R v Joseph Ennis
[2014] ACTSC 369
•4 November 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Joseph Ennis |
Citation: | [2014] ACTSC 369 |
Hearing Date(s): | 24 September 2014, 4 November 2014 |
DecisionDate: | 4 November 2014 |
Before: | Refshauge J |
Decision: | 1. It be declared that Joseph Ennis has breached the Good behaviour order imposed by Nield AJ on 17 April 2012. 2. Under s 108 of the Crimes (Sentence Administration) Act 2005 (ACT), the Order be amended by: (a) extending the period of good behaviour to a further period of twelve months, to end on 3 November 2015; (b) extending the number of hours of community service work to one hundred and eight hours, to be completed within twelve months from 4 November 2014; and (c) requiring Joseph Ennis to be subject to supervision by the Director-General, or her delegate, and obey all reasonable directions of the person delegated to supervise him for twelve months from 4 November 2014. 3. It be noted that Joseph Ennis has already performed eight hours of community service work. 4. Joseph Ennis be directed to report to ACT Corrective Services at Eclipse House, London Circuit, Canberra City by 4:00 pm on 4 November 2014, for the purpose of arranging ongoing supervision and community service. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Judgment and Punishment – Sentencing – Re-sentencing – Breach of Good Behaviour Order – Failure to complete community service condition to Good Behaviour Order |
Legislation Cited: | Crimes Act 1900 (ACT), s 24 Crimes (Sentence Administration) Act 2005 (ACT), s 108 |
Cases Cited: | Channon v The Queen (1978) 33 FLR 433 |
Parties: | The Queen (Crown) Joseph Ennis (Offender) |
Representation: | Counsel Mr K Lee (Crown) Ms K McCann (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich & Associates (Offender) | |
File Number(s): | SCC 7 of 2011 |
Refshauge J:
Despite the considerable contribution that illicit drug use makes to criminality in the community, alcohol remains a problem for those addicted to it. Alcohol abuse remains a very significant source of crime and leads the addict to unhealthy and anti-social behaviour and situations.
This is the situation of Joseph Ennis, who appears before me because of his breach of community service condition to a good behaviour order.
The offence and the sentence
On 17 April 2012, Mr Ennis was convicted by Nield AJ of the offence of assault occasioning actual bodily harm. That offence, contrary to s 24 of the Crimes Act 1900 (ACT), attracts a maximum penalty of five years’ imprisonment.
His Honour, in the reasons for sentence (R v Ennis (Unreported, ACTSC, Nield AJ, 17 April 2012)) set out the facts of the offence. I do not need to repeat them, save to say that it was an offence of domestic violence where both Mr Ennis and his partner were drunk and fought “over money”. Mr Ennis’ partner suffered a spinal fracture to the left forearm and a laceration to the outside of her lower leg.
His Honour also described the subjective circumstances of Mr Ennis and, again, I do not need to repeat what he said. In summary, he is a forty-six year old man who had a somewhat challenging but not traumatic or significantly disturbed childhood.
He has been in employment from time to time and has recently been working casually in cleaning and labouring position, though the work is not constant.
He and his partner have been together for twenty-seven years and have a son aged twenty-one.
Mr Ennis has had a long history of cannabis and alcohol abuse. Indeed, his alcohol abuse has led to his criminality on, he says, every occasion. It has also caused two motor vehicle accidents and occasions of self-inflicted accidental injuries. He is assessed in the very helpful Court Alcohol Drug Assessment and Service (CADAS) Report as dependent on alcohol.
He has a short criminal record prior to the offence, including one conviction for common assault committed in 2006. He has sixteen traffic offences on his record, including convictions for driving with the prescribed concentration of alcohol.
Nield AJ noted that ordinarily an offence of assault occasioning actual bodily harm as an offence of domestic violence would attract a sentence of imprisonment. He considered, however, that it was at the lower end of seriousness, though still a serious offence.
His Honour then made a good behaviour order for two years, with a condition that Mr Ennis perform one hundred hours of community service within twelve months.
The breach
Mr Ennis appears before me because he has breached the good behaviour order by failing to complete the community service work conditions. He has eighty-one hours of work left to complete of the original order. He admitted the breach.
Under s 108 of the Crimes (Sentence Administration) Act 2005 (ACT), the Court, if satisfied that an offender has breached any of the offender’s obligations under a good behaviour order, not made when a sentence of imprisonment was suspended, may:
(a)take no further action;
(b)give the offender a warning about the need to comply with the offender’s good behaviour obligations;
(c)give the Director-General directions about the offender’s supervision;
(d)amend the good behaviour order;
(e)if the offender has given security under the order—
(i)order payment of the security to be enforced; and
(ii)order the good behaviour order to be cancelled on payment of the security (if the term of the order has not already ended);
(f)cancel the order and then re-sentence the offender.
It is clear that there is no default position that requires cancellation of the good behaviour order and the consequent imposition of the sentence that was suspended.
The circumstances of the breach are that Mr Ennis had performed eight hours of community service work on 16 January 2013. He was directed to perform further work on 23 and 30 January 2013 and 6, 11 and 13 February 2013 as directed. He did not do so.
He explained that, at the time of the breaches, he was abusing alcohol and cannabis and just could not organise himself to present at ACT Corrective Services in order to perform the work. This is unsurprising given his alcohol dependence as noted above but, of course, it is not exculpatory.
