R v Jukes

[2008] NSWSC 126

CITATION:	R v Jukes [2008] NSWSC 126
HEARING DATE(S):	01/02/2008, 20/02/2008
JUDGMENT DATE :	29 February 2008
JUDGMENT OF:	Hoeben J
DECISION:	Sentenced to imprisonment for a period of 12 months to commence on 29 November 2007 and to expire on 28 November 2008 with a balance of term of 12 months to expire on 28 November 2009. The earliest date eligible for parole is 28 November 2008.
CATCHWORDS:	CRIMINAL LAW - Breaches of s 12 good behaviour bond - break enter and steal offence, abusing amphetamines and failure to comply with directions of Probation and Parole Service - revocation of s 12 bond - special circumstances due to offender's pregnancy - sentence to include a period of imprisonment.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Sentence
CASES CITED:	DPP v Burrow & Anor [2004] NSWSC 433 DPP v Cooke & Anor [2007] 168 A Crim R 379 R v Buckman (1988) 47 SASR 303 at 304 R v Marston (1993) 60 SASR 320 at 322
PARTIES:	Crown Lacy Lee Jukes - Offender
FILE NUMBER(S):	SC 2005/3574001
COUNSEL:	Mr Patricia Adey - Crown Mr J Stratton SC - Offender
SOLICITORS:	Solicitors for Public Prosecutions - Crown Solicitor for Legal Aid Commission of NSW - Offender

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Friday 29 February 2008

2005/3574001 – REGINA v Lacy Lee JUKES

REMARKS ON SENTENCE

1 HIS HONOUR: On 24 August 2006 Lacy Lee Jukes (the offender) pleaded guilty to the manslaughter of Mack Tepeanapene Hati on 13 September 2003. The offender was initially charged with murder and spent 90 days in custody before being released on conditional bail.

2 On 13 October 2006 in accordance with s 12 of the Crimes (Sentencing Procedure) Act 1999 (the Act) the offender was sentenced to imprisonment for 2 years with a non-parole period of 12 months and a balance of term of 12 months. The non-parole period was to commence on 13 October 2006 and to expire on 12 October 2007. The balance of term was to expire on 12 October 2008. The sentence was wholly suspended for a period of 2 years on condition that the offender be of good behaviour for a period of 2 years and be liable to be called up for sentence at any time within that period for any breach of that condition. It was a further condition that within 48 hours the offender report to an officer of the Probation and Parole Service at Tamworth and accept the supervision and obey all reasonable directions of the officers of that Service for a period of 2 years, or for such lesser time as specified by the Service.

3 On 24 December 2006 the offender and her then partner broke into her maternal grandmother’s house and stole a quantity of jewellery. She was charged with that offence in March 2007, pleaded guilty and was sentenced in the Tamworth Local Court on 21 November 2007. She was sentenced to imprisonment for 12 months with a non-parole period of 6 months, such sentence to be served by way of periodic detention. She has commenced serving that sentence.

4 There is before the Court a report from the Probation and Parole Service dated 6 December 2007. The effect of that report is that the offender has not complied with directions of officers of the Service to attend counselling to address her continued substance abuse and mental health issues (depression). The offender frankly admitted to officers of the Service and confirmed in her oral evidence that she has been abusing amphetamines since the death of Mack Hati. The break and enter offence was committed to finance her own and her then partner’s addiction to amphetamines.

5 In her evidence the offender explained that she found attending counselling difficult because when she was aged 8 a counsellor had laughed at her complaints of sexual molestation. Thereafter she had found it almost impossible to confide in counsellors. The offender did attend a counselling session at the Tamworth Community Health Centre on 23 January 2008 but then failed to attend follow up sessions. The report of that attendance tends to confirm her evidence about having difficulty in attending counselling.

6 The offender said that she had ceased her relationship with her then partner shortly after the date of the break enter and steal offence and has not resumed contact with him. He is not the father of any of her children.

7 The offender was born on 11 November 1982 and is now 25. Her three oldest children are residing with an aunt and have done so since September 2003. She has the care of the two younger children aged 2 and 3. She is currently four and a half months pregnant.

8 The offender agreed that she had been moving around constantly since she entered into the good behaviour bond. She explained this by reference to bad relationships, the need to avoid previous partners who were likely to harm her and because she was experiencing problems with family and friends. No doubt her amphetamine abuse during the period would also provide an explanation. Significantly her mother was present in Court and remains fully supportive of her.

9 The offender said that she ceased using amphetamines about six months ago. Given the level of the offender’s dependence on amphetamines, and her failure to address her addiction by participating in counselling and rehabilitation, I am not persuaded that she has overcome that problem. It is, of course, to be hoped that she has done so given her pregnancy.

10 It should be noted in the offender’s favour that there has been something of a turnover in the officers from the Probation and Parole Service who have been in charge of her case (three in number) and this has not assisted the offender in building up a strong relationship with any of them.

11 Generally speaking the offender could offer no real explanation for her breaches of her obligations under s 12 of the Act other than her amphetamine addiction and her difficulties with attending counselling. Against that background I am not satisfied that I can give any weight to the offender’s undertaking that if she were given another chance she would attend counselling as and when required by officers of the Probation and Parole Service.

