R v JW
[2014] ACTSC 390
•15 December 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v JW |
Citation: | [2014] ACTSC 390 |
Hearing Date(s): | 15 December 2014 |
DecisionDate: | 15 December 2014 |
Before: | Murrell CJ |
Decision: | Good behaviour order cancelled and offender resentenced to 3 years and 1 month of imprisonment. Eight months to be served by full‑time imprisonment, following which sentence is suspended upon the offender entering into a good behaviour order. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – breach of good behaviour order – sexual assault – rehabilitation of adult sex offender |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 110 |
Parties: | The Queen (Crown) JW (Offender) |
Representation: | Counsel Ms P Burgoyne-Scutts (Crown) Mr R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number(s): | SCC 112 of 2003 |
MURRELL CJ:
FACTS
The offender is before the Court for the breach of a good behaviour order.
On 18 November 2002, he committed a very serious offence in the ACT involving the sexual assault of his daughter. On 16 April 2004, the former Chief Justice imposed a four year sentence, suspended after the offender had served 11 months. He had served 11 months at the time of sentence.
The suspended sentence was the subject of a five year good behaviour order. Initially, the offender was to attend the Bridge Program and undertake a sex offender’s program at the end of the Bridge Program. On 3 August 2004, the offender exited the Bridge Program. He was to enroll immediately in a similar program in Morriset, New South Wales. He was scheduled to attend Morriset on 5 August 2004 but he did not attend. Later, he asserted that he had had insufficient funds to travel to Morriset, but that assertion lacks credibility because he had made prior arrangements to accommodate himself in Sydney.
On 29 December 2004, the offender was resident in Sydney when the complainant in relation to the 2002 ACT offence travelled to Sydney, met up with the offender and resided with him for a short period. Between 29 December 2004 and 3 January 2005, the offender sexually assaulted her on a number of occasions. On 5 January 2005, he was arrested in New South Wales and extradited to the ACT in relation to the breach of the ACT good behaviour order. On 19 April 2005, he was released on bail in the ACT to go to the William Booth Centre in Sydney. He did not arrive at the Centre.
He was arrested. On 17 August 2006, he was sentenced in New South Wales in relation to the offences that had occurred in December 2004 and January 2005. He received an effective sentence of 12 years’ imprisonment with a nine year non-parole period from 1 February 2005. The non-parole period expired on 31 January 2014. The offender completed a sex offender program, a CORE program, in June 2014. He was released from custody in New South Wales on 27 October 2014, by which stage he had served approximately nine years and nine months’ imprisonment.
SUBJECTIVE CONSIDERATIONS
Upon his release, the offender was arrested and extradited to the ACT to face the breach of the good behaviour order imposed in April 2004. It is that breach that is before the Court today.
The original offence in November 2002 involved a serious sexual assault by the offender on his then 17 year old daughter. His daughter was and is intellectually disabled. One of the reporters puts her intellectual age at between about six and nine years. The matter was extremely serious. Not only was the offence committed by a father against his daughter, but she was, at the time, in his immediate care. The victim’s intellectual disability was an element of the offence charged.
The sentencing judge, Higgins CJ, noted that at the time that the offender came before the Court, he had already served 11 months in Goulburn Prison. His Honour noted subjective circumstances affecting the offender. He himself had intellectual problems. He was below average range. He had experienced an impoverished and dysfunctional rural upbringing. His parents were alcoholics. He was the oldest of five children and was subjected to harsh, physical abuse in the guise of training.
At school, he was a slow learner. He did not complete Year 7. His behaviour at school was problematic. He displayed violence and drank alcohol at school. After leaving school, he engaged sporadically in unskilled employment. He has an extensive history of minor head injury. There have been losses of consciousness, mostly associated with fighting, and he has a poor memory. He has been assessed by a number of reporters as having a moderate to high risk of reoffending and as requiring sex offender treatment.
Apart from his history of substance abuse and sex offending, the offender has a history of depression.
The Crown submitted, and I accept that the original offending conduct was very serious; that the breach was of the most serious possible kind.
The offender says that he has completed all the programs that are available in New South Wales prisons in relation to substance abuse and sex offending. As I have mentioned, he finished the custody based CORE program in New South Wales in mid 2014. There is a follow up program available in the community to persons who have completed the custodial part of that program. The offender prefers to reside in New South Wales. He has some family support there and the New South Wales parole authorities have approved residence with his brother, who also has a history of alcohol abuse. However, alcohol abuse is not currently a problem for the offender’s brother.
