R v Lacey (No 2)
[2021] ACTSC 269
•8 October 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Lacey (No 2) |
Citation: | [2021] ACTSC 269 |
Hearing Date: | 7 - 8 October 2021 |
DecisionDate: | 8 October 2021 |
Before: | Mossop J |
Decision: | See [8] |
Catchwords: . | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – application to vary intensive correction order to extend the period for compliance with community service work condition – variation appropriate in the circumstances |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), ss 40, 74 |
Cases Cited: | R v Lacey [2020] ACTSC 241 |
Parties: | The Queen ( Crown) Shaun Lacey ( Offender) |
Representation: | Counsel C Wanigaratne ( Crown) Self-represented (Offender) F Kandamparambil (Community Corrections Officer) |
| Solicitors ACT Director of Public Prosecutions ( Crown) | |
File Number: | SCC 117 of 2019 |
MOSSOP J:
On 11 September 2020 the offender, Shaun Lacey, was sentenced to 27 months’ imprisonment commencing on 11 September 2020 and ending on 10 December 2022: see R v Lacey [2020] ACTSC 241. That sentence was to be served in the community by way of an intensive correction order (ICO). There was an additional condition imposed that the offender undertake 240 hours of community service work within 12 months of that day, that is, before 11 September 2021. The offender has only completed 69 hours with a balance of 171 hours remaining. He is the sole breadwinner of his family. He works full‑time as a plasterer and he has childcare responsibilities of his three children aged 18 months, four years and 11 years. His partner is currently pregnant and due to give birth on 1 November 2021. He is able to dedicate alternative Saturdays and Fridays to the community service work. An officer of ACT Corrective Services recommends that Mr Lacey be given an extension to complete his community service order.
The capacity to amend an ICO arises under s 74 of the Crimes (Sentence Administration) Act 2005 (ACT). The court may amend an ICO on a referral by the Sentence Administration Board (SAB) or on the application of an “interested person”. “Interested person” is defined in s 40 of the Crimes (Sentence Administration)Act as the offender, the Director-General or the Director of Public Prosecutions. The application that was filed identifies the officer as a community corrections officer and states that it is filed “for ACT Corrective Services”. These matters do not demonstrate that the officer is, for these purposes, a delegate of the Director-General.
The proceedings were adjourned so that the applicant could demonstrate that he or some other officer within ACT Corrective Services was a delegate of the Director‑General and hence entitled to make the application or a further application in the same terms.
Following the adjournment, the position was:
(a)The applicant was not a delegate of the Director-General.
(b)No other delegate that might have exercised the power was identified.
(c)While the offender had been served with the application, the officer had not told him that he needed to attend the proceedings but rather told him that he would advise him of the outcome.
The officer who made the application indicated that the position of ACT Corrective Services was now that in order to deal with the same issue it intended to initiate proceedings for breach of the ICO in the SAB. I observed that this path would have obviously been more prejudicial to the offender, would involve more administrative steps and may not provide a route by which the terms of the ICO were appropriately amended.
I indicated that in those circumstances, the application would need to be dismissed because it had not been demonstrated that the jurisdiction of the court had been enlivened by a person who was entitled to do so. However, I indicated that if an oral application was made by a person entitled to make such an application, then this would be a way around this problem. Prior to the adjournment, the Director of Public Prosecutions had reasonably declined to make an oral application in order to permit an order to be made because the application is one in relation to which the Director of Public Prosecutions has no relevant knowledge or interest. The officer of ACT Corrective Services then contacted the offender, who appeared by telephone, and made the relevant oral application.
In my view, it is a clear case in which an order to the effect of the order sought should be made. That is because, having regard to the recommendation made by the community corrections officer, the apparent capacity and motivation on the part of the offender to complete the required hours of community service and the interference of the COVID‑19 pandemic in making community service work readily available, I am satisfied that it was appropriate to amend the condition of the ICO. I will amend it so that the period in which the community service work must be completed reflects the whole of the period of the sentence
The orders of the Court are:
1. The application in proceeding filed on 30 September 2021 is dismissed.
2. Upon the oral application by the offender, the community service work condition on the intensive correction order imposed on charge SCCAN19/2020 is amended so that it requires the offender to undertake 240 hours of community service work by 10 December 2022.
| I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 13 December 2021 |