R v Hanson (No 2)

[2023] ACTSC 158

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Hanson (No 2)

Citation:

[2023] ACTSC 158

Hearing Date:

9 June 2023

DecisionDate:

28 June 2023

Before:

Mossop J

Decision:

1.   The court does not cancel the intensive correction orders made in relation to the offender on 13 May 2022.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – breach of intensive correction order arising from further offending – whether it is in the interests of justice for the court to cancel ICO – ICO not cancelled

Legislation Cited:

Crimes (Sentence Administration) Act 2005 (ACT), ss 11, 62, 65, 73

Criminal Code 2002 (ACT), s 326

Cases Cited:

R v Hanson [2022] ACTSC 102

Parties:

The Queen

Jennifer Hanson ( Offender)

Representation:

Counsel

C Muthurajah ( DPP)

B Bodel ( Offender)

Solicitors

Director of Public Prosecutions

Andrew Byrnes Law Group ( Offender)

File Numbers:

SCC 33 of 2022

SCC 34 of 2022

SCC 66 of 2022

MOSSOP J:

Introduction

1. On 13 May 2022, Jennifer Hanson was sentenced for 12 offences: R v Hanson [2022] ACTSC 102. Eight of the sentences imposed related to fresh charges and four related to sentences previously imposed, for which she was subject to good behaviour orders and in breach of as a result of the fresh charges. Eight sentences of imprisonment were imposed and were each to be served by way of Intensive Correction Order (ICO).

1. The offender has since (on 10 March 2023) pleaded guilty to new charges and the prosecution now seeks that her ICOs be cancelled pursuant to s 65(2) of the Crimes (Sentence Administration) Act 2005 (ACT) (CSA Act).

1. The sentences imposed on 13 May 2022 (which were to be served by ICO) were as follows:

Charge	Starting point	Sentence	Cumulation
Aggravated robbery (SC2022/17)	24 months’ imprisonment	16 months’ imprisonment
Aggravated burglary (CC2021/11832)	12 months’ imprisonment	10 months’ imprisonment	Six months
Possessing a firearm (CC2021/1408)	Eight months’ imprisonment	Seven months’ imprisonment	Three months
Dishonestly obtaining property (CC2022/468)	10 months’ imprisonment	Eight months’ imprisonment	Three months
Attempting to dishonestly obtain property (CC2022/469)	10 months’ imprisonment	Eight months’ imprisonment	Three months
Riding in a motor vehicle without consent (CC2022/466)	10 months’ imprisonment	Eight months’ imprisonment	Three months
Riding in a motor vehicle without consent (CC2022/467)	10 months’ imprisonment	Eight months’ imprisonment	Three months
Using a false document (suspended sentence) (CC2021/3748)	Three months’ imprisonment	Two months
Total	39 months’ imprisonment

1. No further action was taken on the breach of the good behaviour orders relating to:

(a)Driving while suspended (CC2021/3750);

(b)Driving with prescribed drug (methamphetamine) (CC2021/6480);

(c)Obstructing or resisting a Territory public official (CC2021/6640); and

(d)Unlawful possession of stolen property (CC2021/4275).

Cancellation and later reinstatement of ICO

1. Following the imposition of the sentence on 13 May 2022, Ms Hanson was issued an ICO Breach Report on 5 July 2022. The report alleged that she had breached conditions 5 and 6 of her ICO, namely by failing a urinalysis test on 23 May 2022 and contrary to direction, failing to report to ACT Corrective Services on 7, 10 and 14 June 2022. A message was left on the offender’s phone number on 16 June 2022 but was not returned.

1. The offender left voicemails to her Community Corrections Officer on 21 and 23 June 2022 and requested a call back, but as her officer was on leave, the offender’s calls were not returned. On 4 July 2022, ACT Corrective Services left a message with the offender requesting that she book a supervision appointment. The offender did not return the call.

1. On 14 July 2022 the Sentence Administration Board (SAB) held a hearing pursuant to s 62 of the CSA Act in order to consider the alleged breach. The board found that breach had occurred and therefore cancelled the ICO relating to SC2022/17. The other ICOs were not cancelled.

1. On 28 February 2023, the cancelled ICO was reinstated by the SAB pursuant to s 73 of the CSA Act. At that point she had one month and 21 days to complete of her sentence on SC2022/17.

Fresh offences of obtain property by deception

1. On 10 March 2023, the offender pleaded guilty and was convicted by the ACT Magistrates Court of three offences of obtain property by deception (CC2022/6186, CC2022/6187, CC2022/6188), contrary to s 326 of the Criminal Code 2002 (ACT).