Ms K McCann, who ably represented Mr Ennis, acknowledged that, as I pointed out in Saga v Reid [2010] ACTSC 59 at [99]-[101], a breach of a good behaviour order must be treated seriously or else the sentencing option will cease to be a serious sentencing option. Conditional liberty is only likely to be the facilitation of reform of the conditions are rejected.
Ms McCann, however, submitted that Mr Ennis had recently made efforts to address his addiction. This, she submitted, would justify not taking a severe view of the breach. As I also pointed out in Saga v Reid at [96], addiction may require a number of failed attempts at reform before an addict can successfully manage it. Though I was there referring to illicit drug addiction, alcohol is a drug of addiction too, and addiction to it has much in common with addiction to illicit drugs.
It seems to me that if breach action is the trigger for an offender subject to a good behaviour order genuinely to face up to the need to comply with the obligations under his or her conditional liberty, proper sentencing jurisdiction does not require a necessarily unduly punitive response in order to maintain the integrity of the system of conditional liberty under, for example, a good behaviour order.
Unfortunately, some defence counsel do not prepare material from which I can see the efforts that an offender has taken to address his or her criminal behaviour. Ms McCann, however, had taken that important step and helpfully so.
In the first place, she pointed out that Mr Ennis had committed no further offences. This is a very important matter, for that is the fundamental objective of the criminal law, namely, as Brennan J described it in Channon v The Queen (1978) 33 FLR 433 at 437, the protection of society which is achieved by the prevention of crime and the eradication of recidivism.
That is important in this case, for there has been quite a period since Mr Ennis was released by Nield AJ on 17 April 2012. Although the breach report was made to the Court on 22 April 2013, the summons originally issued could not be served and that caused further delay. Then an administrative error lead to the Pre-Sentence Report not being prepared. Thus there were delays in having the matter brought to Court. The result, however, is that there has been nearly two and a half years during which Mr Ennis has not further offended.
In order to ensure that the protection of society is most durably assured (see French CJ in Hogan v Hinch (2011) 263 CLR 506 at 537; [82]), Mr Ennis has taken steps to address the factors that have caused or contributed to his offending and rehabilitate.
Thus, he has been assessed by Directions ACT, one of the leading drug rehabilitation agencies in Canberra, and has arranged to participate in drug and alcohol counselling. Ms McCann arranged that I had a letter from that agency to confirm that.
He has also been accepted into the Men and Anger Program with the Canberra Men’s Centre, a most respected agency which assists men who need support to address welfare and criminal justice issues. Again, Ms McCann ensured that I had a letter from that agency to confirm a place in the program for Mr Ennis.
He has also an Employment Pathway Plan with MAX Employment through Centrelink, which requires him to take steps to obtain employment, and a copy of the Plan was tendered without objection. A number of the steps he was required to undertake under the Plan were compulsory, which meant that the sanction for non-compliance would be a termination of his benefits.
These matters were consistent with the matters set out in the helpful CADAS Report, which also indicated that Mr Ennis had agreed to a referral to the Alcohol and Drug Services Medical Service for a medical review to confirm his symptoms of depression and anxiety.
An important matter about which Mr Ennis gave evidence, confirmed in the CADAS Report, was that his partner was also addressing her alcohol consumption. Both had commenced the Directions ACT Smart Recovery Program, having completed two sessions, and were accessing counselling at relationships Australia.
Both the CADAS Report and the Pre-Sentence Report noticed that, despite an assessed high level of cannabis dependence, he had ceased its use and was currently abstinent. The Pre-Sentence Report noted that
[h]is willingness to participate with a community service condition at this point in time appears to be convincing.
These are all important and reassuring steps towards Mr Ennis getting his life back in order to be able to avoid future criminality. I am conscious, however, of the need for sceptical assessment of those who assert that they have turned the corner. See, for example, the comments of the New South Wales Court of Criminal Appeal in R v Govinden (1999) 106 A Crim R 314 at 319; [35].
In this regard, I note that Mr Ennis told Nield AJ that he and his partner had ceased to drink alcohol. That did not last for the length of the good behaviour order, perhaps for not very long at all.
As a result, I adjourned the sentencing proceedings to permit Mr Ennis to continue with the steps towards rehabilitation that he had taken.
Although I did not make a Deferred Sentence Order, I did indicate that if Mr Ennis were to show continual commitment to his reform, I would likely mark the breach, having regard to the short period of custody following his arrest, by extending the period of the good behaviour order and increasing the community service work requirements by, in effect, allowing him to start again.
Mr K Lee, who appeared helpfully for the prosecution, submitted that he did not intend that I should proceed in any other way. I have now read reports of the progress Mr Ennis has made.
Mr Ennis, please stand:
1. I find that you have breached the Good behaviour order imposed by Nield AJ on 17 April 2012.
2. Under s 108 of the Crimes (Sentence Administration) Act 2005 (ACT), I amend the order by:
(a) extending the period of good behaviour to a further period of twelve months, to end on 3 November 2015;
(b) extending the number of hours of community service work to one hundred and eight hours, to be completed within twelve months from today; and
(c) requiring you to be subject to supervision by the Director-General, or her delegate, and obey all reasonable directions of the person delegated to supervise you for twelve months from today.
3. I note that you have already performed eight hours of community service work.
4. I direct that you report to ACT Corrective Services at Eclipse House, London Circuit, Canberra City by 4:00 pm today, for the purpose of arranging ongoing supervision and community service.
| I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Refshauge. Associate: Date: 27 January 2015 |
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