Residence in New South Wales, would give the offender continuity in relation to supervision by New South Wales Corrective Services entities. Moreover the CORE program that he undertook in gaol could be followed up in the appropriate way. The majority of his offending conduct occurred in New South Wales.
It is appropriate that he return to New South Wales to continue under the supervision of New South Wales Corrective Services. That is also what he wants to do and where he has suitable accommodation. Further, the presence of the victim in the ACT means that it is appropriate that the offender be encouraged to reside elsewhere.
The conditions of his release to the community that have been suggested by ACT Corrective Services dovetail reasonably well with the current parole conditions in New South Wales. Where there are differences, minor amendments can be made to ensure that the ACT conditions are compatible with those in New South Wales.
The offender has served a very long period in custody in New South Wales. It is appropriate that the unserved part of the ACT sentence be, in effect, reimposed. It is also appropriate that the offender be released very soon. When he is released, the overall picture of imprisonment will be that he will have served a very significant percentage of the effective head sentence of about 12 and a half years, something in the vicinity of at least 10 years.
When one looks at the relationship between the total effective sentence of 12 and a half years and the fact that the offender will of actually served something like 10 years, it can be seen that the period served is very lengthy by ACT standards. It is also in everybody’s interests for the offender to spend a significant period under close supervision in the community because that will provide the best protection for the public after the parole period expires.
SENTENCE IMPOSED
Pursuant to s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) I am satisfied that the offender has breached his good behaviour obligations. The breach is admitted. He has breached the obligations in two respects. First, he failed to obey directions to go to Morriset in 2004. Second, he committed further offences in late 2004/ early 2005.
I cancel the good behaviour order and resentence the offender to a period of three years and one month of imprisonment from 13 May 2014. I select that date because it takes into account the fact that the offender spent three and a half months in custody between January and April 2005, he has been in custody since 27 October 2005 and he was subject to a suspended sentence from 16 April to 3 August 2004 when he was undertaking the Bridge Program. Attending that program should, to some extent, be credited as full‑time imprisonment.
The offender is to serve the sentence by way of full‑time imprisonment until 12 January 2015. The sentence is suspended from that date upon the offender entering into a good behaviour order for a period of two years and five months. The good behaviour order is subject to the conditions listed below.
In the following conditions, the reference to the offender’s supervising officer is a reference to the offender’s supervising officer within the New South Wales Probation and Parole Service. The expression “immediate family members” of the victim means the victim, the victim’s mother, the victim’s siblings and the children of the victim and her siblings.
The conditions are as follows:
a) Upon his release, the offender is to go straight to New South Wales and report as soon as reasonably practicable to the New South Wales Probation and Parole Service as directed by ACT Corrective Services.
b) He is not to enter the ACT except with the prior express approval of the New South Wales Probation and Parole Service or at the direction of the ACT.
c) The offender must not contact or attempt to contact or cause another person to contact or attempt to contact by any means either directly or indirectly, alone or in company, the victim or the immediate family members of the victim of the offences without the express prior approval of his supervising officer.
d) He must not approach or cause another person to approach the victim or the immediate family members of the victim of the offences without the express prior approval of his supervising officer.
e) He must not assault, threaten, intimidate or harass or cause another person to do so by any means either directly or indirectly, alone or in company, the victim or the immediate family members of the victim of the offences.
f) He must not damage, destroy or interfere with the property belonging to the victim or the immediate family members of the victim of the offences or cause another person to do so.
g) He must not be in the company of any person under the age of 16 years unless accompanied by a responsible adult as determined by his supervising officer.
h) He must not communicate with any person under the age of 16 years other than those approved by the supervising officer by any means including SMS, text messaging, Internet or written communication.
i) He must abstain from alcohol abuse.
j) He must, if so directed by his supervising officer, seek assistance in controlling his abuse of drugs and/or alcohol.
k) He must not use or be in possession of a prohibited drug or a substance.
l) He must undertake testing for drug and or alcohol use where facilities are available at the direction of the supervising officer.
m) He must if so directed by his supervising officer, enter a residential rehabilitation centre and must not discharge himself without the approval of that officer.
n) Between 1 and 31 January 2017, he is to report to ACT Corrective Services in person or by telephone or otherwise as directed by ACT Corrective Services, and thereafter follow their directions for the remainder of the period of the good behaviour order.
| I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 3 February 2015 |
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