1. The Statement of Facts provided by the AFP records that the offences occurred on 18 June 2022, just over a month after the imposition of the original sentence. The offending involved purchases of alcohol, tobacco and rolling papers with the use of a stolen credit card. The value of the purchases totalled $218.27. The offending involved a co-offender, being her partner who had been released from jail on parole just after the offender was sentenced. On 25 June 2022, Ms Hanson was arrested for the offences and granted bail on the same day by the magistrate.

1. The offender has not yet been sentenced for these convictions. The matter was listed before the Magistrates Court on 9 June 2023 and I assume that it has been further adjourned pending a decision in these proceedings.

Legislation

1. Pursuant to s 65(2) of the CSA Act, this court must cancel the offender’s remaining ICOs where they have been convicted for a Territory offence unless cancellation is not in the interests of justice. If the court determines that it is not in the interests of justice to cancel the order, then the court must give reasons for its decision: s 65(7) of the CSA Act.

Consideration

1. The position reasonably adopted by the prosecution was that the offences were committed shortly after the sentence was imposed and were of similar nature to some of the offences for which she was originally sentenced. The prosecution submitted that, notwithstanding the apparent motivation and incentive to rehabilitate, the offender had slipped back into amphetamine and methamphetamine use very shortly after the imposition of the sentence. As a consequence, there would be no basis for finding that it is not in the interests of justice to cancel the ICOs.

1. The offender gave evidence herself and also from a support worker from the Yeddung Mura organisation. She also tendered a number of documents which demonstrated that during the period when her ICO was cancelled by the SAB and prior to its reinstatement some seven months later, the offender took the opportunity to engage in programs and courses within the Alexander Maconochie Centre (AMC) and was on the pathway to becoming a peer mentor within the Peer Mental Health program within the AMC.

1. The evidence given by the offender herself indicated a recognition that she had not taken her obligations under the ICO seriously enough. The cancellation of the ICO and the time in prison had led to a change in her approach to those obligations. She also indicated that she remained motivated to maintain and build upon her relationship with her daughter who she sees each weekend. Notwithstanding the very positive and enthusiastic evidence given by the offender, I treat that evidence with some caution having regard to her history.

1. The evidence of Ms Brown, from Yeddung Mura, indicated that she retains ongoing support from that organisation and the documentary records are consistent with that. She made particular reference to assisting the offender to overcome her severe anxiety.

1. I consider that it is not in the interests of justice to cancel the ICO. My reasons for that conclusion are as follows.

1. The offending involved the same kind of offending for which some of the earlier sentences were imposed, typical of an illicit drug user. The failure to comply with supervision obligations is consistent with the offender’s evidence that she did not fully appreciate the gravity of those obligations. However, both the offending and the non‑compliance occurred early on in the period of the ICO and there is not evidence of any further offending or failure to comply with supervision obligations.

1. The regime of supervision by the SAB has worked well. The Board has quite appropriately exercised the power to cancel and reinstate the relevant ICO when the circumstances have warranted it. This has led to the offender spending an additional seven months in custody. That period in custody has been effective to bring home to the offender the gravity of her obligations. Her attitude to compliance with obligations appears to have changed as a result of that period in custody and she has taken the available opportunities in custody to complete relevant programs.

1. The offender has significant supports in the community including stable housing and contact with her eldest child. Although it is not clear whether she has taken up the opportunities of rehabilitation programs that may be available to her with Toora Women Inc or Canberra Recovery Service, they remain options available to her if the ICOs are not cancelled. The existence of those supports and programs within the community provide a reasonable foundation for her rehabilitation.

1. The maintenance of the ICO in place, including the capacity that they be cancelled by the SAB, will retain maximum incentive for and pressure upon the offender to continue on a path of rehabilitation. To cancel the ICOs in the present circumstances would, to a substantial degree, involve an abandonment of hope that such rehabilitation is possible. It is best to maintain the ICOs on foot in which her progress may be closely supervised. The approach may be summarised as “hope and verify”.

1. Having reached the conclusion that it is not in the interests of justice to cancel the ICOs, it is not necessary to address the question, raised by the prosecution, as to whether or not cancellation would involve cancellation of all the ICOs or only those which were being served at the time of the offending. This issue would have a very significant effect on the extent of cancellation. This is related to the general issue as to the operation of s 11 of the CSA Act, in particular, whether that allows a single ICO which runs for two or four years or whether those limits apply to each individual sentence. That is a significant issue which will need to be resolved in a case where it is required to be determined it and the issue is properly argued.

Order

1. The order of the Court is:

1.     The court does not cancel the intensive correction orders made in relation to the offender on 13 May 2022.

I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Mossop

Associate:

Date: