well in much of the rehabilitation. Despite the descriptions received by the Court of his engaging well in counselling and groups, the learnings from those processes have not resulted in his cessation of drug use, though it is not as pervasive as prior to his original incarceration for these offences.
Indeed, he has continued to commit to rehabilitation, both by his statement made to the Court on the hearing of the cancellation application, and also because he has continued to seek out other rehabilitation opportunities, although more recently the possibility of rehabilitation at the WHOS facility has not proved available. As noted, he has not been able to translate it into complete success, but there can be some deep-seated issues that require more work from him, especially in the mental health area.
Further, he has shown significant prosocial activities, for which he has received some commendations along the way. He has not been convicted of any further offences. This justifies a shorter than usual non-parole period.
These matters do justify a re-sentencing. Had he made such progress prior to the sentence being imposed, the sentence would have been appropriately moderated. He had, after all, taken the opportunity of a passage of time to engage in rehabilitation: PR v The Queen [2014] ACTCA 40 at [27]-[46]. This requires a small moderation in the sentence to be imposed. Given his failure to engage with EveryMan, a lesser deduction in relation to the offences of violence is appropriate.
Mr Fry spent 108 days in custody prior to sentence. That was taken into account on sentence under s 63(2) of the Sentencing Act. Since then, he has spent 62 days in custody when, on breaches of the Treatment Order, the suspension of the custodial part of the Treatment Order, which is the imprisonment, was provisionally cancelled. This period is, of course, the service of the sentence originally imposed and so must be taken into account. It appears that the appropriate approach is also to take that into account under s 63(2) of the Sentencing Act.
Finally, Mr Fry has been in custody since the Treatment Order was cancelled on 28 July 2022, a further 54 days to today, which must also be taken into account. That is a total of 224 days of the sentence to be imposed which have already been served.
In addition, the period that Mr Fry has spent in residential rehabilitation may also be taken into account. See R v Elphick (No 2) [2015] ACTSC 23 at [88]. See also Akoka v The Queen [2017] VSCA 214 at [104]-[106].
In this case, because of the limited rehabilitation actually achieved by Mr Fry, the allowance should not be substantial and certainly not represented by the whole period where sanctions were imposed and imprisonment also imposed. An estimate of 90 days seems reasonable and hopefully not too generous.
That results in backdating a total of 314 days.
[His Honour then spoke directly to the offender]
Mr Fry, please stand.
(1)The cancellation of the Drug and Alcohol Treatment Order made on 12 January 2021 and amended on 5 February 2021, 17 December 2021, 22 April 2022, 6 May 2022 and 13 May 2022 is confirmed.
(2)The conviction for forcible confinement is confirmed. You are sentenced to one year and 10 months’ imprisonment, commencing on 9 November 2021 and expiring on 8 September 2023. Had you not pleaded guilty, you would have been sentenced to two years and one month imprisonment.
(3)The conviction for assault occasioning actual bodily harm is confirmed. You are sentenced to seven months’ imprisonment, commencing from 9 July 2023 and expiring on 8 February 2024. Had you not pleaded guilty, you would have been sentenced to eight months imprisonment.
(4)The conviction for dishonestly driving a motor vehicle without the owner's consent is confirmed. You are sentenced to six months’ imprisonment, commencing on 9 January 2024 and expiring on 8 July 2024. Had you not pleaded guilty, you would have been sentenced to seven months and two weeks imprisonment.
(5)The conviction for possessing a drug of dependence is confirmed. You are sentenced to one months’ imprisonment, commencing on 9 June 2024 and expiring on 8 July 2024. That is wholly concurrent on the sentence for dishonestly driving a motor vehicle without the owner's consent. Had you not pleaded guilty, you would have been sentenced to six weeks’ imprisonment.
(6)That is an overall sentence of two years and eight months’ imprisonment, commencing on 9 November 2021. A non-parole period of 16 months is set, to commence on 9 November 2021 and end on 8 March 2023.
Mr Fry, it has been a long journey and it has been a mixed one. I am sorry that it has come to this, but, unfortunately, it has. I have tried to take into account all of the positives, as well as weighing properly the negatives, and, unfortunately, at the end of the day, there is a significant period of the sentence that needs yet to be served.
I hope you take the opportunity to work hard, insofar as imprisonment can allow you to do that, on the way in which you can progress the rehabilitation to which you expressed commitment. It may be that you could engage in the Solaris program at the Alexander Maconochie Centre and that might help you at the end of the day.
I have not given any recommendations to the Sentence Administration Board in relation to parole, but you might think of options that might show the Sentence Administration Board that you are continuing to be committed to your rehabilitation and, therefore, they should give you parole. That would be an opportunity for support through Corrective Services, obviously, but also through perhaps some facility, whether a day program or by then there might be another residential program.
I do hope that this will be an opportunity for you to put into practice what you clearly have learnt in the ability to engage pro-socially within the community and that, at the end of the sentence, you may be able to reconnect with, for instance, the Salvation Army Hub at Braddon and be able to use that and the connection there to keep yourself drug and crime free. At the end of the day it is all on you and, unfortunately, it is without the support that you will have through a Treatment Order.
Nevertheless, hopefully what you have done under the Treatment Order, insofar as it is positive, will be able to be put into action and you may be able to have a worthwhile life in the community without resorting to drugs and without resorting to crime.
| I certify that the preceding eighty-four [84] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge. Associate: I Harris Date: 2 November 2023 |
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