R v Lacey (No 2)

[2021] ACTSC 269

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:

1. 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.

1. 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.

1. 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.

1. 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…