Consideration

12 The provision for suspended sentences is to be found in s 12 of the Act. Relevantly it provides:

“12(1) A court that imposes a sentence of imprisonment on an offender (being a sentence for a term of not more than 2 years) may make an order:
(a) suspending execution of the whole of the sentence for such period (not exceeding the term of the sentence) as the court may specify in the order, and
(b) directing that the offender be released from custody on condition that the offender enters into a good behaviour bond for a term not exceeding the term of the sentence.
…”

13 Section 98(3) of the Act deals with a s 12 bond as follows:

“98(3) In the case of a good behaviour bond referred to in section 12, a court must revoke the bond unless it is satisfied:

(a) that the offender’s failure to comply with the conditions of the bond was trivial in nature, or
(b) that there are good reasons for excusing the offender’s failure to comply with the conditions of the bond.”

14 The consequences of the revocation of a s 12 bond are set out in

s 99(1)(c):

“99(1) If a court revokes a good behaviour bond:

…

(c) in the case of a bond referred to in section 12:

(i) the order under section 12 (1) (a) ceases to have effect in relation to the sentence of imprisonment suspended by the order, and

(ii) Part 4 applies to the sentence, as if the sentence were being imposed by the court following revocation of the good behaviour bond, and section 24 applies in relation to the setting of a non-parole period under that Part.”

Part 4 of the Act deals with terms of imprisonment.

15 Quite clearly the offender’s failure to comply with the conditions of the bond was not trivial in nature and s 98(3)(a) does not apply. The contrary was not submitted.

16 The only reasons offered for the offender’s breaches of the conditions of the bond were her amphetamine addiction and the difficulty she has in participating in counselling. I am not persuaded that these constitute “good reasons” within the meaning of s 98(3)(b). (DPP v Burrow & Anor [2004] NSWSC 433, DPP v Cooke& Anor [2007] 168 A Crim R 379).

17 The fact of the offender’s pregnancy is not a matter which I can take into account as a “good reason” for excusing the offender’s failure to comply with the conditions of the bond. In Cooke, Howie J said:

“[34] Hidden J in Burrow held that the subjective circumstances of the offender are generally irrelevant in determining whether there are good reasons to excuse the breach under s98(3)(b) except to the extent that those subjective circumstances are relevant to a consideration of the breach itself. … But subjective features of the offender at the time of the breach proceedings are irrelevant to the decision whether good reasons exist to excuse the breach. They may, of course, have some role to play in what order is made after revocation when determining whether the consequential sentence is to be served by way of fulltime custody, or an available alternative and the length of the non-parole period to be imposed. But they cannot affect the decision whether to revoke the bond.”

18 On the facts of this case it seems to me inevitable that the s 12 bond must be revoked and I do so.

19 The next question is as Howie J put it, what is an appropriate “consequential sentence”. In that regard it needs to be kept in mind that the offender is currently serving a sentence of periodic detention in respect of the break enter and steal offence.

20 I fully reviewed the offender’s circumstances when I passed sentence on 13 October 2006. There has been little change since that date and to the extent that there has been a change, I have referred to that in these remarks. Apart from the break enter and steal offence and her amphetamine addiction, the most significant change to her circumstances is her current pregnancy. That latter matter has troubled me when considering what is to be done with the offender and I have endeavoured to build some leniency into the course which I have adopted.

21 In addition to the circumstances of the offence of manslaughter, for which the offender now has to be sentenced, the Court needs to take into account that sentence is to be passed as a result of breaches of a s 12 bond. In R v Marston (1993) 60 SASR 320 at 322 King CJ said, in relation to such circumstances:

“I repeat what I said in R v Buckman (1988) 47 SASR 303 at 304:
“There is a clear legislative policy that in general a breach of a condition of a recognisance upon which a sentence has been suspended, should result in the offender serving the sentence which was suspended. A sentence of imprisonment is imposed and suspended only where imprisonment is fully merited and the Court considers it appropriate to give the offender a last chance to avoid imprisonment by leading a law abiding life. It is intended to be a sanction suspended over the head of the offender which is to be activated if there is a lapse into non law abiding ways. The Court will not lightly interfere with the ordinary consequence of a breach of the recognisance.”
It is of great importance that the Courts adhere to that principle. Departure from it by the non-revocation of suspended sentences tends to undermine the integrity of the system of suspended sentences and their effectiveness as a means of deterring future offenders.”

22 That approach was endorsed by Howie J in Cooke as follows:

“[23] With respect I would endorse those sentiments. There is nothing more likely to bring suspended sentences into disrepute than the failure of courts to act where there has been a clear breach of the conditions of the bond by which the offender avoided being sent to prison. Notwithstanding what has been stated about the reality of the punishment involved in a suspended sentence, if offenders do not treat the obligations imposed upon them by the bond seriously and if courts are not rigorous in revoking the bond upon breach in the usual case, both offenders and the public in general will treat them as being nothing more than a legal fiction designed to allow an offender to escape the punishment that he or she rightly deserved.”

23 On the facts of this case I see no reason to depart from the sentence which I previously passed. Accordingly I propose to impose a sentence of imprisonment for a period of 2 years with a non-parole period of 1 year. I have allowed a parole period of 1 year in view of the offender’s pregnancy and to have regard to her need for rehabilitation in respect of her amphetamine addiction. These matters constitute special circumstances. I propose that the sentence be partially concurrent with the sentence she is already serving in respect of the break enter and steal offence.

24 As I noted in my previous remarks on sentence and in these remarks, the offender spent 90 days in custody before being released on bail. I propose to backdate the commencement of this sentence to allow a credit to the offender for the period which she spent in custody.

25 Lacy Lee Jukes you are sentenced to imprisonment for a period of 12 months to commence on 29 November 2007 and to expire on 28 November 2008 with a balance of term of 12 months to expire on 28 November 2009. The earliest date you will be eligible for parole is 28 November 2008.

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